Tag Archives: Posse Comitatus

Unlawful Command Influence, Prosecutorial Misconduct Cited as Reasons to Dismiss Charges Against Army Officer

The criminal lawyer representing Maj. Christian “Kit” Martin cited unlawful command influence and prosecutorial misconduct as reasons why all charges against their client, including charges of sexual assault, should be dismissed before their 47-year-old client goes on trial Oct. 12 Dec. 1 at Fort Campbell, Ky. If convicted on all counts, he faces the possibility of being sentenced to 58 years in prison.

Maj. Gen. Mark R. Stammer, gives Secretary of State John Kerry a tour of Camp Lemonnier, Djibouti, May 6.

Maj. Gen. Mark R. Stammer, gives Secretary of State John Kerry a tour of Camp Lemonnier, Djibouti, May 6.

Among those alleged to have engaged in unlawful command influence and prosecutorial misconduct, according to the motion to dismiss dated June 28, 2015, is Maj. Gen. Mark R. Stammer, the former acting commanding general at the post who now serves as commander of Africa Command’s Combined Joint Task Force-Horn of Africa in the East African nation, Djibouti. Others named are members of the Army prosecution team and include Special Victim Prosecutor Maj. Jacob D. Bashore, a man who was highlighted recently in a post under the headline, Army Lawyer Surfaces in New Bogus Prosecution Effort, and Capt. James P. Garrett, the lead prosecutor in the case.

Beginning on page 14 of the motion, defense attorneys William L. Summers and R. Tucker Richardson III offer a recap of their UCI argument that focuses on actions taken by then-Brigadier General Stammer (Note: I’ve removed the names of Major Martin’s accuser and her family members. In addition, I’ve deciphered a few Army acronyms as necessary):

The entire case and charges against MAJ Martin are solely the result of undo command influence by BG Mark Stammer as part of his personal agenda to make a name for himself in the current politically charged environment of sexual assault and domestic violence in the military. He has done this continually by repeatedly starting new investigations by new agencies against MAJ Martin and pushing all related allegations to a court martial, regardless of the recommendations of his Article 32 Investigating Officer (IO), Special Victim Prosecutor, lead Prosecutor, Deputy Staff Judge Advocate, and even the recommendations of the alleged “victims.”

A review of MAJ Martin’s timeline shows that all the actions taken against him were done in retribution for his and his family’s Congressional Requests, his Inspector General complaint, and his family and friend’s correspondence and complaints to BG Stammer and his supervisors. The “evidence” against MAJ Martin has been created through dubious and selective means while important facts showing the motives and past history of his ex-“wife” Ms. (accuser and her two aka’s) doing the exact same techniques of using and then “burning” men, like (accuser’s first legal husband and father of accuser’s second and third child), has been ignored. (Accuser’s first legal husband) will testify that after spurious allegations were alleged by (accuser), she took his children, two daughters, and has secreted them for over twelve years. He will testify.

The Fort Campbell Prosecution feloniously interfered in civilian court proceedings in order to try and have MAJ Martin’s “ex’s” pending felony charge of bigamy dismissed in Tennessee and Kentucky courts so that they could continue to prosecute him, a violation of ethics and Posse Comitatus that limits the powers of the federal government in using its military personnel to act as domestic law enforcement (18 U.S.C. § 1385, original at 20 Stat. 152).

In fact MAJ Martin’s entire case has been created and recreated by the Prosecution and Army Criminal Investigation Division when they were ordered to open a third new investigation against him by BG Stammer on 2 April 2014, 18 months after he had separated from (accuser) and after he had previously been cleared by civilian law enforcement, child protective services, civilian court under Judge Flemming, and Army Counter Intelligence (CI).

Army CI conducted a secret six month investigation and surveillance on him based solely upon the accusations of (accuser). They had thoroughly interrogated him and searched his house, with his expressed consent. MAJ Martin later passed a three hour polygraph examination conducted by CI experts flown in from Fort Meade (Sep 19, 2013). At the conclusion of the polygraph MAJ Martin was told by Agent Harris that he “would hear no more about any of his ex’s accusations.” Despite all of this, BG Stammer consistently involved and re-involved himself in MAJ Martin’s case. He had him re-assigned to Headquarters and Headquarters Battery, secretly flagged him, fired him from his position, punished him, had him report daily to a junior officer with no assigned position, and then had MAJ Martin continually reinvestigated over and over again until BG Stammer could get the false statements he needed from (accuser) to justify a court martial.

On 11 July 2014, the charges were reviewed at an Article 32 pre-trial investigation. Despite the Defense not fighting any charges, only recording statements, on 3 August 2014, the investigating officer recommended that none of the sexual charges be referred to a court-martial as there were not reasonable grounds to go forward and witness testimony did not match the timelines and evidence given. The Prosecution then dropped (accuser’s) allegations of rape and sodomy on their own accord, because they knew she was a patently untruthful. Her Article 32 testimony changed repeatedly so often it was obviously a reckless disregard for the truth by her.

Despite this, BG Stammer overruled this recommendation and insisted all allegations should be resolved at a Court Martial. When MAJ Martin was later advised by his attorneys to resign, with the recommendation of the Prosecution including Special Victims Prosecutor MAJ Bashore, the lead prosecutor CPT Garrett, and even the alleged “victims” (accuser and her children), BG Stammer once again overruled them and demanded a Court Martial (EX CC, Memo ).

Maj. Gen. Mark R. Stammer

Maj. Gen. Mark R. Stammer

Further into their motion to dismiss, the defense attorneys highlighted specifics of the alleged UCI violations by General Stammer and prosecutors. Rather than stretch this out to include everything in the 37-page document, I’ll offer some of the allegations as bullet points:

• Acting outside of Army jurisdiction;

• Reassigning Major Martin after he lodged a Congressional inquiry about his situation;

• Launching a second investigation of Major Martin by Military Police Investigations (MPI) after the major had been cleared by a lengthy Army CID investigation;

• Retaliating against Major Martin after being contacted by the major’s father and sister, both Air Force retirees;

• Violating Major Martin’s right to due process;

• Creating a court-martial by initiating a third investigation;

• Witness tampering/obstruction of justice;

• Witness intimidation (at least two instances); and

• Illegal search.

There is much more to come for Major Martin, a man who put on his first military uniform as a private in 1986, marking the beginning of a career that would not only include serving as an Army Ranger, cavalry scout and attack helicopter pilot but also include becoming a Regular Army officer and serving three combat tours in Iraq.

Learn more about Major Martin and his case by reading this story as well as others. After you read them, please SHARE THEM and stay tuned for more updates!

This article was updated to reflect a change in the trial date.

UPDATE 12/7/2015 at 8:27 a.m. Central: A military judge continued the military trial date for Army Maj. Christian “Kit” Martin to sometime in March 2016, though no specific date has been set.

UPDATE 12/10/2015 at 11:15 a.m. Central: I’ve learned that Major Martin’s military trial date is set for March 14-18, 2016.

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Retired Navy SEAL Fears Loss of Liberty

EDITOR’S NOTE: Two years ago this week, I shared the piece below under a headline similar to the one above. In light of the continuing assaults on individual freedoms of Americans, I decided to share it again and hope you will, too.

New York Army National Guard Sgt. Adama Ilbouda, left, and NY Air National Guard Tech. Sgt. David Tayler distribute fuel at the Staten Island Armory during the Hurricane Sandy response, Nov. 3, 2012. U.S. Army photo by Sgt. 1st Class Jon Soucy.

New York Army National Guard Sgt. Adama Ilbouda, left, and NY Air National Guard Tech. Sgt. David Tayler distribute fuel at the Staten Island Armory during the Hurricane Sandy response, Nov. 3, 2012. U.S. Army photo by Sgt. 1st Class Jon Soucy.

On May 13, a “Final Rule” on “Defense Support of Civilian Law Enforcement Agencies,” according to the Office of the Secretary of Defense, took effect.  I became aware of it today after a retired U.S. Navy SEAL friend sent me a note containing this link to a Government Printing Office web page on which the rule was published online April 12.  His note appears below:

“I had to contact my lawyer to translate this,” he wrote, “but in a nutshell, our liberty is shrinking faster than most folks think and this regime is setting itself up to subjugate us all…  Please read and forward to anyone who you think gives a shit about losing this country to socialists.”

Anytime someone like this, a guy who’s “been there and done that,” uses this kind of pointed language to describe something he finds troubling, I tend to pay attention and take his advice.

The main portions of the published language of this Final Rule appear below, modified only slightly in format and accompanied by the language of two published comments as well as DoD’s responses to those comments:

Executive Summary

I. Purpose of the Regulatory Action

a. The purpose of this rule is to implement the statutory requirements for the Department of Defense support of civilian law enforcement agencies. This rule provides specific policy direction and assigns responsibilities to Department of Defense key individuals providing support to Federal, State, Tribal, and local law enforcement agencies, including response to civil disturbances within the United States, including the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and any territory or possession of the United States or any other political subdivision thereof.

b. The legal authority for this rule is 10 U.S.C. 375, “Restriction on participation by Military Personnel.”

II. Summary of the Major Provisions of the Rule

a. Support in Accordance With the Posse Comitatus Act — The primary restriction on DoD participation in civilian law enforcement activities is the Posse Comitatus Act. It provides that whoever willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute U.S. laws, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, shall be fined under title 18, U.S.C., or imprisoned not more than two years, or both. Section 182.6 (a) describes in detail the assistance that the Department of Defense may and may not provide civilian law enforcement agencies.

b. Support During Civil Disturbances — The President is authorized by the Constitution and laws of the United States to employ the Armed Forces of the United States to suppress insurrections, rebellions, and domestic violence under various conditions and circumstances. Planning and preparedness by the Federal Government, including the Department of Defense, for civil disturbances is important due to the potential severity of the consequences of such events for the Nation and the population. The employment of Federal military forces to control civil disturbances shall only occur in a specified civil jurisdiction under specific circumstances as authorized by the President, normally through issuance of an Executive order or other Presidential directive authorizing and directing the Secretary of Defense to provide for the restoration of law and order in a specific State or locality.

III. Costs and Benefits

This rule does not have a significant effect on the economy.  However, the Department of Defense may provide support to civilian law enforcement entities on either a reimbursable or non-reimbursable basis depending on the authority under which the support is provided. The benefit to the elements of the Department of Defense providing such support may include a benefit that is substantially equivalent to that derived from military operations or training. Additionally, the recipient civilian law enforcement agencies benefit from the Department of Defense’s substantial capabilities when those capabilities are not needed for Department of Defense missions.

Public Comments

On Tuesday, December 28, 2010, the Department of Defense published a proposed rule (75 FR 81547) requesting public comment. Two comments were received. Below are the comments and responses.

Comment #1. Comment on Proposed Rule: 32 CFR Part 182 DOD-2009-OS-0038. The definition given in Sec.  182.3 of “civil disturbance” is overly broad and encompasses any number of situations that the Legislature and DOD entities might not have in mind at the time of drafting this rule. It is my recommendation that specific reference be made to DOD Directive 3025.12 within Sec.  182.3 to allay any possible misreading of 32 CFR part 182. If Posse Comitatus is going to be suspended in times other than those specifically authorized by the Constitution, Congress must act to make the language clear and unambiguous. In addition, the definition of “Emergency Authority” in Sec. 182.3 and DOD 3025.12 is unclear. In what sort of a civil emergency can prior Presidential authorization be “impossible” to obtain. These two definitions read together give an extraordinary degree of latitude to DOD entities within the borders of the United States. Finally, I question whether a rule is the appropriate venue for an expansion of this nature. Perhaps this is a task best left to congress for full public scrutiny and debate. Should this really be a task left to the DOD to make a rule essentially gutting 10 U.S.C.A. 331-4? Despite the fact that this rule has received certification by the Office of Information and Regulatory Affairs (OIRA), I seriously question whether there are not significant implications for its enactment under Executive Order 13132 (Federalism). If it is left to the DOD to determine when force is necessary, absent a Presidential order and absent the cooperation of local authorities, Posse Comitatus is for all intents and purposes at an end.

DoD Response: No action required. This instruction cancels DoD Directive 3025.12. “Civil disturbance” is an approved definition in the DoD Dictionary and makes no reference to the Posse Comitatus Act being “suspended.” Also this rule does not make reference to the suspension of Posse Comitatus Act. It lists those actions that are permissible and restricted under the Act. The author also recommends that Congress, rather than DoD, make the language “clear and unambiguous.”

Comment #2. The Posse Comitatus Act, 18 U.S.C. 1385, clearly applies to National Guard troops which have been federalized and are deployed under Title 10 authority within the United States. However, the courts have not definitively ruled on whether the Act applies to troops deployed under Title 32, and generally it is assumed that the act does not apply under those circumstances. If Sec.  182.4(b) of this rule is meant to clearly state that the National Guard is, in fact, to act in compliance with the restrictions of the Posse Comitatus Act while in support of civilian law enforcement officials while deployed under Title 32 authority as well as Title 10, then this is a welcome clarification of DoD policy.

DoD Response:  No action required. National Guard forces operating under Title 32 are under State control, and the Posse Comitatus Act would not apply. State law governs what actions state officials and state National Guard forces may take.

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