Legal example of why Branum is not the guy to talk to if you plan to go CO

OK, so this post will be unlike my other posts. So, if you came expecting the usual, me calling Branum “Fatso the retarded manchild”, then I fear this post will do little to slake that thirst. I said before I would actually do a legal review of why Barnum is so damn bad, and although I know this will get little traffic, I am hoping someone sends this around to the CO community so that the next guy to try this doesn’t get screwed by an unscrupulous lawyer.

A few things upfront.
1) I am not a lawyer. I only know CO stuff from what I read, largely from the documents Branum has on his own website. But, what I lack in direct knowledge, I make up for in ability to read, and to use logic as my guide.
2) I’m doing this not because I actually *LIKE* CO’s, but I still feel that they deserve better representation than they are getting from this guy. I do, however, respect a few, in particular Logan Laituri. He did it the right way, and if you need advice, GO TO HIM, not Branum.
3) I believe Branum should be disbarred. He is an embarrassment to a profession that is too easily maligned, and which on the whole I believe to be an honorable profession.
4) Again, not a lawyer, so do not email me asking for help.

This morning I put up a thing about Travis Bishop having some of his sentence suspended. But, one has to wonder what he would have gotten had he had a lawyer who used a winning legal gambit, instead of this bullshit:

Bishop’s defense called two witnesses to the stand. Both are active-duty Fort Hood soldiers who claim they too were never informed that filing for CO status was an option….

“Ignorance of the law is no excuse,” Capt. Matt Kuskie, the prosecuting attorney, argued after the defense made its case.

Maj. Matthew McDonald, who served as the judge, said whether or not Bishop was notified about his right to file for CO status is not relevant to this case.

Have you ever met anyone who didn’t realize that ignorance of the laws is not a defense? Honestly, I don’t mean even lawyers. Any person over 18 who thinks that “I didn’t know” will get you out of it is a moron. Branum’s entire defense here was that Bishop didn’t know about CO status. That isn’t a defense, unless you are arguing mitigation for some sort of mental defect.

Anyway, I decided to spend this morning reading the actual laws. Put briefly, what follows is what I found. You can skip this portion if you like:

Conscientious objectors in the military have no constitutional right to be discharged on that basis. See Gillette v. United States, 401 U.S. 437, 441(1971).

Once petitioner (That is you Cos) demonstrates prima facie claim, burden shifts to military to demonstrate basis in fact in the record to support the military’s reason for denial. See Koh v. Secretary of the Air Force, 719 F.2d 1384(9th Cir. 1983)

There are basically three reasons the military may deny a CO application:

1. The applicant is not conscientiously opposed to war in any form,
2. The applicant’s opposition is not based on “religious training and belief,” and
3. The applicant’s stated opposition is not sincere.
See Clay v. United States, 403 U.S. 698, 700 (1971) (per curiam); Hager v. Secretary of the Air Force, 938 F.2d 1449 (1st Cir. 1991).

Under Part I:

To qualify, CO applicant must be opposed to “participation in war in any form.”(Numerous cases.) This one *should* be easy.

Under Part II:

“The term ‘religious training and belief’’ does not include a belief which rests solely upon considerations of policy, pragmatism, expediency, or political views.” 32 C.F.R. § 75.3(b).

AGAIN, claims founded solely on policy considerations, pragmatism, or expedience may be denied. See, Naill v. Alexander, 631 F.2d 696 (10th Cir. 1980); United States v. Coffey, 429 F.2d 401 (9th Cir. 1970)

Chaplain, not commanding officer, is in best position to determine whether there is a religious core to an applicant’s belief). See United States ex rel. Greenwood v. Resor. 439 F.2d 1249 (4th Cir. 1971)

[As an aside, from the Bishop case: http://www.kdhnews.com/news/story.aspx?s=35194

…in an unexpected move, the prosecution called in Lt. Col. Ron Leininger, an Army chaplain, who conducted an interview with Bishop after he filed for C.O. status, and claimed Bishop was insincere in his religious convictions.

So, you can see what doomed that case.]

Under Part III:

Sincerity is ultimate question; disbelief in sincerity must be supported by
objective facts); Witmer v. United States, 348 U.S. 375 (1955)

Regarding when files for CO, timing may be relevant. Late crystallization relevant); Rothfuss v. Resor, 433 F.2d554, 559-60 (5th Cir. 1971); but not solely determinative (timing alone never adequate reason to deny claim LaFranchi v. Seamans, 536 F.2d 1259,1260 (9th Cir. 1976)).

Now, I know that Branum knows all this. How do I know that? Because I took it all from the Military Law Task Force for the National Lawyers Guild website. Now, if I had more time, I would look at the qualifying statements in those cases, but that would be a bit more than I have time for.

So, taking the law as it is laid out there, let us try and reconcile the law with the statement of the “Anonymous Conscientious Observer” that Branum is now “representing.” Bear in mind a few things before we go into this. If this guy was a true CO, the worst opening move of all time is to lawyer up. It just looks like you are trying to game the system. If you truly have a religious belief that all war is evil and wrong, go see the chaplain. Second, if you do see a lawyer, for the love of all that is holy, do not get wrapped into this disgraceful mechanism to get your word out. It completely undercuts the “sincerely held religious belief” mantra that is all through the case law. You don’t go to a plumber for legal defense, don’t go to a lawyer to espouse religious beliefs.

So, let me parse the statement of the ACO:

First off, I would like to begin by saying that this veil covering my face represents the numerous servicemembers who have awakened to a decision that the wars we are fighting now, and/or the ones that present themselves in the future are not worth the injustice of taking a human life.

No, the veil signifies that you don’t have the bravery to face the music for your beliefs. In other words, your conviction to this course of action is immediately called into question because you covered your face.

Every day I live with these feelings unable to express my thoughts freely and live by them. It’s as though the bandanna covers my true conscience. If you want a story of hopelessness, and terror, step into the boots of a soldier who can no longer ignore the realizations of conscientious objection. My status as a CO will be challenged significantly in the future, the army will stop at nothing to discourage, disgrace and humiliate anyone brave enough to take these steps.

The definition of an honorable man is one who chooses the hard right over the easy wrong. Here you are choosing neither, and instead hiding your face, and alleging something before it even happens. Again, this points to a problem with the DoD, the military, and policies, not to a sincerely held religious belief.

With this being said, I will tell you my story. Right now I am in the process of seeking a discharge from the army. I am a combat vet who recently returned from Iraq. While overseas, the experiences I had brought me to seeking Conscientious Objection. I can no longer stand for the inhumanity and the lack of interaction with the Iraqi people. The Army teaches soldiers to hate their enemy so that they will be more willing to pull the trigger. But I can not hate the Iraqi people nor do I see them as my enemy. I can not and will not load, charge, aim and pull on the trigger of my rifle to take a human life. I see the Iraqis as no different, despite aesthetic differences such as clothing and culture. I believe that there is much to be learned by our brothers and sisters of Iraq.

This is the worst possible thing you could say, for several reasons, all of which Branum should have known. The US is not at war with the Iraqi people. And even if we were involved in a war with Iraq, saying this means you oppose THAT war, and not all war. If you had a lawyer who knew his ass from a pallet of spam, he would have told you not to mention Iraqi’s, or anything similar. The proper statement here was “I can no longer engage in any activities which do not further the cause of peace and my own religious convictions. I will not use my rifle or any skills in pursuit of war anywhere in the world” etc etc etc. By bringing up the Iraqi people, you slide almost by definition into politics and policy. You give up the high ground and tried to fight against a specific engagement, and doing so you lose. What we might or might not learn from our brothers and sisters of Iraq” is not only immaterial, but points again to you have aims and goals outside of religious ones.

Lastly, there is no mistaking the distaste that many servicemembers have with being deployed. My personal opinion is not quite the same though, I actually would deploy though to Iraq again, this would be a deployment without a rifle in my hand (unintelligible, perhaps “a tank to man”) but books for the children and (again, unintelligible, perhaps “warm pastels who will build Iraqi land.” Maybe some poem?) If given the chance I would make it my personal mission to return to Iraq and do what I can on the ground to make the lives of the people better.

Making the lives of people better is a laudable goal, and yet again, you separated out Iraq, and started talking about policy again.

Not once in this diatribe did you talk about religion, nothing about all war, just Iraq, and stuff that is either totally irrelevant, or actually cuts AGAINST your case for CO. There is no damage you could do to yourself now beyond this statement with the exception of grabbing a megaphone and telling the board that you love war generally, just not this one. I really can’t even convey how much damage Branum has done with this statement, and he wrote the damn thing. Or, at the least, as he makes clear in the prelude to the video, he was endorsing it. Any lawyer with a modicum of intelligence, and/or reading comprehension already should know that.

The Anon CO is better off not letting anyone know that was him. He’s lucky he kept the hood on. A few last minute legal issues.

The final factor in all this is “sincerity” and this guy has basically shot that down. He’s better off if no one knows who he is, because this video creates a VERY large impression that cuts against CO. Although applicants getting legal counsel is not a basis to deny the claim (Goldstein v. Mittendorf), getting one who would entice you into giving these boneheaded admissions against interest doesn’t help matters any.

Get help. If you are a CO, get help from someone who knows the law. If you are Branum, dude, just get help.

Category: Politics