Sunday, May 14, 2006

Regarding Retired Military and The UCMJ....

Recently there has been much discussion, brouhaha, regarding the so-called Revolt of The Generals, and the question has come up again and again as to whether or not these generals could be court-martialed for their statements, etc. Well, some say yes; some say no; and some say, yes, but....

Most articles on this subject have said very little as to whether or not retired military personnel can actually be prosecuted for their statements. The following articles, however, do address this specifically.

So in an effort to make some sense of whether or not retired military can be prosecuted, the following articles on this subject are hereby presented for your perusal.

Semper Fidelis
Dick Gaines
Gny Sgt USMC (Ret.)
1952(Plt # 437) - 1972

MILINET: Retired Military ARE Subject to the UCMJ--Lt. Gen. Bob Springer, USAF (ret.) Inbox
to undisclosed-re.
More options 7:36 am (1� hours ago)
Weekly Standard
May 22, 2006
Generally Speaking

Frederick W. Kagan's "Let the Generals Speak" (May 8) wrongly claims that retired military officers are not subject to the Uniform Code of Military Justice. All those receiving retired pay are subject to the UCMJ.

Lt. Gen. Bob Springer, USAF (ret.), Pinehurst, N.C.

Frederick W. Kagan responds: I readily acknowledge that I erred in stating that retired officers are not subject to the UCMJ. The question of the applicability of Article 88--which bans contemptuous speech directed at superiors and civilian leaders--is, however, more complicated. Apart from the fact that there are no cases of attempted prosecutions for violating this article, the standard for preferring such charges is different from the one required to accuse active duty officers. To prosecute a retired officer, the military would have to show that the words used "create a clear and present danger" leading to evils "that Congress has a right to prevent." This hurdle is much higher than the requirement to show for active duty officers that "the speech interferes with . . . the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops." Even discussing an Article 88 charge in the context of the retired generals' statements is absurd.
(Previously Posted)

April 27, 2006, 7:10 a.m.
A Dereliction of Duty
Military officers shouldn't try to be policymakers.

Criticism of Donald Rumsfeld by the uniformed military is nothing new. As I noted a year ago, most of Rumsfeld's critics are uniformed officers unhappy with the changes he has wrought during his tenure as secretary of defense.

But the rhetoric has notched up recently. Several retired generals have denounced Rumsfeld and called for his resignation over Iraq. Much of the language they have used is intemperate, and some is downright contemptuous. For instance, Marine general Anthony Zinni, Tommy Franks's predecessor as commander of Central Command — the organization responsible for implementing the wars in Afghanistan and Iraq — has described the actions of the Bush administration as ranging from "true dereliction, negligence, and irresponsibility" to "lying, incompetence, and corruption." He has called Rumsfeld "incompetent strategically, operationally, and tactically." One has to go back to 1862 to find a senior military officer condemning a civilian superior so harshly.

Some have expressed concern in the past when retired generals have campaigned publicly for a presidential candidate, but this unprecedented attack against Rumsfeld is far more serious. While there are no legal restrictions that prevent retired members of the military — even recently retired members — from speaking out on public policy, doing so now and in this way is imprudent.

The open (and often intemperate) criticism leveled by these officers against Rumsfeld is not only feeding defeatism at home, but is also adversely affecting the military that these officers purport to love: Aside from demoralizing the soldiers and Marines who have sweated and bled on the ground in Iraq and Afghanistan, this behavior has weakened the cohesion of the active-duty officer corps by ultimately forcing them to take sides on the Rumsfeld affair.

Although one would not know it from the press, Rumsfeld has many admirers within the uniformed services. Some critics of Rumsfeld have called his uniformed defenders "Courtney Massengales," a reference to a character in Anton Myrer's remarkable novel, Once an Eagle. In this novel, Courtney Massengale and Sam Damon represent two polar-opposite archetypes of the soldier: Damon is the dedicated citizen-soldier who is commissioned on the battlefield and, as he rises through the ranks to become a major general, never forgets his roots as an enlisted man. His life is one of dedicated service and loyalty to his subordinates. Massengale is Damon's nemesis, a West Point graduate who is really never a soldier at heart, but merely a careerist who advances himself at the expense of others.

Some of the officers who criticize Rumsfeld fancy themselves as noble and self-sacrificing, even as they paint the secretary's defenders as sellouts who have succumbed to the allure of promotion, prestige, and personal aggrandizement. Ralph Peters leveled a similar charge in his piece for the New York Post last week. But this is a slander.

There are fine officers on both sides of this issue, and pitting one group against another does nothing to enhance the security of the United States.

In addition, such public criticism by senior retired officers is undermining healthy civil-military relations. The cornerstone of U.S. civil-military relations is civilian control of the military, a principle that goes back to the American Revolution and the precedent established by George Washington, who willingly subordinated himself and his army to civilian authority.

The public attack on Rumsfeld by retired officers flies in the face of this tradition. Should active-duty and retired officers of the Army and Navy in 1941 publicly have debated the lend-lease program, the occupation of Iceland, or the Europe-first strategy? Should generals in 1861 have discussed in public their opinions of Lincoln's plan to re-provision Fort Sumter, aired their views regarding the right of the South to secede from the Union, or argued the pros and cons of issuing the Emancipation Proclamation?

Many of Rumsfeld's critics have invoked the very important book by H. R. McMaster, Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff, and the Lies That Led to Vietnam , the subject of which is how the Joint Chiefs failed to challenge Defense Secretary Robert McNamara adequately during the Vietnam War. Many serving officers believe the book effectively makes the case that the Joint Chiefs of Staff should have more openly voiced their opposition to the Johnson administration's strategy of gradualism, and then resigned rather than carry out the policy.

But as Richard Kohn — an expert on U.S. civil-military relations and McMaster's academic adviser for the dissertation that became Dereliction of Duty — has observed, the book "neither says nor implies that the chiefs should have obstructed U.S. policy in Vietnam in any other way than by presenting their views frankly and forcefully to their civilian superiors, and speaking honestly to Congress when asked for their views. It neither states nor suggests that the chiefs should have opposed President Lyndon Johnson's orders and policies by leaks, public statements, or by resignation, unless an officer personally and professionally could not stand, morally and ethically, to carry out the chosen policy."

The misreading of Dereliction of Duty reinforces the increasingly widespread belief among officers that they should be advocates of particular policies rather than simply serving in their traditional advisory role. Kohn writes that a survey of officer and civilian attitudes and opinions undertaken by the Triangle Institute for Security Studies in 1998-99 discovered that "many officers believe that they have the duty to force their own views on civilian decision makers when the United States is contemplating committing American forces abroad." When "asked whether military leaders should be neutral, advise, advocate, or insist on having their way in the decision process" to use military force, 50 percent or more of the up-and-coming active-duty officers answered "insist," on the following issues: "setting rules of engagement, ensuring that clear political and military goals exist, developing an 'exit strategy,'" and "deciding what kinds of military units will be used to accomplish all tasks." In the context of the questionnaire, "insist" definitely implied that officers should try to compel acceptance of the military's recommendations.

There is, as well, a practical political problem resulting from such actions on the part of retired officers: a loss of confidence and trust in the military institution by the American people. Although Americans hold today's military in high regard, this will change if they come to view the military as just another special-interest group vying for more resources as it seeks to restrict how the civilian authorities use it, or if retired soldiers are perceived to be no different than the sort of political appointee who just left the administration and is now peddling a "tell all" book intended to settle scores with his adversaries.

The view of the soldier, no matter how experienced in military affairs he may be, is still restricted to the conduct of operations and military strategy. Civilian control of the military means at a minimum that it is the role of the statesman to take the broader view, deciding when political considerations take precedence over even the most pressing military matters. The soldier is a fighter and an adviser, not a policymaker.

— Mackubin Thomas Owens is an associate dean of academics and a professor of national-security affairs at the Naval War College in Newport, R.I. He is writing a history of U.S. civil-military relations.


Could Rumsfeld Court-Martial the Retired Generals?

Surprisingly, yes.

By Fred Kaplan

Posted Wednesday, April 26, 2006, at 2:59 PM ET

Donald Rumsfeld has a notorious vindictive streak. How low will he stoop to pursue it? Let's put him to the test. If he wanted to get really brutal, Rumsfeld could convene a court-martial and prosecute the six retired generals who have been calling for his head. Military law, if read literally, permits him to do this. So, will he?

One of the assumptions surrounding the recent criticism of Rumsfeld is that the retired generals, unlike active-duty officers, are free to criticize the defense secretary without fear of reprisal. Surprisingly, this assumption is untrue. Under the Uniform Code of Military Justice, one of the many activities deemed punishable by court-martial is "contempt toward officials." This code of laws applies not just to active-duty officers but to retired ones, too. It's right there in Article 2, Section (a) (5): Persons subject to the UCMJ include "retired members of a regular component of the armed forces who are entitled to pay."

The key phrase is "entitled to pay." If you resign from the military, and thus give up all retirement pay and benefits, you're free from the clutches of military law. But if you retire and thus keep getting paid 50 percent to 75 percent of your peak active-duty salary (plus cost-of-living adjustments pegged to the consumer price index), you're still in the cage. (Many retirees learned this the hard way, when they were called back into service in Iraq.)

If Rumsfeld wanted to stick it to the retired generals who are daring to question his wisdom�Anthony Zinni, Greg Newbold, Paul Eaton, Charles Swannack, John Batiste, and John Riggs�he could invoke Article 88 of the military justice code, which reads:

Any commissioned officer [and, under Article 2, this includes any retired officer] who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation [!], or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present, shall be punished as a court-martial may direct. [Italics and exclamation mark added.]

The military's Manual for Courts-Martial, the implementing document for the UCMJ, could be read as strengthening Rumsfeld's case against his critics, in two ways. First, in its elaboration of Article 88, the manual states:

It is immaterial whether the [contemptuous] words are used against the official in an official or private capacity.

In short, it's no defense for a retired general to say, "I'm just speaking as a private citizen."

Second, the manual notes:

Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article � aggravates the offense. The truth or falsity of the statements is immaterial.

This is pretty shocking stuff. It means a lieutenant could get court-martialed for e-mailing all of his friends a newspaper or magazine story that's contemptuous of Rumsfeld. The six retired generals didn't merely give "broad circulation" to such stories. They wrote the stories, or gave on-the-record interviews to those who did, in publications with extremely broad circulation.

If Rumsfeld wanted to take this law literally and crack down, how could he go about it? Article 22, Section (a) states that a court-martial may be convened by, among others, the president, the secretary of defense, the "secretary concerned" (i.e., the official who's been the object of contempt), or any commanding officer designated by the secretary concerned or by the president. So, Secretary Rumsfeld or President Bush could set up a court-martial, or either of them could get a loyal henchman to do the dirty work. If the generals were found guilty, the maximum penalty under Article 88 is "dismissal, forfeiture of all pay and allowances, and confinement for one year."

Now, before Secretary Rumsfeld and his small circle of friends start salivating, they should consider two things. First and most obvious, trying to court-martial these six generals would be stupid beyond all measure. Very few officers�and, as far as I can tell, no retired officers�have ever been prosecuted under Article 88. I'm hardly suggesting that Rumsfeld break precedent; nor am I predicting that he might. But if he wanted to interpret the law literally�as the Justice Department does when it prosecutes someone under the federal espionage statute for receiving classified information�this would let him bring down the hammer.

But second, Rumsfeld should take a closer look at Article 88. In fact, all officers, active and retired, should take a look. In its commentary on that article, the Manual for Courts-Martial notes:

If not personally contemptuous, adverse criticism of one of the officials or legislatures named in the article in the course of a political discussion, even though emphatically expressed, may not be charged as a violation of the article.

In other words, if officers (active or retired) merely criticize Rumsfeld, even emphatically, they are not violating military law, as long as they avoid "contemptuous" words. (I guess this means you should preface your remarks by saying, "With all due respect, sir � ") So, it turns out that military law�which actually protects most critical speech�may not be why active-duty officers won't harsh on Rumsfeld. They refrain from criticism of any sort not because they fear court-martial, but because they know their careers will hit a brick wall. They'll never be promoted; they'll probably be transferred to the Arctic Circle.

The open question is: What is the legal meaning of "contemptuous"? Article 88 offers no definition. Neither does the commentary in the Manual for Courts-Martial. The only guidance that the Defense Department's public-affairs office could come up with was this definition from The Military Judges' Benchbook, paragraph 3-12-1d:

"Contemptuous" means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.

This sounds more like an 18th-century guide on gentlemen's etiquette than a modern-day casebook on military law. But if it is a crime, punishable by court-martial, to disdain Donald Rumsfeld, he could lock up half the Army officer corps.


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According to Eugene Fidell, a lawyer with the National Institute of Military Justice, the last time Article 88 was invoked was 1967, during the Vietnam War, when Reservist Lt. Howe�off duty, out of uniform, and off base near a local university�carried a placard in an anti-war demonstration that read "End Johnson's Facist [sic] Aggression in Viet Nam." He was convicted for using "contemptuous words" against the president (and, under Article 133, for "conduct unbecoming an officer"). The Court of Military Appeals affirmed the verdict, ruling that suppression of his speech was essential to prevent a military "man on a white horse" from challenging "civilian control of the military."

The only time a retired officer has been so much as charged with this offense was in 1942, when a retired Army lieutenant colonel who was opposed to America's intervention in World War II gave a speech impugning President Roosevelt's loyalty. The Army charged him under Article 88 but then withdrew the charges to avoid giving him and his views further publicity.
Fred Kaplan writes the "War Stories" column for Slate. He can be reached at

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Semper Fidelis
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