Okinawa Japan Court Martial Defense Lawyer

Revised policy issued on Okinawa clarifying ban on Spice

By T.D. Flack, Stars and Stripes
Pacific edition, Sunday, February 28, 2010
Army officials on Okinawa have released a new command policy banning what are commonly regarded as legal drugs after a military judge dismissed court-martial charges for a soldier accused of violating the previous policy.

Chip Steitz, spokesman for the Army on Okinawa, said the new policy based on the judge’s motion was released late Thursday.

Col. T. Mark Kulish on Tuesday dismissed four specifications of a charge that a soldier failed to obey an order or regulation by wrongfully purchasing, possessing, using and distributing a product called Spice. Sold as incense or air freshener but touted as a synthetic alternative to marijuana, Spice is not illegal in the United States or Japan, unless it contains the chemical HU-210. Japanese and U.S. officials have said it’s difficult to test for the chemical, and there are very few substantiated cases of Spice with HU-210, which is why it remains openly for sale in both countries.

In dismissing the specifications tied to the failure-to-obey charge, Kulish wrote that the 10th Support Group’s Command Policy No. 1-08 — signed July 9, 2008 — lacked the “ ‘objective and clearly understood standard of criminality’ against which a reasonable Soldier can measure his or her conduct … and thus does not constitute a lawful general order for the purposes of Article 92(1).”

Kulish also wrote that the old policy only defined Spice as an “intoxicating substance” and that the use of the word intoxicating “does not save the general order from being deemed void for vagueness.”

The new policy gives more specific definitions of Spice, calling it “a mixture of medicinal herbs which cause decreased motor functions, loss of concentration and impairment of short-term memory.” An enclosure with the policy lists all the prohibited products. The policy also adds that soldiers cannot possess, purchase, attempt to purchase, accept shipment of, attempt to ship, or use “any substance or derivative, analogue, or variant of the substances listed in the enclosure.”

It adds that adverse administrative actions can be taken against Department of Army civilians or family members who violate the policy.

Many U.S. military bases in mainland Japan and on Okinawa have published policies banning Spice and other designer drugs in recent years because of their easy availability in stores outside the gates. There is no Defense Department or U.S. Forces Japan policy.

After Kulish dismissed four specifications of the Article 92 charge, prosecutors withdrew the other charges and specifications the soldier faced in the trial: possession of a knife with a 5-inch blade, making false official statements, having consensual sexual relations with a 16-year-old girl while he was married, and wrongfully possessing Spice with the intent to distribute it.

Steitz said the other charges were withdrawn, but not dropped, “allowing the prosecutor to consider how best to proceed with all other potential charges.”

Kulish did not dismiss the final Spice-related charge, which was a specification of Article 134 — a general article under which the soldier’s conduct allegedly was prejudicial to good order and discipline in the armed forces.

Army defense attorney Capt. Tim Bilecki — who helped represent the soldier — said in an interview earlier this year that the Spice cases represent a “complex legal minefield” and pointed to inconsistencies in the various orders.

Bilecki questioned why soldiers on Okinawa face different restrictions than those on mainland Japan — even though both have access to stores that sell Spice and other so-called legal drugs.

“A soldier in Tokyo, in theory, could legally purchase Spice at a store in Roppongi,” he said. “That same soldier doing the same act on Okinawa could be court-martialed.”

A U.S. Army Japan spokesman was unavailable for comment on the case Friday.

Stars and Stripes reporter David Allen contributed to this story.


Timothy Bilecki is an experienced Army court martial defense lawyer defending military cases in Korea, Japan, Hawaii and worldwide