A sailor’s words put him in the brig. Was he making threats or blowing off steam? | McClatchy Washington Bureau

Alexey N. Gebert built little bombs in Florida and London as a teenager.

He used fertilizer, ethanol and zip-close bags to construct devices that, Navy Lt. Robert J. Miller recounted, “created shock waves and small craters in the ground.” Gebert dreamed of becoming an elite Explosive Ordnance Disposal technician.

Now Gebert awaits a bad-conduct discharge from the Navy following his conviction on a charge of communicating a threat to blow up the USS Port Royal, a cruiser with a morale problem. The Navy took his words seriously. He says he was just blowing off steam. An appeals court must decide who’s right, in this latest case involving free speech and the military

“While others communicated that they hoped harm would come to the ship, (Gebert) joked with more specificity about bombs and other forms of harm,” Gebert’s attorney Samuel C. Moore, himself a University of Florida graduate, said in a brief. “His friends and peers took his comments in stride as a joke.”

The question for the U.S. Navy-Marine Corps Court of Criminal Appeals comes down to Gebert’s state of mind; and, more broadly, the states of mind of other soldiers, sailors, airmen and Marines who likewise are charged with communicating threats.

In a prior case involving a soldier from Missouri charged with making threats about President Barack Obama, the U.S. Court of Appeals for the Armed Forces specified that assessing a threat charged under the Uniform Code of Military Justice includes both “an objective and a subjective prong.” The objective prong means how the words would be viewed by a reasonable person.

“On April 27, 2015, (Gebert) took possession of a black Pelican case which, he later told several witnesses, contained a bomb or would be used to blow up the USS Port Royal,” Miller recounted in a brief for the government, adding that Gebert told a witness “that his purpose for using the bomb was to cripple or damage the ship . . . (and) that casualties were inevitable.”

The subjective prong means the defendant’s own state of mind. In the case of the Missouri soldier, the military appeals court concluded the state of mind had to be somehow “wrongful.”

Moore, representing Gebert, said morale on the ship was “terrible” and that other sailors had voiced hopes that the Port Royal would “run aground or get decommissioned.” In this environment, Moore wrote, Gebert was “discouraged along with his fellow sailors” and “shared their frustrations.”

The military trial judge in Pearl Harbor determined that the subjective, state-of-mind requirement was met by Gebert’s alleged “recklessness” in making such incendiary comments about bombs. Moore called this “insufficient,” raising the possibility that innocent speech might be punished under the relatively low standard.

Miller, representing the government, countered that while the trial judge set the necessary state-of-mind standard at “recklessness,” the judge also concluded Gebert’s “tone, affect and demeanor” showed his communication of a threat went beyond that to be considered “knowing and intentional.”