Outside the Beltway

Prosecuting Retired Generals

James Joyner · Thursday, April 27, 2006 · 9 comments

Fred Kaplan argues, correctly, that the retired generals who have spoken out against the Secretary of Defense could be subject to courts martial.

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.)

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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 exclamation mark is unwarranted. The Secretary of Transportation was formerly nominal head of the Coast Guard during peacetime; now it’s under the Secretary of Homeland Security. During wartime, the Coast Guard can be shifted under the Department of Navy, although I don’t think that’s happened since Vietnam.

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.

Kaplan forgot about the catch-all, Article 134:

Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

Clearly, Rumsfeld will not bring charges on these retired generals for speaking out. Not only would it be politically stupid beyond belief but there is no evidence of which I’m aware that he has any desire to punish these men.

Still, the could he question is interesting. The answer is almost certainly Yes. Dean Falvy discusses the limitations on free speech of military officers for FindLaw:

In recent years, Article 88 has ensnared several would-be commentators. Actual court martials have been very rare. But administrative punishments, forced retirements and potentially chilling warnings have not.

During the Vietnam War, an Army lieutenant was successfully court-martialed for marching in an antiwar demonstration while carrying a sign that assailed President Johnson’s “ignorance” and “fascist aggression.”

More recently, a number of military officers faced disciplinary action after drawing attention to deficiencies in President Clinton’s moral character – an activity which for civilians seemed to constitute a hearty national pastime throughout the 1990s. These cases, while relatively few in number, became emblematic of Clinton’s difficult relations with the military, particularly its professional officer corps. For example, Maj. Gen. Harold Campbell was compelled to retire after referring, no doubt affectionately, to the “gay-loving,” “womanizing,” “draft-dodging” and “pot-smoking” President in a speech at an Air Force banquet. Other officers received reprimands for characterizing their Commander-in-Chief as a “lying draft dodger,” a “moral coward,” and an “adulterous liar” in letters to their local newspapers.

Even retired officers may be at risk when they speak out – as Lt. Col. Michael J. Davidson noted in his July 1999 Army Lawyer article, “Contemptuous Speech Against the President.” Davidson noted that Article 88 may apply to retired commissioned officers by virtue of other articles of the UCMJ. No charges have been brought against a retired officer for such an offense since 1942, and most retired commentators are probably oblivious to the risk. But the theoretical possibility does exist.

A petitition to the Supreme Court from 1987 also addresses this issue. The case involved a retired petty officer who was recalled to active service for the purposes of courts martial after stealing from the Navy as a civilian employee. The Court of Military Appeals ruled:

A person who enlists in the armed forces changes his status from civilian to serviceman by taking the oath of allegiance. […] The Fleet Marine Corps Reserve is comprised of enlisted Marines who have completed at least 20 years of active service and have requested a transfer to inactive duty service. […] Each member of the Fleet Marine Corps Reserve is entitled, when not on active duty, to “retainer” pay, a salary that is computed on the basis of the basic pay received by a servicemember at the time of his transfer to the Fleet Marine Corps Reserve and his years of active duty service in the Marines. […] A member of the Fleet Marine Corps Reserve may also be recalled to active duty in several circumstances: by the Secretary of the Navy under regulations prescribed by the Secretary of Defense; in time of war or national emergency; in time of peace for up to

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The court ruled that petitioner could validly be court-martialed since he “has never left the Naval Service but instead
has merely been ‘transferred’ (in the exact words of the statute) from one component to another — not retired, not discharged, not separated — and continues to receive ‘retainer’ pay in return for his membership in the Fleet Marine Reserve”.

The Supreme Court did not take the case, thus upholding the conviction and ruling.