"“Since these acts would violate U.S. cruelty-to-animals laws, they ‘bring discredit upon the armed forces’ and senior commissioned officers who order troops to engage in them have participated in ‘conduct unbecoming an officer and a gentleman.’”"
Gary Solis asserts in an interview relating to this that the conduct does not violate the code. Would it not be an assimilated crime if the statement above is true? Clause 3 and not Clause 2 the easier route to conviction.
HOWEVER, this would be a bad use of 134. I'm just issue spotting...
JC, does no one read the rules anymore? Is everything we do or decide based solely on an emotional response or gut reaction? It appears the answer to the first question is no, and that the answer to the second question is yes.
Under Article 134, UCMJ, regarding "animal abuse," quite simply a reptile (which a snake is) is not an "animal" for purposes of this crime.
(d) “Animal” means pets and animals of the type that are raised by individuals for resale to others, including: cattle, horses, sheep, pigs, goats, chickens, dogs, cats, and similar animals owned or under the control of any person. Animal does not include reptiles,
insects, arthropods, or any animal defined or declared to be a pest by the administrator of the United States Environmental Protection Agency.
In other words, eating spiders and scorpions is acceptable in Asian countries, as is eating ants wherever, or insect larvae (which I personally would never have the stomach for, but it's a "delicacy").
Oh, and by the way, eating rattlesnake in the US is completely legal, and a delicacy, in the southwest US, of course depending on how it's made. Turtles make good eating in certain parts of the US, including Florida. Alligator meat is mighty tasty, and you'd be hard-pressed to find an alligator that is "abandoned, abused, or neglected" in the US. Has anyone ever eaten "black pudding," or "blood sausage" in the US, European countries, Asian, or middle or south America? Guess what, completely legal. Because that's what people eat.
Second, this is in Thailand, not subject to US Code. Who killed the snake(s)? If it was someone not subject to the UCMJ, then no crime occurred. But then again killing an animal overseas is not prohibited by the code.
Finally, the picture in the article was taken in 2018, before the 2019 MCM recreation. This wasn't a crime then, and isn't a crime now. And drinking an animal's blood, under austere circumstances, and as taught by Thai servicemembers, isn't a crime at all. It's called "survival."
Now if a servicemember is forced to drink blood from an "animal," even if not classified as an "animal" under the Code, and that servicemember doesn't want to drink the blood, then perhaps there's "hazing," which is a violation of Article 92. But if the servicemember is a willing participant in a military tradition, and the blood doesn't come from an "animal," then what's the problem?
Not every disagreeable or distasteful act is a "crime." It's time to get used to that, and stop responding to the court of public opinion, which may or may not know the law. And in my opinion, most of the time, the court of public opinion doesn't know the law. Nor does PETA.
Fair enough. What about the Clause 3 analysis?
There is no "clause 3 analysis" because the terms of the US Code at issue on animal welfare (i.e. the Animal Welfare Act, Title 7), don't apply overseas in other countries, like Thailand. https://www.nal.usda.gov/awic/animal-welfare-act
See 18 U.S.C. § 48(a)(1).
Since there is an enumerated 134 offense, isn’t assimilating another federal statute precluded?
Either way, I read 18 USC 48 to require a connection to interstate/national commerce or the SMTJ. Seems weak, even under a very broad Wickard v. Filburn style analysis, to say a few dead cobras in Thailand rises to that level.
That prohibition only applies to conduct that could also be charged under the UCMJ. Not for conduct that could not be charged under the UCMJ, but chargeable someplace else.
I forgot the case, but there was one that dealt with state charges of kidnapping, which were properly assimilated because it did not fit the UCMJ's elements for kidnapping.
Perhaps I am wrong, but I take Mr. Fissell's question is assuming that no UCMJ charge under cruelty to animals would be justifiable.
No Code violation.
But it’s silly.
And when grown men and women try to dress lapping up a few drops of cobra blood up as being a legitimate training activity that is part of of the Cobra Gold training exercise, then that is also silly. Such silliness could only make a taxpayer wonder whether that entire trip was a boondoggle.
That taxpayer might look at the photos of these shenanigans and see objective proof that DoD has far more funding than it needs.
I agree with Isaac, but a little more bothered. It reflects poorly on the service, but doesn’t rise to a 134 violation and is seemly condoned by leadership. A bit of a conflict because even if it was a violation the convening authority is probably cool with it, another reason there should be independent prosecutors. The easy solution would be to order the troops not to senselessly kill animals and make it a 92, but the fake defense they issued probably means that won’t happen.
@Former DC, there is no enumerated Article 134 offense because reptiles are not "animals." The offense also doesn't apply to "authorized military operations or military training." And the person who kills the snake isn't subject to the UCMJ.
Looking at 18 U.S.C. Sec. 48(d)(1), seems there are two exceptions to "animal crushing," aside from the fact that the cobra killing is done by a non-American, in another country, outside of interstate or foreign commerce, or the "special maritime and territorial jurisdiction of the US."
"This section does not apply with regard to any conduct, or a visual depiction of that conduct, that is...the slaughter of animals for food; necessary to protect the life...of a person."
Watching videos from Cobra Gold 2020, it appears to be a legitimate part of jungle survival training. Learning which fruits, veggies, nuts, etc. are safe to eat, and learning which animals can provide sustenance when you're in a jam, which in Thailand, includes cobras, scorpions, and spiders.
And what do servicemembers have to do during training? Perform the task being trained, so that you know you can do it if you ever have to.
This was a fun exercise but it’s probably not worth thinking about anymore… Tammi has shown her tenacity as a creative defense counsel!