Tuesday, August 02, 2005

Michael: Leonard Clark's Non-Judicial Punishment for Blogging

Article 15 (i.e. Nonjudicial) punishments are pretty accurately described. They are not judicial in that the burden of proof is not criminal, nor are the offenses, penalites nor proceedures criminal in nature and do not need to comport with any rigorous notion of due process. What this clearly means is that Specialist (now Pfc.) Clark did not violate any laws, committed no crime, and likely didn't do any harm to anyone but himself. Instead, it means the Army has used the easiest means to impugn Clark's character with the added benefit of not having to stand their allegations up against any reasonable evidentiary standard.

There is a good reason for that; the information Clark posted wouldn't withstand that level of scrutiny. No military judge in court martial would have convicted Clark of any offense encompassing endagerment of operation security based on the very innocuous operational information Clark posted. I have read many milblogs and almost universally the type of information posted them could just as easily be characterized as op sec relevant. Just saying you are going on duty (the entry is time-stamped, remember) is op sec relevant. Saying that you are guarding a particular facility. That mortar fire came in and damaged certain buildings, equipment, or personnel. That you heard that somebody from a certain unit was killed or injured. All of these posts would technically compromise op sec. Hell, noting the time you have lunch at the mess would. But milblogs post this sort of information all time. If one were to painstakingly correlate all the information available over milblogs, it might constitute a valuable intelligence resource, even if no one blog or blogger were really endangering operational security. That's a serious problem that the military needs to address systematically, but it is not a justification for singling out Clark.

So why was Clark singled out for very harsh punishment (loss of rank) in the very informal process of non-judicial punishment, when hundreds, perhaps thousands of other blogging soldiers have done the same or worse? Clark openly opposes the war, and made the mistake of challenging one of the politicians who firmly backs this war. That's the reason that the Army has mugged Clark without benefit of judicial process and without any substantive evidence that he caused any harm.

11 Comments:

At 9:48 PM, Blogger Joel Gaines said...

Michael,

No - on this there is no debate. You are wrong.

When you are charged with any wrongdoing in the military, the means by which justice will be delivered is not decided as it is in the civilian world. Let me tell you the facts of how this goes down - you will understand that your premise is based upon a knowledge you do not possess. I don't say this to be contrary, but you are not expressing opinion here. You are presenting as facts something that is not correct.

SPC Clarke would have been called into his commanders office and read his rights (they are the same miranda rights civilians get) by his CO - probably in the presence of his platoon leadership and the Co. 1st Sergeant. He would be told that his movements were restricted and he was to cease any activity related to the charges against him under article whatever of the UCMJ ( the so-called gag order). This happens before anything else.

You assert that the Army chose Article 15 because they could not have gotten a conviction through judicial means.

Unless it was a criminal matter where judicial punishment is required, the commander explains what an Article 15 is and it is up to the SOLDIER to either accept an Article 15 or reject the Article 15 procedings and demand a court martial. A court martial provides the soldier with a jury, defense counsel, discovery procedings, the works. That is the SOLDIER'S choice. Depending on the type of Article 15, this instance might not even remain on PFC Clarke's personnel jacket when he changes units or after a year - whichever comes first.

Reduction in rank 1 paygrade and loss of some money and a little extra duty is nothing. When I was in any soldier worth his salt had at least 1 ar15 before he became a SGT. It's really no big deal.

Your contention that PFC Clarke's constitutional rights are somehow violated is something soldiers have debated for decades. Soldiers very often do not enjoy, while serving, the same rights they are dying to protect. Neither you nor I have all of the facts regarding this case - other than the people who are there, it's all speculation and heresay.

Your general premise regarding operational security is also flawed, but again since we don't know - and will not know - what exactly the charge was related to, I can't point out what PFC Clarke did wrong.

Finally, this is not harsh punishment. SPC rank is achieved by most people by having a certain amount of time in the service and a certain amount of time in the rank of PFC. As long as your squad leader or platoon SGT does not document a reason why you should not be promoted, you get promoted (unless this has changed recently). Harsh punishment would be if he had been sent to the military prison with a reduction in rank to E1, forfeiture of all pay and allowances, and a bad conduct discharge at the end of his sentence. Perhaps, just perhaps, PFC Clarke knew that he was guilty of all charges OR knew that this was the molehill it seems to be and that the ar15 was the way to go. Like I said, HOW Clarke's case was handled was entirely up to PFC Clarke.

 
At 12:06 PM, Anonymous Jeff said...

Very well put Joel. All of the arguments I have heard all complain of violation of civil rights. The key here is, he is NOT a civilian and gives up certain rights as a soldier. He knew exactly what the boundries were and decided to test them.

 
At 8:45 PM, Blogger shrimplate said...

I do not see, as Mr. Gaines claims, that Michael has "contended" that Clark's constitutional rights were violated. Michael doesn't claim that at all here.

Michael is not asserting that the Army chose Art. 15 because they couldn't get a conviction with judicial means. Michael is only saying that the military didn't seek judicial proceedings, as these were not required in Clark's case, as there was no apparent claim of criminality.

Otherwise, despite his protestations, Mr. Gaines seems only to vigorously agree with Michael, except as regards the relevancy to security in the scant information posted by Clark, and Michael seems to show more general concern about innocuous information than Mr. Gaines does.

Mr. Gaines claims that Michael is wrong but presents no facts that contradict him. Curiously, he then goes on to describe a process that comports with Michael's own description. That I don't get.

Michael simply claims, as Mr. Gaines also does, that if criminality were involved, then the military would have proceeded differently against Clark. Mr. Gaines and Michael simply agree on that point.

To say that it was Clark who "chose" Art. 15 proceedings over a court-martial is probably true enough, but actually just plain irrelevant and without sensible application to the argument, despite it's centrality to Mr. Gaines' assertions.

Clark posted very little about his operations, probably less than some other military bloggers, as Michael notes, but Clark did post quite a bit about his political opinions. These seemed to contain no clues at all as to military operations, but you never know.

Perhaps there is some secret decoder ring that will prove that Clark did indeed compromise operations with his comments. That we don't know, and that is a point upon which we all seem to agree here. So it would seem illogical, without further knowledge, to conclude that Clark's blog has affected security there.

Similarly, Jeff claims that all the arguments he's heard "complain of violations of civil rights." I do not see where Michael has made that claim outright, or even by implication, so I think Jeff needs to go over Michael's post again, and then correct his own statement.

It's illogical for Jeff to criticize Michael about a claim that Michael never made. And Mr. Gaines' post is similarly flawed, and it is easy enough to see where his logic goes astray.

Both commenters seem to be reading a great deal into Michael's post. It seems simple enough, and non-controversial, too: it's that Clark is being punished for his political views regarding the Commander-in-Chief. The commenters have not demonstrated otherwise.

 
At 11:01 PM, Anonymous Jeff said...

Shrimplate, I would like to address your post. You are all over the road. So, I will try to address your comments, as best I can.

I made a very simple statement regarding Joel's statement.

First, I simply applauded Joel on his factual account of the military protocol in an instances such as this.

Secondly, when I made reference to the fact I have heard other arguments on this matter I never implied I ONLY heard them here. And I was making a point about a soldiers rights, versus a civilians right. They are NOT the same.

Who ever said Clark only compromised operations??? He is, at the VERY least, guilty of UCMJ (Uniform Code of Military Justice) 889. ART. 89 DISRESPECT TOWARD SUPERIOR COMMISSIONED OFFICER. Or a number of other offenses along the same lines. I suggest you look it up.

Joel only claimed Clark was guilty, because Clark took the equivelant to a guily plea by accepting the Art. 15. He had every right to request a court martial and present his case before a court.

Where did I EVER "criticize Michael" about a claim. I simply commended Mr. Gaines on his intelligent, lucid post. Unlike yours, he made a clear concise point. Shrimplate, are you and attorney?

 
At 2:25 PM, Blogger Joel Gaines said...

Shrimplate,

Nuts!

"it means the Army has used the easiest means to impugn Clark's character with the added benefit of not having to stand their allegations up against any reasonable evidentiary standard."

"There is a good reason for that; the information Clark posted wouldn't withstand that level of scrutiny. No military judge in court martial would have convicted Clark of any offense encompassing endagerment of operation security based on the very innocuous operational information Clark posted."

"That's the reason that the Army has mugged Clark without benefit of judicial process and without any substantive evidence that he caused any harm."

You don't think this says the military lacked evidence enough to convict Clarke of a crime, but chose to punish him another way for that very offense, sir?

If I agreed to anything, it was that the members of the military do not have the same rights as civilians - i.e. freedom of speech in its purest form does not always contribute to the good order and discipline of the military. It would take longer than I have to explain what those mean, if you are not already familiar with it.

"To say that it was Clark who "chose" Art. 15 proceedings over a court-martial is probably true enough, but actually just plain irrelevant and without sensible application to the argument, despite it's centrality to Mr. Gaines' assertions."

This is actually the most relevant fact of the entire post, as Michael stated the Army decided to go with a non-judicial means of punishment, rather than using the courts.

Clarke could have - had every right to (and that right is conveyed when charges are read) -
DEMAND the very court proceding Michael says the Army didn't provide. If SPC Clarke felt as strongly about his innocence as you do, he could have DEMANDED a trial to acquit him and have the entire incident expunged from his records. SPC Clarke chose the type of proceding, as Jeff said, as a sort of plea deal. However, I don't believe accepting an ar15 is an admission of guilt; it is more like a "no contest" without the legal repercussions and permanent stain on your record.

"Michael simply claims, as Mr. Gaines also does, that if criminality were involved, then the military would have proceeded differently against Clark. Mr. Gaines and Michael simply agree on that point."

I was inarticulate then. My point is that there are certain crimes, as you noted, that require a criminal proceding. SPC Clarke's commander charge him with something which allowed for an ar15, unless of course SPC Clarke demanded a court martial. You can demand a court martial for ANYTHING you are charged with. The command is then required to fulfill your request for trial or drop the charges.

 
At 7:58 PM, Blogger Michael said...

"However, I don't believe accepting an ar15 is an admission of guilt; it is more like a "no contest" without the legal repercussions and permanent stain on your record."

This is the only part of anything said so far I agree with. I stand by my assertion (which is admittedly implied, not explicit) that the Army has likely railroaded Clark into accepting an Ar15 reprimand with the same sort of strongarm tactics prosecutors regularly use in plea agreements. The threat of jailtime, loss of benefits, involuntary separation, a dishonorable sign hung around his neck, etc. I have little doubt that all of these possibilities were well impressed upon Mr. Clark.

The point being that despite that fact that Mr. Clark had a right to choose a Court Martial, I seriously doubt that such a choice was made attractive regardless of the higher burden it would impose on the Army to prove up their allegations. Considering the recent revelations that the fix was in at least some of the Guantanamo tribunals, one could hardly fault a fellow for not wanting to trust to military justice at the moment.

Of course, this is just supposition and speculation - which I am allowed. This is a BLOG after all, not a newswire. I don't have any evidence one way or the other beyond the piss-weak nature of Clark's actual transgressions, the Army's spin on them as op sec violations, and Clark's quick acceptance of his reprimand and punishment. Both sides of this debate will likely have to wait until Clark musters out and decides to tell people what really happened to find out if they are right.

 
At 8:38 PM, Blogger Michael said...

Further...

What makes me suspect a smear campaign are little wire items like this turning up in the news:

"An Arizona National Guardsman serving in Iraq has been demoted for posting classified information on his Web log, an Army official said. Leonard Clark, 40, was demoted from specialist to private first class and fined $1,640, said Col. Bill Buckner, a spokesman for the Multi-National Corps-Iraq." [emphasis added]

Clark was not charged with posting 'classified information' on his blog. This could be sloppy journalism. But somehow I think that there is no mistake here. The Army is eliding a minor and probably inconsequential op sec breach into leaking of classified information. Welcome to the new Army; willing to bend over and kiss the ass of any politician in power.

 
At 12:25 PM, Blogger shrimplate said...

I would suggest to Mr. Gaines that the next time an officer of the law stops him for driving over the speed limit or having a tail light out, that he immediately demand a breathalyzer test and a jury trial.

 
At 1:15 PM, Anonymous Jeff said...

I would suggest if Mr. Gaines is stopped for a traffic violation, he either pay the ticket and recieve the mark on his driving record or he exercise his right to prove his innocence in front of a court, if he is in fact innocent. Great example Shrimplate! (except for the part about the breathalyzer, that would just be silly)If Clark would of demanded a breathalyzer, I wonder if we would even be having these discussions.

 
At 4:48 PM, Blogger Joel Gaines said...

Michael,

I commend you for your clarity, but I want to know what makes you think the news wire people know what the heck they are talking about. You are actually better informed abut this whole issue than any of the MSM sources I have seen. As I know you personally(If you are who I think you are), I certainly respect your integrity more than any of those yahoos.


Shrimplate!

Good grief, sir. You make less sense with each response. However, the only time I am likely to need to pull over for police lights is to get out of their way, so they can get where they are going.

 
At 9:58 AM, Anonymous Leonard Clark said...

Hello. This is Leonard Clark. I know that on the internet people sometimes are not who they say they are but all I can say is I am who I say I am.
You are right about what you said. If GOD and those in power let me return alive then I will do my best to tell the other side of the story until then I have to be pummelled by those who hate me and what I stand for human rights and soldiers rights.
By the way : Cindy Sheehan may not speak for all the soldiers over here but she sure as hell speaks for me and some of the other soldiers I know over here in Iraq.
PFC
Leonard Clark
future candidate for the US Senate when I get out of the Army :)

 

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