The Glade 4.0

Then you're fairly wrong, since you're the one that thinks caps lock is a substitute for an argument, and that just repeating a strawman makes it valid.



Irrelevant. The ban on open homosexuality on the military DADT is mandated by federal law Pub.L. 103-160 (10 U.S.C. § 654). Don't ask, Don't tell is an irrelevant policy without that law in the first place. If the judge had forced the military to stop enforcing DADT without also stopping enforcement of this law, the effect would be thw opposite: That would mean that the military would be able to ask about sexual orientation and gays would still get kicked out in response to pulbic law.

Quit being disingenuous.



Irrelevant, since the current executive policy is meaningless without the public law it is supposed to prescribe enforcement of, and no one has argued that they aren't subjecto to judicial review. What has been suggested is that the method of review is inappropriate and should be changed.



Hilariously, you've argued that judicial review is some sort of problem in the past whenever I brought it up but now all of a sudden you're ok with it. Besides that, again, it has not been suggested that legislation is not subject to judicial review. What has been suggested is that the current method of progression through the courts is not adequate for addressing military matters, and that should be changed.



Irrelevant. Congress can create or eliminate those lower courts as it sees fit.

District Court





So, once again, you're addressing something other than what I've said. The lower court may not be overstepping its current boundaries, but it is overstepping where those boundaries should be. You have given no reason whatsoever that the current court structure should be as it is in regard to the military other than to A) point out that it is how it is, and B) complain that people couldn't then appeal, which is false since the USSC would still exist and a specialized, national court to review regulation of the military could easily be created.

As for the Air Force and the Army, neither is remotely problematic. As long as no funding bill for them covers a period longer than 2 years, there's no problem.

They are not Constitutionally problematic, they're problematic from your absurd viewpoint.

Guess that means the Federal Court has jurisdiction over the matter regardless of Congressional "regulation" you so keep hoping exists. Kind of funny that you're actually doing all the things you accuse me of doing. And since that doesn't affect "ambassadors, public ministers and other consults", that means it by default has appellate jurisdiction, which secures, constitutionally, the jurisdiction of the lower courts.[/quote]

Since you already claimed that this is a matter of executive policy, I would point out that the Secretary of Defense is a public minister, as well as the President. I didn't "miss" anything. You're just minsunderstanding my argument on purpose.

I don't know what's so **** hard to understand about the concept that just because the courts are set up this way now does not mean they should remain that way. If it makes you any happier, I'd be in favor of a Constitutional ammendment to do the exact same thing. I really don't care if Congress changes the jurisdiction of the courts or if the States do it. Are you now going to try to pretend that the States can't ammend the Constitution?



We do have a Constitutional army. We do not live in fantasy land where the 2-year limit on spending means the Army must be disbanded after 2 years. We've been over this before; that's simply your opinion and since you're now all of a sudden all about how precedent and judicial review are valid, we have a lengthy precedent of the Army being Constitutionally permitted.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I am under the impression that Clinton issued an executive order that amended § 654 into the "DADT" policy.

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"Dress cops up as soldiers, give them military equipment, train them in military tactics, tell them they’re fighting a ‘war,’ and the consequences are predictable." —Radley Balko

You are sort of correct. Clinton cannot ammend the law; he's the President. All he did was issue a policy for how the military should go about enforcing it, which stated that they would not ask servicemembers, nor those entering the service, if they were homosexuals. Indeed, even when a person is found engaging in homosexual conduct the military may not ask if they are gay. It can only infer that in the form of determining if they have a propensity to engage in homosexual conduct.

DADT means that the military will only act if it passively receives credible information that a soldier has a propensity to engage in homosexual activity. Being at a gay bar or in a gay pride parade is not credible information, nor are rumors, gossip and the like. It would hve to be something like "I saw Jones kissing another man" and come from a credible source (at a minimum; that would be enough to start an investigation.)

The "don't tell" part basically means that the servicemember cannot state explicitly that he is gay or openly engage in homosexual conduct; to allow either would mean the President was refusing to enforce the law. However, there are exceptions; for example if there is good reason to suspect the servicemember is claiming homosexuality to escape an obligation then the service may decide not to act on it.

In practice, this means that the commander can almost always choose to look the other way by dismissing evidence as not credible unless it is absolutely impossible to do so. He can't, however, deem noncredible information credible because acting on the policy must be approved by JAG. Not acting on the policy does not have to be.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Yes, you're correct. I think Khross was using the term "policy" a little loosely. DADT was executive policy stemming from the need to implement Congressional legislation.

Both branches were involved.

Diamondeye:

Again, what is the Constitutional basis for a special chain of juridical proceedings for matters about the U.S. Military? What is the rational basis for exempting the U.S. Military from normal judiciary checks on its policies and rule sets governing American citizens? You are requesting a dispensation based on what material need?

I'm curious, because it's obvious you somehow think that the Military should not be governed by Article III as it is written.

But, you keep asserting that you're right, despite the evidence to the contrary. More to the point, the "judicial power" (curious phrase, look at Article III) is not limited to the Supreme Court. And the exact language of the phrase you're now trying to use to defend your position has "judicial power" as its subject, not "the Supreme Court".

Arathain:

I'm not using the term policy loosely. Diamondeye is attempting to muddy the issue because, as usual, when it comes to matters of the military his position is horribly biased and flawed by nature of his personal experience.

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Nope, Don't Ask/Don't Tell is an executive policy; it is, indeed, an executive order signed by Bill Clinton.

TITLE 10 > Subtitle A > PART II > CHAPTER 37 > § 654

Said law was not challenged in the case presented to the District 9 Court, just so you know.

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There doesn't need to be one. Congress can divvy up the responsibilities of the lower courts however it wants. It already created a separate military judiciary as it is under the UCMJ.



I've requested no such dispensation. The military's policies would still be subject to the review of the USSC. I'm merely suggesting another path to get there just as many other specialized matters take specialized paths. The military falls into pretty much every district and circuit and people who don't like polic should not be able to simply locate a sympathetic judge and file suit by venue-shopping.



The only thing that's obvious is that you do not understand Article III as written and think that the district-circuit-USSC progression is somehow sacred and not subject to change.

"subject to such regulations as Congress may direct". The entire "normal" judicial process below the USSC is normal only insofar as Congress wishes it to be. This isn't an "Exemption" or a "dispensation"; your use of those terms is simply a combination of predjudicial language and strawman.



You've shown no evidence to the contrary. None. Not one iota. Don't try to whip out this technical crap of "the subject of the sentance blah blah blah"; that has nothing to do with it. The unalterable fact is that Congress can divvy that judicial power up any way it wants so long as it does not eliminate the USSC or the jurisdictions the Constitution grants it.

You're just engaging in the typical tactic of claiming I'm ignoring the evidence to cover up the fact that it's you doing it. It doesn't matter how many times you calim I'm ignoring evidence. I'm not. You haven't provided any, you aren't dealing with my position, and you're just making up Constitutional interpretations to support the way you wish things to be.

Either provide evidence that the Constitution mandates any particular lesser court structure or shut the **** up.



No, you're just whipping out the "Don't listen to DE because he must be biased!" tactic that Monty liked to try. The fact is that you don't understand the issue, don't understand the Constitution, and are (as usual) making pronoucnements on tings you don't understand and can't bring yourself to shut your trap when you're shown to be wrong.

The only muddying of the issue is being done by you with your fictions about "dispensations" and the like.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Said judiciary answers to the U.S. Court of Appeals for the Armed Forces, which functions as a special district court under the existing system. It, however, only has jurisdiction on cases arising from individuals and actions covered by the UMJC. As the challenge to Don't Ask;Don't Tell was issued by now civilian parties, they are statutorily not covered by this court. Consequently, since the Court you want already exists, why should it be extended to civilians? More to the point, what is the Constitutional basis for exempting the military from the normal course of juridical proceedings?You are requesting special dispensation. For starters, civilians can only file challenges in their district residence, unless they're granted class-action status. Secondly, what avenue does your proposed system leave for civilians challenging military doctrine and policy? Again, Congress has already established an appeal pathway to the Supreme Court for individuals covered by the UCMJ, but that blanket does include individuals no longer beholden to enlistment or service contracts.

What is inadequate about the current system?
I've made no such statement. I've asked you to substantiate your position with a valid constitutional argument. Your response to this matter is to declare such inquiry as irrelevant. Why is it irrelevant to seek your reasoning on a matter? In fact, your responses are nothing short of the same dismissively hostility that a former posted used. You are eschewing technicalities and specifics why? It seems to me that if you command such a vast and perfect understanding of the Constitution, you would be able to provide the argument requested.It is neither prejudicial language nor a strawman. It is a request for you to explain your position, which stands as nothing more than a bare assertion. The evidence to the contrary is, quite honestly, the lack of anything more than your repeated statement that things should be different with no moral, ethical, logical, or substantive argumentation as to why. If the existing juridical structure is insufficient for handling such matters, then why is it so? How can it be changed? And what is the Constitutional basis for that change? Your failure to answer these questions merely demonstrates an unwillingness, on your part, to engage a discussion you entered into without considering what was actually being discussed.

Indeed, Taskiss stated that the Court had no place making that ruling. I simply pointed out that under current policies of judicial review and judicial practice that the Administrations statements were both fallacious and misguided. You and Taskiss, however, have asserted that the Court is attempting to regulate the military when the legal specifics of the case addressed an Executive Order governing the execution and enforcement of a Federal Statute. The question at hand, in point of fact, deals with a Federal Law and NOT any code or statute contained with the Uniform Code of Military Justice. So, again, I ask you why the established court structure is insufficient for handling this question of law? What specific quality about this case should exempt it from such things?
Except it has everything to do with the discussion. Since the legal challenge at hand has NOTHING to do with military law, why should it be the province of some military court or special military avenue of resolution in the judicial system? More specifically, since the suing parties are civilians uncovered by the UCMJ, why should their challenge and question be directed toward a special judicial system involving the U.S. military? What is the basis for your argument?

See, the lack of evidence here is on you, as you neither know the specific case in question nor have you read it. Rather, because a specific Federal Statute and Executive Order may affect military operations, you feel they must be deal with by special avenues that protect the military institution and shield it from reasonable challenges by non-involved civilians.Oh, wait, so I have to provide evidence the Constitution mandates a particular structure when it is, in point of fact, you who suggest that the current Court structure is inadequate? How does that work? Moreover, since there already exists a specific structure for dealing with matters of rule, law, and individuals governed by the UCMJ, why should we add another structure for dealing with civilians questioning a Federal Statute and Executive Order? Filing said suit while serving would have resulted in their dismissal. Having been dismissed, they filed their suit in Federal Court.

But, you know, I'm not making anything up. That would be you, Diamondeye. You have continued to assert that you 1) have a better knowledge of what I know than I do; 2) have a better knowledge of how things should be without explaining what you think the inadequacies of the current system are; and 3) continued to assert people are wrong without answering questions that require you explain your system rationally and within the legal framework already established by our Constitution and juridical practice.

It seems to me, despite your propensity to get stupid on all issues involving the U.S. Military, you simply have no clue what you keep requesting, stating should be.There are no fictions in my posts. I have asked you questions. You have refused to answer questions. In turn, you have claimed said questions are fictions and insulting me. But, you know, you keep ignoring the fact that the challenge to DADT was filed against the executive order and not the federal law you keep mentioning; just like you keep ignoring that the challenge was issued against points of policy distinctly not covered by the UCMJ or the U.S. Court of Appeals for the Armed Forces.

So, you can either man up and answer my questions, say you can answer my questions, or apologize for trying to strong arm your way through a discussion you butted yourself into without reading or comprehending what was actually said.

Because, point blank, the judge's ruling and this case had nothing to do with policy exclusively the province of the U.S. military.

_________________

I know you've insisted that da/dt is an executive order, but I've seen it described otherwise, specifically, as a federal statute and that seems to be the governing authority.



http://www.law.georgetown.edu/solomon/background.html

Seems to me that if all there was to this was an executive order, resolving the dispute would simply be a countering stop loss order. Truman integrated the military with an executive order, so why won't that work now?

Obama claimed that "congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end the policy", and that explanation lends itself more to this being an issue with the governing authority being a federal statue rather than an executive order.

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In time, this too shall pass.

Taskiss:

It's not a law itself. Don't Ask/Don't Tell is an executive order that dictates how TITLE 10 > Subtitle A > PART II > CHAPTER 37 > § 654 should be enforced.

_________________

I didn't say it should be extended to civilians. I don't need any basis for exempting the military from normal judicial proceedings because there are no normal judicial proceedings under the Constitution. There is nothing int he Constitution establishing anything other than the Supreme Court, its original and appellate jurisdictions, and the fact that Congress establishes the rest.



What's your point? Since Congress can make the rules for the courts, creating a new process and a new inferior court would mean creating new rules for that as well.

Second, civilians should not be challanging military doctrine and policy unless that civilian is directly impacted by them in some way that affects the civilians' rights. Being in the military is not a right.

I am not requesting sepcial dispensation. Period. You are outright lying every time you say that.



It allows people, civilian or military, to challange military policeis that are purely internal. There should be no avenue for that, other than to address A) individual complaints that policies were not followed or B) that the military is violating the Constitution. In the latter case, the military is a national entity. It has one policy that applies everywhere. If that policy is to be reviewed, it should be only by the USSC so that people cannot go jurisdiction shopping.

Civilians should have their say in the military through Congress or the President. They should not be able to affect internal military mnatters through the courts outside of direct, personal harm based on some form of unequal treatment they received



That's because you do not understand that I don't need to provide any Constitutional reason why anything should be a certain way. Congres has the power to make it this way; that is the only Constitutional issue.




They are nothing of the sort. What's similar to that fomer poster is your continued insistence on not comprehending what someone else is saying, and appointing yourself the arbiter of what can and can't be said while lecturing everyone else.



I'm not. I've pointed out that you are incorrect.



Except that I don't need to. I do not have to show why anything should work a certain way under the Constitution, only that it is legal under the Constitution, which it is. Why I think it should be that way has zero to do with whether anything is Constitutional since I am not challanging the Constitutionality of the current system. I am challanging its effects. As for perfect understandings, your own arrgoant proclaiminations about how the Constitution is supposed to work render your sarcasm both ironic and absurd.



My position has been explained in detail. You are simply whipping out "bare assertion" because you think that simply calling something a bare assertion makes it one and allows you to avoid dealing with points.



I have already explained this. Federal judges are not qualified to rules on internal military matters. They do not know anything about military effectiveness (some may, but that cannot be assumed) and it is too easy to go "district shopping" by simply finding a case in a sympathetic location. The Supreme Court is no more qualified, but its final say is an absolute of the Constitution and at least it would eb one, consistent entity.

I did not fail to answer anything. You failed to read and comprehend them.



I am not responsible for Taskiss's comments.



I am not defending any action by the administration either.



I am not asserting any such thing. The fact that you're lumping my arguments in with Taskiss's indicates that you haven't read what I;ve said, don't understand, and honestly don't give a ****, you just want to argue against what he said and find it convenient to ascribe it to me.



Explained already.



I did not say it had anytihng to do with military law; I pointed out the military courts as an example that every case does not have to necessarily go through the district-circuit portion of judicial structure.

Second, I have not suggested that the new court I propose be part of UCMJ since its purpose is not to administer UCMJ. Its purpose is to handle essentially civil complaints that policy was not followed by the military. It would consist of well trained but nonmilitary judges not answerable to SECDEF or POTUS but to the USSC



Completely unsupported assumption on your part.



No, you have to provide evidence tht it is the "normal" structure and that changing it amounts to "dispensation. The words "district court" and "circuit court" are where in the Constitution exactly?



Oh **** well for them. Maybe they should not be challanging a policy that the President clearly has the power to make, or, by extension (contrary to your asserion I have read the case and I do know they did not actually challange the law itself) the law supporting it. In fact, they actually did something counter to their own purpose by doing it.

You don't seem to get that internal military policy about how it is going to go about fighting are not matters for civilians to directly affect. That's what Congress and the President are for.



I've explained in detail. However, since you apparently want to read Taskiss's position, assume mine is the same, and then argue with it, you're in no position at all to bith about me asserting I know more than you. You've clearly displayed your own ignorance.

Moreover I don't need to explain anything "within the Constitution" since what I;m proposing is Constitutional, nor do I need to explain a change to the judicial frameork within the existing framework. I especially don't need to explain it to you, since you simply switch your opinion on judicial framework depending on its convenience for you.



No, the real problem here is that you get stupid on issues involving the Constition about which you evidently know very little, and now you're just claiming I "get stupid on the military" because you know perfectly well I know far more about that than you and want to do the same as Monty: try to call it into question because you don't like it.



I have answered your questions. You have not read them. You have continued to ignore, misunderstand, and fail to respond to my points, and you are simply making whatver claims worked for you against Monty, thinking that must work against anyone you disagree with. Evidently you've become too lazy to actually discuss things any more.

I am not ignoring anything about the challange; in fact I fund it amusing that it actually strengthens the ban on gays.

So, you can either man up and answer my questions, say you can answer my questions, or apologize for trying to strong arm your way through a discussion you butted yourself into without reading or comprehending what was actually said.



And, point blank, you're wrong. DADT affects nothing but the military. The fact that it was an executive policy does not mean it should be treated like every other executive matter. Incompetant judges should not be ruling on matters they have no grasp of. The President is Commander in Chief; as an executive policy his orders about how the military should conduct a certain aspect of buisness are completely within his power and should not be challanged by civilians on any basis other than violating some other portion of the Constitution. The challangers in this case really should not have been allowed to challange the policy at all unless they can show it was unfairly applied in their case, or on some other Constitutional violation.

Your behavior in this thread is appalling Khross. You've admittedly lumped my position in with Taskiss's, you've completely ignored my explainations, and you've evidently ignored where I also said that a Constitutional ammendment to accomplish the same thing would be fine with me too, which would render all your bellyaching irrelevant.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

To whit, you lose the argument. Since the case in question arose precisely from these circumstances. Of course, since that's what we were discussing until you jumped in as if you understood my position without reading it, I'll just accept your concession. By the by, no Federal Statute is a purely internal military matter; nor, for that matter, are published Executive Orders (again, see U.S. v. Nixon). So ...

You're just wrong and blowing smoke up your own ***, again. But, you didn't read the ruling. You didn't study the case. You merely assumed the judge overstepped his bounds because you do that with all things Military. But, you know, continuing to assert I'm wrong about jurisdiction and juridical proceeding because you have no understanding of the specifics (or willingness to discuss them as you just went to great lengths to demonstrates) indicates that you really just can't accept the fact that some people got booted from the military, filed a law suit, and won. And everything they did was proper and just according to standing rules and established systems.

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Authority has authority because it says it does, and it's right because it says it is.

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Buckle your pants or they might fall down.

Way to selectively quote, *******. You really are determiend not to address my point. As for "not reading your position" I posted in theis thread before you did, so the only one jumping in without reading is you. I read every single line of bullshit you posted. Now you're just pissy because I pointed out that you're lumping my position with Taskiss's and are just trying to reverse the fact that you didn't read mine to lessen its impact.

To whit (by the way, using phrases like this doesn't make your argument any better), this is not a case of civilians either receiveing unequal treatment or experiencing any direct personal harm. These people are not civilians for this purpose; since they were in the military when the events in question occured, they are military members for purposes of determining if the policy was applied to them in an unfair manner. Since they made no such allegation (that DADT was applied in this case in a fashion it is not applied in others) we can eliminate that. They weren't civilians that experienced some harm as a result of military actions (such as an artillery round going off post and blowing up their shed or something) sot hat doesn't apply either.

Of course, you'd have known that if you read my entire post, and understood it since I explained all of this. But no, it's easier to pick one line out of context, and reply to that.

Furthermore, Federal statutes and executive orders that affect how the military internally conducts buisness are purely internal to the military. They don't have any effects outside of it. As Commander in Chief, an order given to the military by the President is purely internal because in that capacity, the President is part of the military. Public laws governing exclusively the military are internal military issues.

I phrased it this way specifically so that you couldn't say I was claiming the military could do anything it wanted to no matter who it affeced. An law like posse comitatius isn't internal because it affects what the military can do externally, so I would have no problem with a suit related to that law.

The fact is that in this case, the people filing suit were not civilians at the time the policy affected them; the fact that they are civilians now is irrelevant. They shouldn't be able to file suit on any basis other than that a Constitutional right they were entitled to while in the military was violated, or that the military violated its own policies in what it did to them. Neither happened; they should ahve been denied standing to sue in the first place but evidently we haven't properly set up the courts to prevent this sort of idiocy.



The only one blowing smoke here is you, since you assume any disagreement with you can only come from not "studying" the case.

You're a whiny, **** snot, you know that? I've spent this entire argument explaining that my position is that the courts should never have been set up so that a suit like this was possible in the first place. I haven't argued that the judge did anything wrong under the procedure as currently set up; I've said that the procedures should never have been set up to allow this, and we should change them so its not possible in the future. The judge didn't overstep her legal bounds; she overstepped the traditional reluctance of the courts to interfere with military buisness.

But of course, you're just mad because you can't deal with disagreement. You've just got to prove that you know more than whoever is disagreeing with you, despite the fact that you don't really know **** about the issue in question. You'll just pick some position you can easily knock down, argue against that strawman, and hey, even better! Pick a position someone else argued and pretend I argued it!

You haven't even begun to address my actual point: that Congress should change the court structure, or we should ammend the Constitution to prevent suits like this, except for your attempt to take one line out of context, and few times asking "but why!?!" and pretending I didn't already state why.

You get yourself all in a **** huff when people tell you what you think, but you've got no problem doing it yourself. You're a colossal **** hypocrite. I "can't accept" the decision? The fact that you can seriously post that indicates just what lengths of dishonesty you can go to trying to appear to win an argument since I disagree with the ban on open homosexuals in the military.

Of coure, if you understood the issues you'd have explained that this decision strengthens the ban because it only prevents enforcement of DADT. DADT is merely an executive policy, the actual ban is public law, which wasn't challanged. You were all hot to trot to point that out because you thought since Taskiss didn't know that I must not either, but the fact of the matter is that without DADT there is nothing preventing the military from asking about sexual orientation and the public law still stands!

Way to completely miss the implications, *******. Maybe next time you should worry less about disagreeing with DE just because "ZOMG HE'S DEFENDING ZE MILITARY!" and actually think things through. You evidently don't understand **** despite the fact that I've explained my position on the overall issue in numerous threads. I care about what makes the most effective uses of resources to get the most bang for the buck. Neither DADT nor the public law that causes it to exist does that anymore because we're losing skilled soldiers in the middle of a **** war. Now we're stuck with the public law without the policy that allows commanders to look the other way, you **** moron! But whoop-de-do, the judge followed the current procedure! Clearly tht's the only **** thing to be concerned about! As long as someone got to sue, everything's good!

This, however, wasn't the way to handle it because now any policy can be challanged in the same way. Like I pointed out before (and of course, you didn't bother to respond to because people have to respond to your points or they're "refusing to answer the question" but Khross gets to pick and choose becuase he's special) what prevents some fatass from challanging weight standards or the fact that he has to take a PT test? What about medical standards? They're all "executive policies" by your definition since they all come either from the PResident or from some subordinate civilian or military officer appointed by the President.

Furthermore, its not as if people have never sued the military and won in the past, over things such as the right to go to a protest while off-duty. Never seen me complain about those, have you? No? That's because I don't have a problem with those decisions since they were handled by the Courts with due regard to whether they were a matter of a Constitutional right. There's a right to free speech; there isn't a right to be in the military in the first place. Its also a matter of separation of powers; the courts have done a good job in the past of dsiciplining themselves to stay out of military issues but apparently the draw of telling the other branches what to do was a little too much for this judge.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

Remember folks, its way easier to oversimplify an issue down to "Authority is bad, mmmkay?" even when its an issue of two or three different authorities in conflict! Never address anything DE actually says, just make spammy, one-line comments that play off of the "authority is bad!" bandwagon! This demonstrates how cool you are.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I can see I was wrong to take you off ignore. **** off, DE.

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Sail forth! steer for the deep waters only!
Reckless, O soul, exploring, I with thee, and thou with me;
For we are bound where mariner has not yet dared to go,
And we will risk the ship, ourselves and all.

I can see your point, and in practical terms, I think there is some validity to the argument that the soldiers (because they were at the time this happened), should have only had standing to protest the rules within the military judicial system. Do other offenses for which a soldier can be discharged from the military get the benefit of a civilian trial (excepting for constitutional cases?), or is it handled through the military courts? I believe its through the military courts, so it seems odd this particular issue wasn't handled as the others.

However, I could also see how in this particular case, 1) the former soldiers in question are arguing a violation of their constitutional rights, which gives the federal non-military courts as much jurisdiction as any, 2) this is case of violating the federal law regarding discrimination by a federal agency on the conditions of sexual orientation, which would make it an external to the military, not internal issue, 3) or an argument that the soldiers cannot have an impartial jury/judge in the case, due to the nature of the topic and the effect on the image of the military.

Going with the 1st and 2nd reasons above... does it change the circumstances of the venue if instead of active soldiers it was recruits denied enlistment based upon sexual orientation? IF that were the case, the current court is the proper venue... and honestly, I'm not sure the fact they were allowed to enlist and then discharged changes the venue, in light of the fact its a federal law that is being argued that invalidates the executive order.

In this case, they would have been Chaptered out (there are a bunch of different Chapters soldiers can be put out on) for violation of the homosexual conduct policy. That wouldn't have been handled in military courts in front of a judge per se, but it would ahve been handled and approved by the JAG system. It's not purely administrative; it must undergo legal review to make sure it is being done legitimately; i.e. the commander is not chaptering soldiers he just doesn't like.

The Log Cabin Republicans represent 19,000 different people, some of which are currently in the military and some not.



Well it is definitely not a case of violating any Federal law about discrimination because there is another Federal law mandating the discrimination.

The judge ruled that the policy doesn't help military readiness and has a "direct and deleterious effect" on the military during wartime. These are not matters of Constitutional rights, nor are they matters for the Courts to decide. By that logic, the courts could rule on anything they did in war right down to actual tactics, usurping the power of the President as Commander in Chief.

The judge also ruled that their "fundamental rights" were violated, but there is no fudamental right to be in the military, much less to be openly gay in the military. This is actually expressed in the US code I cited earlier.

The impartial jury argument would have some merit in the case of troops not already discharged, but not in the case of those already discharged.



2 we can eliminate entirely. There is no lawful claim of discrimination becasue the discrimination is mandated by another law. Remember, the ban on homosexual troops is public law, DADT is a policy on how the law will be enforced.

The only arguments that could legitimately be made are violations of Constitutional rights. Disregarding whether any actually occured, the problem here is that the military exists for the benefit of the entire nation, its members regularly move about the entire nation as well as outside it in the course of their duties. This makes it ridiculously easy to "venue shop" and take an issue that occured pretty much everywhere and have it heard wherever the plantiff thinks they will win. I guarnatee that all 19,000 of the Log Cabin members do not live or work within Judge Phillips' venue; they simply constructed the suit in such a way as to allow it to be filed there, but then got her to issue a "worldwide injunction".

If there were one particular court to handle the Constitutionality and fair individual application of polices that only affect the internals of the military, that would not be possible. The fact that it is, is a problem. It isn't just a matter of individuals; it allows organizations to go out and use the courts as a means of dictating military policies. Now lets say the workers in Barney Frank's district get pissed off if the alternate engine for the F-35 gets cancelled and they're out of a job. All they need to do is find way to get into a sympathetic venue, sue the government over an "executive policy" and issues of military readiness, and poof! Court order to keep building engines, and we're building a second engine for a plane that the Secretary of Defens determiend we don't need.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

This is the point that I think makes this an issue for the federal courts as opposed to the military courts. With two conflicting laws regarding behavior such as this, the military courts are not the proper venue. Its a question of which federal law is to be enforced, and whether or not the law(s) passed is/are constitutional or not. Military courts don't have jurisdiction to make rulings about the constitutionality of Congressional laws or make rulings about the enforcement of laws where the effects extend beyond the military. Otherwise, its the exact opposite of the hypothetical F-35 suit you suggested... except now the military courts can overturn Congressional laws exclude enforcement within their sphere.

I agree that the internal military courts are not the proper venue regardless.

However, the suit wasn't filed under a claim of violation of the Federal discrimination statute, and I do not know that there actually is any conflict since there is language in these and other laws that eliminate such conflicts. A similar situation arises with environmental regulations; language specifically exempts the military from OSHA and environmental regulations when conducting uniquely military activities. For example, you have to follow environmental standards when changing the oil on a tank's engine, but not when engaging targets with the tank's cannon.

I think you're misunderstanding me; I am not proposing that this issue be handled by military courts; I agree that military judges should not be ruling on Constitutional issues. I am saying there should be a separate civilian court that addresses military issues that the military courts are not legally qualified to, and that regular civilian judges do not understand. This would also prevent "venue shopping". The idea is much like the Tax Court that handles tax issues, or that "wiretapping court".

How this would pertain to cases like this is that people no longer in the military could use this court to challange military policy that affected them by either claiming A) it was applied unfairly in their case or B) the policy violates the Constitution by going beyond the bounds of being a purely internal military policy, or beyond the bounds of regulating military readiness, good order, and discipline.

In this particular case, the position of the judge is that the policy does not promote military readiness. That's not what the court should determine. The court should only determine if the issue is related to good order and discipline or if the military is simply making rulees for the sake of rules, like when it tried to prevent participation in protests. If they issue is related to good order and discipline, then whatever Congress says on the matter should stand since they are explicitly given that power. Whatever the President and the military do should also stand as long as it, in turn, conforms to what Congress has said.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I disagree that we need a separate court for cases like this given the federal courts have jurisdiction already. I also disagree with your assertion that this is needed to provide judges with a more granular knowledge of the protocols/etc of the military system. This is akin to stacking the courts to protect a system that may or may not be constitutional, and in the end, only duplicates at extra expense what is already the most likely result (appeals).

I also disagree with your assertion that the ruling of the judge about promotion of military readiness is out of line, since it is that condition on which the exception for the military to federal laws was created. If the military can't adequately defend its need for that exception, that invalidates it.

It's explicitly Constitutional because the Congress can set up the lower courts in any way it pleases. It is not "stacking" the courts at all.

The claim that there shouldn't be a new court because there already are courts that have jurisdiction is begging the question. Clearly, they do. I am saying that they should not. It is not valid to say that they should because they already do.

I also don't see that extra expense is a problem. It is worth the extra expense to prevent people from filing suits they have no buisness filing by eliminating the "venue shopping" avenue.



Not at all. There is no "exception" in the Federal laws for the military. There is a completely separate law for the military that prohibits homosexuals explicitly. This law is in no way subordinate to the law rgarding discrimination; its effect is to isolate the military entirely from discrimination law insofar as homosexual conduct is concerned.

Furthermore, even if it were an exception, whether or not it was still needed is a matter for Congress. It isn't the job of the miltiary to defend the need for an exception created in public law, nor do the courts have authority to eliminate them unless they otherwise violate the Constitution. Courts have no buisness ruling on the necessity of laws, only their Constitutionality.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."

I didn't say it was unconstitutional to set up a new court, I said it wasn't needed in my opinion, and your argument only reinforces my opinion its a bad idea, and none of the reasons you have stated as to why you think its a good idea appeal to my sense of appropriateness.


I agree. And the ruling from the judge appears to be directly addressing the Constitutionality of the separate law for the military (based upon a exception peculiar to that institution, according to the military).

You just have a different opinion on the comment.

Diamondeye:

Yes, yes, keep spewing ad hominems without addressing my questions. Here's a hint: calling something irrelevant isn't an answer, it's a deflection. More to the point, since you keep requesting an alternate judiciary for dealing with the military, fail to address the fact that one exists for purely internal matters, and fail to address the fact that neither Clinton's Executive Order (DADT) or Title 10, 654 are not purely internal matters, it really doesn't matter how much you huff and puff, call people names, or repeat the same statements you've made over and over again without addressing the questions asked of you.Oh, now that's awesome ...

viewtopic.php?p=91740#p91740
Sorry, but it seems I beat you to the punch on that little tidbit by a month. Really, stop talking out of your ***.

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Your question shave all been addressed. Sorry, you don't get to play the "but you're not addressing my questions!" game you play in every damn thread anymore. You're out of questions, and out of chances. Moreover, you're in no position to complain about ad hom when your entire argument relies on wild assertions that I have some sort of bias about the military that automatically invalidates my points.



Here's a hint: Quit posting rrelevancies and they won't get mentioned. You can't make the conept of irrelevancy disappear by calling it a deflection. It's not a defelction; it's you being irrelevant.



False. There is no such thing as an alternate judiciary. I'm saying there should be a change to the existing judiciary; it wouldn't be "alternate"; it would be part of the norm. Predjudicial language, and since you don't decide these questions, I'm not "requesting" anything either.



All of these have been addressed. They are purely internal matters, since they deal wiht nothng but the military. Their effects are contained entirely within the military.

You're wrong, and you're jsut repeating your point hoping that saying it enough times will be convincing.

[quoe]it really doesn't matter how much you huff and puff, call people names, or repeat the same statements you've made over and over again without addressing the questions asked of you.[/quote]

Keep trying Khross. Claiming that someone else isn't answering your questions is your old, tired solution to every discussion. Your questions have all been addressed, in detail.

You will got no more answers. They have already been posted and I'm not taking the time to keep retyping and rephrasing them so that you can just continue to ignore them and keep claiming "but you're not answering my questions! It doesn't do any good to answer them since you just ignore the answers so that you can whip out this "not answering questions" line you use on everyone that disagrees with you. Hell, it worked great on Monty, it must work for everyone, right?

Hell , you can't even be bothered to understand what my position is. You already admitted you just lumped it with Taskiss's and it's taken like 5 different explainations to get you to even comprehend that I'm talking about a change to the system, not what was allowed under the current system. Evidently you're determined to just drag this out so long I get tired of posting so you an declare victory.

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"Hysterical children shrieking about right-wing anything need to go sit in the corner and be quiet while the adults are talking."