Posted on 07/08/2003 2:21:21 PM PDT by ewing
My problem was that I mishandled my part of the discussion throughout this thread, in great part because I was having difficulty organizing my thoughts & focusing my attention as happens with me with frustrating regularity..
In any event, I'll go ahead and summarize all the points of miscommunication which I've identified:
1) I did not assume that LTC Loomis took pictures of Pvt. Burdette or that Burdette burned down the house for that reason. While that has been alleged and evidently reported as fact, I did not see the evidence which established the veracity of the allegation. I don't know whether those facts are in dispute; more importantly, they are irrelevant to the points of law raised here.
Finally, the relevant facts have been reported differently by the [second hand summary of the] Washington Post & the [second hand summary of the] Houston Chronicle (An Army private "later would plead guilty to setting the empty house on fire in an attempt to destroy - or perhaps call attention to - the lewd tape," the Houston Chronicle said.) In short, I thought immediately that there's more to this sordid little affair than has been assumed here, but wished to avoid a debate on that basis.
2) Further, it's been asserted by several commentators that the sexually explicit video depicted Loomis with other military officers and/or enlisted men. I have yet to determine where this assumption arises, since this is what I've read in the posted accounts:
A fire marshall investigating the ruins found a sexually explicit video cassette featuring Loomis and three other men.
Where is it stated that the "three other men" were servicemembers? This is relevant to the fraternization charge (and possibly to charges of sexual harrassment or intimidation, even coercion). Regardless, this is still irrelevant to the points of law raised in this legal suit.
Aside from all that, I initially misread the portion altogether as stating that he had a gay XXX video, not that he actually made and.. um .. 'performed' in one... That resulted in part from my legal blinders where I reviewed the information only with the intent of determining the merits of this particular legal case. I don't care about the officer's character or behavior beyond the extent to which it's relevant to the constitutional issues in question. Regardless, I was rather irritable with myself for this misreading - by the point of our latter exchanges.
3) Similarly, I have approached the subject with the implicit acknowledgement that this is a test case selected by the Servicemembers Legal Defense Network. In common practice, this means several things. It means that the actual established facts of the case are quite likely as close as possible to those of a model challenge. It means that whatever peripheral allegations are presumed to undermine the officer's character are less likely than not to be the case unless they are supported by the evidence. It also means that the procedural facts of the officer's discharge are near guaranteed to be based on specifically the UCMJ's Don't Ask - Don't Tell policy and the federal sodomy prohibition. I will expand on this point in my reply to your other post which raises the issue directly.
Anyhow, I think I've covered the salient points.
The three branches are equal. Well, they are supposed to be. Legislative power used to reside in the Congress. The UCMJ trumps the Pentagon generals, the rantings of sissy congress persons and the musings of Presidents. Congress created the UCMJ and only Congress can change it.
SCOTUS is not superior to Congress or the Presidency.
Back to Loomis. You earlier said that booting him eight days before retirement was wrong. Which is wrong, the eight days or dismissal for unbecoming conduct?
The President may influence the application of the UCMJ to great extent via the issuance of executive orders as well as policy directives, in some spheres more extensively than others. The President rules the Pentagon in this respect (and he's Commander in Chief).
The Congress can override any executive order via legislative action, and moreover can modify the UCMJ itself at its discretion. The Congress obviously overrules both the UCMJ and the President/Pentagon insofar as the UCMJ is concerned.
The Supreme Court can exercise judicial review in any action taken by the President or the Congress, and this includes any provision or application of the UCMJ, regardless of its historical deference. The Supreme Court rules them all.
The Constitution which the Supreme Court interprets a priori rules every point of law in the United States - including Supreme Court decisions. One might argue that an accurate description of reality would state that the Supreme Court rules, followed by the U.S. Constitution...
But, we'll pretend that the Constitution rules just for the sake of tradition.....
I did not state that in my recollection. I think you have me confused with someone else (perhaps MineralMan).
Only due to a power vacuum. Congress always declines to exercise it's power to exempt a law from judicial review. Again, all three branches are supposed to be equal. The judiciary gets away with abuse of power only because limp wristed Congressmen are too timid to exercise authority for fear of losing votes.
Still, the Pentagon and UCMJ are distinct. On what basis do you continue to think otherwise? The UCMJ was developed in part to standardize good order and discipline among the armed services and eliminate political influence. It has admirably done so.
Yes...you made a long list of rather extreme accusations about homosexuals and then said that your comments didn't even touch on what the Bible said about homosexuality.
As presented it appeared as if you were saying there was MORE that the Bible could add to your list of evils about homosexuality.
Nevertheless if you say this was not your intention, then I believe you.
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