I'm still seething over the idea of "Duke" Cunningham giving special favors to contractors supplying services and/or equipment to our troops, so I think that, once his plea agreement with the DoJ has been completed, he needs to be handed over to the military for trial. (This is long, but I can't seem to get the extended entry to work. I apologize.)
You see, the Uniform Code of Military Justice applies not only to active duty service members, but also to "retired members of a regular component of the armed forces who are entitled to pay." Duke retired from the Navy, which clearly puts him in that category.
While it is the DoJ's responsibility to conduct fraud investigations involving government contractors (according to the Army's Field Manual on criminal investigations), it is not within the DoJ's purview to restore the honor of the Navy. Justice did not include in its plea agreement a violation of Title 18, USC, Section 207, which states that retirees that can be punished by up to a year in jail for scamming the government for their own gain.
I believe that an example must be made of Cunningham that proves even war heroes cannot risk our service member's lives by subverting the contracting processes. Do I know that people were hurt or put at risk by Cunningham's specific actions? Honestly, no, but that's beside the point. Trust was placed in Cunningham as an officer and as a congressman to follow the rules which exist to protect both public funds and the lives of our service members. He violated that trust. Therefore, the Navy should begin court martial proceedings against Cunningham, charging him with "conduct unbecoming an officer and a gentleman," Article 133 of the UCMJ, and those proceedings should decide whether or not Cunningham should keep his rank and his retirement pay.
Is this harsh? Damn straight.
But it's also supported by law. In 1987--the year Cunningham retired, incidentally--the Court of Military appeals reminded everyone of the following in their finding in Overton v. the United States of America.
Retired army and naval officers have been subject to court-martial jurisdiction since the Civil War. Act of Aug. 3, 1861, ch. 42, Sections 18, 24, 12 Stat. 290, 291; Rev. Stat. Sections 1256, 1457 (1878 ed.). Article 2(a)(6), in particular, traces its lineage to the Naval Service Appropriations Act of 1916, ch. 417, 39 Stat. 589-591. See also Naval Reserve and Marine Corps Reserve Act of 1925, ch. 374, Sections 6, 10, 43 Stat. 1081-1082, 1083; Naval Reserve Act of 1938, ch. 690, Section 6, 52 Stat. 1176. Before enacting Article 2(a)(6) of the UCMJ in 1950, Congress considered the testimony of several witnesses that court-martial jurisdiction over persons in an inactive duty status was unnecessary and unfair and should be limited. Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 706, 749, 864-870 (1949); Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the Senate Comm. on Armed Services, 81st Cong., 1st Sess. 329-330 (1949). Congress rejected the argument that these persons were simply pensioners who were no longer members of the armed forces in favor of the conclusion that these persons were still members of the military who receive lesser pay for current but reduced services and thus should continue to be subject to court-martial jurisdiction. Because "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military" (Solorio v. United States, slip op. 12) and because "'judicial deference * * * is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged'" (ibid. (citation omitted)), Congress's judgment on this subject is entitled to respect from the courts.Any JAG types want to discuss this?
Update: Comments are must read! Overton's defense attorney (and a fellow blogger) comments and argues that I'm off-track in that a court martial could violate the double jeopardy clause.
Comments
It really chaps my hide. "War hero" abets corrupt military industrial complex corruption.
No wonder that even though we spend as much on defense as the rest of the world combined, our troops in Iraq don't have all the armor and equipment they need.
I'm betting this is just the tip of the iceberg.
Jeff
While we're cranking up the UCMJ appartus, how about going after the following Swifties under Article 88? They are also in pay status...and uttering contemptuous words against a sitting senator:
Rear Admiral Roy Hoffmann, USN (retired), chairman, Swift Boat Veterans for Truth
Captain Charles Plumly, USN (retired)
Imagine sitting in Iraq last fall and hearing this crap. Made me wonder what the R's and their outsourced character assassins in the Swifties would say about all of us once we got back.
Yeah, bring on the JAG's. There's work to be done...
How do we get the court martial started? To whom do we write or call?
My recommendation:Assistant Judge Advocate General - Military Law
Office of The Judge Advocate General
United States Navy
716 Sicard Street, Suite 1000
Washington Navy Yard, DC 20374-5047
Comm: (202) 685-7050
DSN: 221-7050
Fax: (202) 685-7084The office's mission is to exercise "primary supervisory responsibility for the performance of the JAG's statutory duties in all military justice and related matters as authorized in the UCMJ (10 U.S.C. §§ 801-946), the Manual for Courts-Martial (MCM), and the JAG Manual (JAGINST 5800.7C)."
One would think that, at the very least, they could point us in the right direction.
Overton v. United States Oh Jebus.... I'd not thought about ol' Cliff Overton in years......
By interesting coincidence, I was Clifford Overton's defense counsel both at his court martial AND on his appeal to the Navy-Marine Corps Court of Military Review (a situation that was highly unusual, but I'd independently transferred to NAMARA Appellate Defense, and having handled the Overton case at trial, I was the office expert on in personam court martial jurisdiction--Cliff's case wasn't the only one I briefed on those issues during my stay at NAMARA).
Basically, Cliff got screwed by the Rehnquist court. In June of '87 (before the Court of Military Appeals issued its opinion in the Overton case) the Court issued its ruling in Solorio v. United States 483 U.S. 435 (1987), in which the Court explicitly reversed the earlier doctrine in the cases of O'Callahan v. Parker, 395 U.S. 258 (1969), and Relford v. Commandant, U.S. Disciplinary Barracks, 401 U.S. 355 (1971), which required that there be some "service connection" to the crime being prosecuted for in personam court martial jurisdiction to attach. Once the Supremes overruled O'Callahan Cliff's goose was cooked, because basically that meant that the Armed Forces could try any a person for any offense against the UCMJ committed anytime or anywhere, as long as the prospective accused was an active duty service member, or a retired/Fleet Reserve/Fleet Marine Reserve receiving retired/retainer pay (IIRC, established precedent spared mere reservists, unless they were on active duty when the offenses were committed, and providing they were retained on active duty prior to the filing of charges).
Personally, I think that the Supreme Court decision in Solorio is wrong, wrong WRONG, and for that reason it'd bother me for court martial jurisdiction to attach to Cunningham, even though he's as deserving an accused as there is. Leaving that aside, I'd be interested in the application of the Fifth Amendment Double Jeopardy Clause in this context, given that Cunningham has been convicted (I think, he did enter a plea of guilty yesterday, didn't he?) and will be sentenced in a Federal court. My analysis (off the top of my head): while a court martial could have taken original in personam jurisdiction over Cunningham for all his crimes (bribery, tax evasion and the general articles (Art. 133 and 134, UCMJ)), now that he's convicted in a Federal court I think that bringing him before a court martial to punish him for the same conduct (i.e., the facts underlying the civilian conviction) would violate the Double Jeopardy Clause. That being said, I can see the arguments one can make that a court martial prosecution would not violate the Double Jeopardy Clause, and I concede that's an argument that the current court would probably agree with. However, as a liberal/progressive, I'm not going to stand on the same side as the justices that I know would rule in the government's favor in that case. Sorry.
In spite of the fact that Overton's conviction ultimately stood, the Overton case stands as one of my major triumphs as a Navy JAG. I actually managed to get the Court of Military Appeals to stay the court martial for several days while they considered a writ of mandamus ordering the trial to cease (that writ, obviously, was denied). The court-martial itself lasted over a week, and when the dust cleared Overton's punishment was a mere dishonorable discharge and full forfeiture of his Fleet Marine Corps Reserve retainer pay (for some reason, Fleet Reserve/Fleet Marine Reserve pay is "retainer" pay, not "retired" pay). No confinement/imprisonment whatsoever was imposed by the court. And because the court didn't sentence Cliff to confinement, he continued to receive his retainer pay until the Court of Military Appeals (IIRC) affirmed his conviction (had he been sentenced to confinement of a month or longer the convening authority (Commander, U.S. Naval Forces, Philippines, a two star admiral) could have executed the forfeiture immediately).
At the time, I was on very good terms with the COMUSNAVPHIL Staff Judge Advocate and his staff, and one of the assistant SJAs there told me that the Admiral was sorely pissed when he learned that not only was Cliff Overton not going to prison, but that he was going to continue receiving retainer pay for several years after his conviction.
I still consider that one of the great moments in my otherwise wasted legal career.
Couldn't it be argued that this case still meets the requirement of a "service connection?" These were, after all, DoD contracts he was aiding.
Having only been on the bad end of the UCMJ and the NIS (now NCIS, in spite of which I still got a Good Cookie and an Honorable Discharge), it's hard for me to believe the JAG will go after either Cunningham or the Swift Boaters.
I'd just like to remind everyone of USMC Maj. Gen. Smedley Butler's War is a Racket. Read it and compare the numbers to MZM and Halliburton's shenanigans.
Just an ordinary everyday shitbird,
Pierce Presley
USMC
Couldn't it be argued that this case still meets the requirement of a "service connection?" These were, after all, DoD contracts he was aiding.
It could be argued (strictly speaking, just about anything can be argued; whether that argument is convincing is another story :-) ). Under O'Callahan, I'd say it wasn't service connected, though. "Service connection" meant that the charges in some way derived from or were significantly related to the accused's military duties. For example, a rape/attempted rape on base (Relford, held service connected) vs. a rape committed off base while the accused was in civilian clothes on extended liberty (O'Callahan, held service connected).
In Cunningham's case, his corruption had nothing to do with his status as retired member of the armed services, and everything to do with his status as a congresscritter. Even though his congressional duties had to do with the armed services, that's a very tangential connection to his status as a retired officer. I find it difficult to find service connection there, myself (the argument would be stronger if Cunningham were not a Congresscritter, but were a DoD official. If he were SECDEF or one of SECDEF's flunkies and engaged in a similar influence peddling arrangement, his connections to the service are greater, and I'd find the argument that his corruption was service connected to be more appealing).
That's all water under the bridge, though, since O'Callahan is dead and buried thanks to Solorio (who was merely a Coast Guard enlisted with a penchant for diddling little kids; if it had been "Duke" Cunningham appealing a court martial conviction for his congressional corruption vice a Coastie enlisted puke appealing his court martial conviction for kiddie diddling, I'm sure Rehnquist and his droogies wouldn't have been so hot to overturn O'Callahan.... But I digress).
I really think that there are two things standing in the way of a GCM for the Duke at this juncture. First, as Pierce Presley implies, there's simple inertia. The Navy legal establishment, from OJAG on down, isn't going to want to go to the trouble of ramping up a court martial to slam a war hero pilot who's retired, no matter how big a scumbag he is, especially since the civilian courts are doing their job and punishing him. Second, I think that a court martial of Cunningham for conduct for which he's already been convicted in Federal Court runs afoul of the Double Jeopardy Clause. If the Navy really wanted to make an example of Cunningham, they should have tried to get DOJ to prefer court martial charges first (fat chance!).
For example, a rape/attempted rape on base (Relford, held service connected)...
AAACK!... that should have read:
(Relford held NOT service connected...
I'm not always good at proofreading. Sorry for polluting your comments like this....
I meant that O'Callahan was held NOT service connected (crimes off base while O'Callahan was on extended liberty). Relford's offenses were held service connected (crimes committed on base against dependent wife who was also a commissary employee).
If Cunningham has, as you say, been "convicted" by his plea of guilty of all the charges filed in the information etc, what does that do to other crimes he might have indulged in but not charged and maybe not "known" at this time ?
How would other charging work ? (UCMJ for these ?)
"There is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things." - Niccoló Machiavelli (The Prince, 1532)
I'm no legal scholar by any stretch. Seems to me, given the discourse on Duke's fuck-up's and woulda-been, should be ball hangings via the UCMJ (IF the military justice system had some backbone anymore, which after seeing the Abu-Gharib scandals, we should all know it does NOT have...) -
I think that quite possibly the best way to secure any and all means of completing the 'trial' of Mr. Let's Fuck the Country Over in Time of War, to Benefit Me Only... is to hammer this worthless piece of shit constantly in the public media place. We are all skilled military folks here, and lord knows you'd never see research like this in the MSM.
Have at it boys, maybe send some to Frank Rich, via the NY Times, and some of the other MSM folks who aren't afraid to put it out there for the masses to view and ingest.
Because, the day the TeeVee networks pick this level research up, will be the day that Hell freezes over.
Hell, Michigan (50 miles SE of me) freezes over on a regular basis in the winter. I refer to the one which represents the opposite of heaven.
Semper Fidelis
These acts by Cunningham just prove what an opportunist scum bag he is. He used to be a big proponent of stiff sentences for drug kingpins until his son got nabbed with a quarter ton of marijuana. Then he gave a tearful presentation. His son got 1/2 the 'mandatory' sentence. Hey, maybe that'll work a second time?
If they don't court martial him does he get to keep all of his Naval benfits (even if convicted by DoJ)?
For those of you really interested, you can read the Cunningham plea agreement at:
news.findlaw.com/wp/docs/crim/uscnnghm112805plea.pdf
(PDF format; Acrobat Reader or similar required.)
If Cunningham has, as you say, been "convicted" by his plea of guilty of all the charges filed in the information etc, what does that do to other crimes he might have indulged in but not charged and maybe not "known" at this time ?
The Double Jeopardy Clause prohibits Cunningham from being twice tried/convicted for the same offense. If there are other crimes not charged that are currently unknown at this time, they could conceivably be prosecuted. Interestingly enough, Section VIII of the plea agreement limits the application of the agreement to the US Attorney's Office, SD California. Also, interestingly enough, there are no provisions immunizing him from other actions to be taken against him (loss of Congressional or Navy pension, if such action is possible), and Section III of the agreement specifically notes that Cunningham, "by pleading guilty... may become ineligible for federal benefits."
I WAS COURT MARTIAL FOR GOING AWOL IN 1974 .BUT THE JUDGE ,ORDER ME TO RETURN BACK TO DUTY. BUT THIS SGT ,TOLD ME THAT I HAD TO SIGN UP FOR THE ANMESTY PROGRAM.AND I WAS TOLD THAT I HAD TO RESIGN FROM THE ARMY.INSTEAD I GOT AN UNDESIREABLE DISCHARGE FROM THE ARMY.AFTER MY DISCHARGE I WAS TOLD THAT IF WOULD WORK AT BEXAR COUNTY HOSPITAL FOR 18 MONTH ,THEY WOULD UPGRADE MY DISCHAGRE, I DID NOT FINISH MY 18 MONTH BECAUSE THE DOCTOR TOLD ME THAT I COULD NOT WORK NO MORE BECAUSE OF MY BACK, SO HE STOP ME FROM WORKING.WHAT CAN I DO TO FIND OUT IF I WAS A VICTIM OF DOUBLE JEOPOARY.PLEASE REPLY .
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