First, read this jeremiad from Adm. Will H. McRaven at the Washington Post. In light of these elements of the UCMJ:
Retired military officers are subject to the Uniform Code of Military Justice (UCMJ) under Article 2 of the UCMJ, which extends the jurisdiction of military law to “Retired members of a regular component of the armed forces who are entitled to pay.†“Retirees are subject to the UCMJ and may be tried by court-martial for violations … that occurred … while in a retired status.
and this from Article 88:
contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State.
should Adm. McRaven be courtmartialed?
What should be clear from those two passages is that military officers including retired military officers must tread very lightly when becoming involved in politics. IMO Adm. McRaven has overstepped. Whether you like Trump or not, disapprove of what he is doing or not, or are afraid of what he may do does not justify throwing everything else overboard. If it does what the heck are you defending?
I’d suggest there is a potential First Amendment issue here.
I can see why active duty members of the military might be subject to discipline under the cited provision of the UCMJ. Once someone has retired, though, I fail to see the logic behind the restriction on speech that this provision obviously represents.
Is anyone aware of a situation where this provision of the UCMJ was enforced against a retired member of the military who is not on Reserve status?
The first provision has been upheld by the NMCCA (or equivalent) many times. So has the second provision governing restriction on speech. I don’t know whether they have been upheld in combination.
Would need to know more background on the former provision. I can see the need to retain court-martial authority over retired members, for no other reason than to protect against benefits fraud. That seems to be the point of the “who are entitled to pay” provision.
I can see a legitimate interest though in protecting the country against a military coup, since its probably the greatest threat to ending self-government. See Newburgh Conspiracy, where failure to pay military pensions following the Revolution sparked an organization that threatened the Congress if payment was not received.
I don’t think he should be prosecuted.
It’s been a while since I’ve looked at this, but as I recall, there’s only been one criminal prosecution of any kind under article 88 since the UCMJ was adopted in 1950, and that was for an active duty officer protesting Vietnam. Administrative punishments are much more the norm, but retirees are not subject to administrative punishments.
Additionally, the guidance for this article in the Manual for Courts Martial as well as DoD and service directives set a pretty high bar for criminal prosecution, which is why most actions are administrative punishments. There is an even higher bar to prosecuting retirees and doing so requires special approval and is only to be done in “extraordinary” circumstances. McRaven’s comments do not strike me as extraordinary.
Given there is no case law for the prosecution of any retired officer for an article 88 violation and there is only one case of any kind in the last 1/2 century, I don’t think it would be appropriate to attempt to prosecute McRaven, especially considering what he’s stated is pretty tame compared to what some others have said.
Be that as it may, I do wish the retired officers and military personnel generally would endeavor to keep their military affiliation separate from their political opinions. I’m greatly concerned with what I see as increasing politicization of the military.
Andy, I don’t think he should be prosecuted, either, but I do think he should be censured. As I say I think he went too far and he knows better than that.
Unlike civilians, military retirement is akin to reserve status. Retired officers are still in the military, and they can be called up at any time.
In order to be separated from the military, an officer must resign his/her commission, and I think that when an officer resigns his/her commission, they are no longer eligible for retirement pay.
NOTE: I am not an expert about officers.
Tasty,
That is correct. That’s one of the reasons a military pension is not actually called a pension, but “retired pay.”
I’m not sure if any retirees were involuntarily returned to active duty over the past couple of decades, but a few thousand voluntarily returned.
Wow! We worry about some general saying true, but bad things about Trump, and we just ignore when they join the military-industrial complex and cost us billions of dollars. Just ignore the guy or dispute what he says.
BTW, I totally missed it when people here called for the same treatment when Flynn said the following in 2016. Also would note that he did not lose his security clearance and was instead named NSA.
“In Flynn’s speech, Obama has been a “weak and spineless†leader who “coddles†terrorists and has brought mayhem to our streets with his “fumbling indecisiveness,†“willful ignorance†and “total incompetence.†Anyone remember what he said about Hillary while actively campaigning with Trump?
Steve
I think that Flynn should have been censured for that. It’s insubordinate.
Hillary Clinton was not in the chain of command, did not hold any of the offices listed in Article 88. He can say anything he wants to about her.
Again, I am not sure I see the point of a censure, just don’t have him placed into the White House in a powerful position after doing that kind of stuff.
The increase in politicization was well underway before trump, but like a lot of our problems he has accelerated it. Putting so many military in his cabinet and in the WH. The vanity parade. Etc.
Steve
It would be an official expression of disapproval, one step short of courtmartial. Your objective seems to be vengeance, a continually escalating outrage. Mine is remediation of the harm that’s being done by seeking vengeance. We need to turn down the temperature rather than building to the next crescendo.
Not exactly sure what my objective is. I think that we are so far past the point of having retired senior officers remain above the fray that it is not possible to return to those days. Rather than even try, maybe i ma being too negative, let’s just acknowledge that being a former general, or any rank of that matter, is not especially relevant in politics or much of anything else, except maybe some specific military discussions. Stop lionizing the military and stop hiding behind them to justify policy decisions. AS part of this all former officers should lose their security clearances and not be allowed to work in defense related industries for x number of years after retiring.
Steve
I certainly agree with all of that. Having officers campaign for a particular weapons system or program their entire careers and after retirement go to work for the company that produces the system or program and lobby their colleagues or Congress is corrupt.
So, say someone was in the military but not a senior officer. Should this person be able to work for a defense contractor after getting out?
Asking for a friend.
I see more of a problem with general officers than with lower ranks. Perhaps a sliding scale moratorium (longer with higher ranks) would be the way to go.