Yes, Markos, you CAN be prosecuted for it

Doing the homework that the online Left was just too outraged to do

America and its institutions have, and are governed by, rules and regulations. For the most part, this is a good thing (despite the laments of Court TV's Catherine Crier that the American people have acquiesced to "deliberate ignorance and passive acceptance of...shackles [due to] the omnipotence of the rule of law"), as clear and known boundaries and limitations are set for acceptable actions, thus (ostensibly) holding us all to the same standard.

Our friend Markos Moulitsas Zuníga, though, doesn't like this fact, and has apparently decided that he is the one who judges not only which rules count, but which rules are actually American. Oh, and to quote him: "[A]nyone that thinks otherwise, quite frankly, is legitimately and objectively un-American." Got it?

“When soldiers appear with ‘Mr. 28%’ (the President), that's not called a ‘protest’ or a ‘pro-war event’...It’s called a ‘formation.’”

Kos's particular beef is with the rules and regulations which govern the wear of the military uniform. The government is reportedly considering pressing charges against a group of Iraq veterans who wore their uniforms to a protest, and Kos doesn't like it one bit. He writes about it here, under the grammatically questionable title "Marines investigates Iraq vet for wearing cammos at protest." (Apparently Mr. Zuníga sets his own rules for use of the English language, as well -- and "anyone that thinks otherwise, quite frankly, is legitimately and objectively un-American.")

While I might agree with the national commander of the VFW that "someone...needs to put an end to this matter before it turns into a circus," the fact is, the government is absolutely within its bounds to prosecute each of these individuals, whether Kos thinks these particular rules "legitimately and objectively un-American" or not.

Here's why.

Just as there are laws which make it illegal to impersonate a police officer or any other official, there are rules and regulations which prohibit "impersonating" a member of the military by wearing the uniform while not in the service. Whether a person is a former member or not, the rules are the same, and are in place to serve the dual purpose of preventing misidentification of a non-service member as being a servicemember, and of preventing an assumption of military or governmental endorsement for whatever activity the person in question might be attending.

Whether thought to be right, wrong, or "legitimately and objectively un-American" by any individual, these regulations have been in place for decades, and are clearly and consistently laid out in regulatory publications from the U.S. Code, to DoD Directives, to the Regulations and Instructions which govern each individual branch of service.

Let us begin with the U.S. Code (which, for those who do not know, is Federal Law). 10 USC, Subtitle A, Part II, Chapter 45, § 771 says that:

no person except a member of the Army, Navy, Air Force, or Marine Corps, as the case may be, may wear

(1) the uniform, or a distinctive part of the uniform, of the Army, Navy, Air Force, or Marine Corps; or

(2) a uniform any part of which is similar to a distinctive part of the uniform of the Army, Navy, Air Force, or Marine Corps

Clear? If not, 18 USC § 702 spells it out even more nicely, saying:

Whoever, in any place within the jurisdiction of the United States or in the Canal Zone, without authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States, Public Health Service or any auxiliary of such, shall be fined under this title or imprisoned not more than six months, or both.

I think that makes the case pretty succinctly. And, though Kos would doubtless challenge the constitutionality of such an "un-American" rule, he would lose. 18 USC § 702 was upheld by the Supreme Court in the case SCHACHT v. UNITED STATES, 398 U.S. 58, which took place in 1970 - yes, math fans, that was before the eeeevil BushCo shredded the Constitution and ended free speech forever (though Kos, MyDD, and so many others seem to be speaking their mind without reprisal).

From the U.S. Code, let's move on to Department of Defense Instruction 1334.01, which replaced DoD Directive 1334.1 in October 2005. According to the Instruction, "it is DoD policy that":

3.1. The wearing of the uniform by members of the Armed Forces (including retired members and members of Reserve components) is prohibited under any of the following circumstances:
3.1.2. During or in connection with furthering political activities, private employment or commercial interests, when an inference of official sponsorship for the activity or interest may be drawn.

3.1.3. ...when participating in activities such as unofficial public speeches, interviews, picket lines, marches, rallies or any public demonstration, which may imply Service sanction of the cause for which the demonstration or activity is conducted.

That's not all, of course. The DoDI also specifically mentions former members of the service, saying that:

3.2. Former members of the Armed Forces...who served honorably during a declared or undeclared war and whose most recent service was terminated under honorable conditions may wear the uniform in the highest grade held during such war service only on the following occasions and in the course of travel incident thereto:
3.2.1. Military funerals, memorial services, weddings, and inaugurals.

3.2.2. Parades on National or State holidays; or other parades or ceremonies of a patriotic character in which any Active or Reserve United States military unit is taking part.

3.2.3. Wearing of the uniform or any part thereof at any other time or for any other purposes is prohibited.
(emphasis added)

That sounds pretty cut-and-dried to me. Though Kos the Constitutional Scholar hath proclaimed that "Marine Cpl. Adam Kokesh has already been discharged" and, thus, "he has every right enshrined under the Constitution, including those of free speech and peaceful assembly," that is not the issue. As DoD Instruction and U.S. Code alike have affirmed (backed up by the Supreme Court), impersonating a member of the military (or even simply dressing like one with no intent to deceive) is, in fact, illegal.

HOWEVER, Mr. Zuníga has one more question which, given the fact that I feel generous today, I will happily dispose of for him. He asks, "So they'll prosecute me if I wear my Army uniforms to an anti-war protest? Really?"

Why yes, Mr. Kos, they can. Not only would wearing your "uniforms" be illegal under the U.S. Code and in violation of a DoD Instruction, but you would also be violating an Army Regulation. AR 670-1 §30-4, "Wear of the uniform by former members of the Army," states that:

The uniform is authorized for wear only for the following ceremonial occasions, and when traveling to and from the ceremony or function. Uniforms for these occasions are restricted to service and dress uniforms; the BDU and physical fitness uniforms will not be worn.
(1) When attending military funerals, memorial services, weddings, inaugurals, and other occasions of ceremony.

(2) When attending parades on national or state holidays, or other patriotic parades or ceremonies in which any active or reserve United States military unit is taking part. Wear of the Army uniform at any other time, or for any other purpose than stated above, is prohibited.
(emphasis added)

Furthermore, §30-7, "When wear of the uniform is prohibited," says that "The wear of the Army uniform by ARNG, USAR, retired, separated, and civilian personnel is prohibited under the circumstances listed in paragraph 1-10j."

Curious to know what paragraph 1-10j says? Well, here it is:

Wearing Army uniforms is prohibited in the following situations:
(1) In connection with the furtherance of any political or commercial interests, or when engaged in off-duty civilian employment.

(2) When participating in public speeches, interviews, picket lines, marches, rallies, or public demonstrations, except as authorized by competent authority.

(3) When attending any meeting or event that is a function of, or is sponsored by, an extremist organization.

(4) When wearing the uniform would bring discredit upon the Army.

(5) When specifically prohibited by Army regulations.
(emphasis added)

So, to repeat the answer to your question: yes, Kos, you can be prosecuted if you "wear [your] Army uniforms [sic] to an anti-war protest." Don't like it? It's the law.

A counter-argument which was doubtless seen as both astute and effective by the Kossacks who read the story (sorry, I don't wade into the comments there, so I don't have any to quote) was this:

As we've seen time and time again, we see military personnel, in uniform, all the freakin' time as backdrops to Republican pro-war events -- including with Mr. 28% -- and there haven't been any prosecutions of those folks.

Um, Kos, you were in the same military as us, were you not? Whether you like him or not, whether you think that he's "your President" or not, "Mr. 28%" as you call him is the President of the United States, and as such is the Commander in Chief of the U.S. Armed Forces.

Kos, I hate to break it to you, but when soldiers appear with the President, that's not called a "rally," a "protest," or a "pro-war event."

It's called a "formation."

Did you really serve in the same military as the rest of us? If so, then you knew all of this already - and I'll give you a tip of my cap for your successful feigning of stupidity and ignorance for the purpose of getting your readership good and riled up.

Bravo.

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1 Comments:

At 12:56 PM, Unknown said...: I'll further your comments with a few from an active Marine. I will try to be as nice as I can. The kid is an idiot. As a Marine even a former Marine he knew that that uniform is sacred. We can't even go to the grocery store in cammies without some ass chewing. He knew from the outset that wearing that uniform was wrong and his comments to a superior officer just prove that fact. I hope they run him up the flag pole. I don’t agree with the damn situation either but there is a code of conduct you must adhere to. Had he kept some of the military bearing he should have attained during his active service and responded in kind to the officer he wouldn’t be in the situation. On the other side of this I agree with some comments made by those leftist bloggers. These same rules go for everyone, including the President of the United States who constantly used service men and women as back drops for his reelection campaign. Now you might say this falls under "official speeches", but that’s a misuse of power and a lie. None of these men and women would be afforded a choice to attend or not. They might have been offered a chance to not attend, but that’s usually followed with a "well we have something else for you to do" and an unlawful use of intimidation and rank. I have seen it happen time and time again. So bottom line I don’t care who the hell you are, the military uniform whether occupied by a current or former service member is not a back drop for ANY political speech or activity..................period.

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Yes, Markos, you CAN be prosecuted for it

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