In yesterday's rescued diary, A Point of Order: Generals Don't Have Friends, we had a short conversation about court-martials. A simple comment led me to a great review of the specific issue at hand, contemptous speech against the President.
It's long and detailed, so I'm going to give you the highlights below the fold. After you read this, you'll be able to talk to friends and families like you know what's going on. And, you should be able to defend your stance - if you think McCrystal needs to be court-martialed, there is precedence. If you think he shouldn't - there is precedence for that as well. Go figure.
First and foremost, a hat tip to soonergrunt for his comment that led me in the right direction. The day before, I had run my own google search and couldn't find what I was looking for. His lead was the answer and I really appreciate it!
For background, you may like to know that Article 88 of the Uniform Code of Military Justice says:
Any commissioned 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.
If you want to read the article for yourself, here is PDF file:
Contemptuous Speech Against the President
Lieutenant Colonel Michael J. Davidson
Chief, Administrative & Contract Law
Office of the Staff Judge Advocate
Third U.S. Army/U.S. Army Forces Central Command
LtCol Davidson wrote this in 1999 after a rash of military officers were disciplined for contemptuous speech against President Bill Clinton. He reminds his audience that several Presidents encountered similiar epidemics of criticism by active duty officers:
History shows that members of the military have been prosecuted for openly criticizing Presidents Lincoln, Wilson, Coolidge, Roosevelt, Truman, and Johnson. In the early 1970s, Army officials considered, but declined, criminal action against an officer for exhibiting a bumper sticker that read “Impeach Nixon."
Although this specific offense has only been around since the UCMJ, it does harbor back to Colonial Times and Davidson gives extensive references for both the Colonial Army and the British Army. There were several cases during the Civil War against President Lincoln. There was a decrease in incidents between the Civil War and WWI. But during the time of President Wilson, there were 52 court-martials for contemptous speech. And again, during WWII, "31 officers and soldiers were prosecuted."
Strikingly,
Since the UCMJ was enacted in 1950 only a single known court-martial has occurred pursuant to Article 88.28 In United States v. Howe, an Army Lieutenant was convicted for carrying a sign during an antiwar demonstration that read “Let’s Have More Than A Choice Between Petty Ignorant Facists In 1968” on one side and “End Johnson’s Facist Aggression In VietNam” on the other side.
Later in the article, we learn that Howe's biggest mistake was to carry a sign that was specifically contemptous of President Johnson, though, taking into consideration the time and the culture, I find it highly unlikely that Howe had any chance at being acquitted. Although Howe was not in uniform and did not declare himself a military member while at the demonstration, the court determined he was guilty. It is this incident that prevents many current active duty members from participating in any type of political demonstration.
After giving us the history of the Contemptous Speech provision, Davidson tells us who can actually be held accountable. General McChrystal and staff are certainly within the population:
the enactment of the UCMJ Congress limited application of the offense to commissioned officers, which by definition would exclude certain warrant officers, enlisted personnel, cadets, and midshipmen of the military academies.
I think it is interesting to note, though it is not pertinent to General McChrystal at this point in time, that a
significant body of individuals that are not beyond the reach of this provision is retirees, however. Article 2(a)(4) provides that the military has UCMJ jurisdiction over “[r]etired members of a regular component who are entitled to pay.”
This essentially stifles many a retired General from contemptous speech. However, only a single incident of court-martial of a retiree exists.
Many of you have questioned if General McChrystal or his staff actually engaged in contemptous speech. Davidson addresses the issue by explaining what contemptous speech actually is. Guidance from military source material is slim. We are left with a piece written by Col. Winthrop, Military Law and Precedents
abusive epithets, denunciatory or contumelious expressions, [and] intemperate or malev-
olent comments . . . .”
Furthermore,
although the legislative history is sparse on point, contemptu-
ous words include at least “disrespectful” speech. The Military Judges’ Benchbook posits that contemptuous “means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.”
I'll let you make your own conclusions to the comments at hand. But you might like to read some of the comments that started prosecution in the past:
During the Civil War, convictions resulted for referring to President Lincoln as “a ‘loafer,’ a ‘thief,’ a ‘damned tyrant,’ and a ‘damned black republican abolitionist.’” However, convictions were obtained for considerably less offensive comments such as “‘that Jeff Davis was as good a man as Abraham Lincoln,’ and [for] criticizing Lincoln’s policies toward the Negroes and then sarcastically calling him ‘our worthy President.’”
Army personnel suffered convictions for referring to President Wilson as “a ‘grafter,’ ‘the laughing stock of Germany,’” and “a ‘God damn fool.’” Also, convictions occurred for referring to President Roosevelt as “a crooked, lying hypocrite,” “the biggest gangster in the world next to Stalin,” and “Deceiving Delano.” Officers and enlisted personnel were also convicted, however, for such innocuous comments as President Wilson is “either an anarchist or a socialist,” “that there were men in Germany just as smart as [President Wilson]”, and “Woodrow Wilson is no more a Christian than you fellows, as no Christian would go to war.”
If, by this time, you believe that a court-martial might be possible for any of the staff or General McChrystal, you might be interested in the possible defenses for their words. Davidson does a great job of reviewing past defense for court-martial cases. They fall into four categories: Political Discussion, Private Conversations, Void for Vagueness, and Freedom of Speech.
Political Defenses
Historically, certain forms of political discussions, although critical of the President, have been considered beyond the reach of military law. To prosecute an officer or soldier for engaging in a purely political conversation was considered “inquisitorial and beneath the dignity of the [g]overnment.” This exception has not always been honored in practice, however. Indeed, the political discussion defense has been interpreted so narrowly that commentators have questioned its very existence.
At times, the bar was set so low that writing a letter to the editor that criticized Congress could be considered reason for court-martial:
When asked what he considered inappropriate criticism of Congress, General Crowder opined that some criticism was acceptable but an officer could be subject to court-martial if he “should come out in the public press and characterize Congress as an incompetent body, or a body which is not patriotic.” Under Crowder’s view, merely writing a letter to the editor of a newspaper expressing criticism of Congress’ ability to govern could be enough to generate court-martial charges; a low threshold indeed.
General Crowder served back in 1916, a fact that General McChrystal may be very happy about. He certainly would not fair well with General Crowder sitting on his court-martial board.
Since the UCMJ was entacted, this defense was only used once and it was unsuccessful. It was the case we mentioned before of Howe and his anti-war demonstration.
As explained by one member of the board of review, “it was not the expression of Lieutenant Howe’s political views that constituted his offense, but his public display of contempt for his Commander in Chief.”
Davidson comes to the conclusion:
the political discussion defense will fail as a safe harbor for any service member who uses words contemptuous on their face, even if uttered in heated political debate and even if the accused did not intend the words to be personally contemptuous.
Private Conversation
Military members are protected by private conversation:
The Manual also provides, however, that “expressions of opinion made in a purely private conversation should not ordinarily be charged.”
However,
the Manual, learned treatises, and reported case law provide no definitive standard for determining what constitutes a purely private conversation for purposes of this Article76 and under what circumstances privately spoken or written words should generate punitive action.
Davidson comes to the conclusion that private conversation is protected when it happens between officers of equal rank, or of officers that are near equal (one gets promoted slightly earlier than the other).
Void for Vagueness
At first, I thought this mean vagueness of the contempuous speech. It does not. Davidson is referring to vagueness of the law itself:
Generally, a statute is constitutionally infirm “when it fails to provide a person of ordinary intelligence with notice of its meaning and the conduct it prohibits.”
People who have used this defense try to make the case that they did not understand exactly what they were being accused of. Honestly, this portion of the review is the most confusing and Davidson discusses in depth the difference between military and civilian courts. If anyone believes this might be an avenue for any of the staff or General McChrystal if they face courtmartial, you may want to dig a little deeper.
Freedom of Speech
Here's the one that hits most civilians right in the gut:
Because of the unique mission and needs of the Armed Forces, however, civilians enjoy a greater degree of constitutional protection of this right than do service members.
That bears repeating with some additional back-up:
Because of the unique mission and needs of the Armed Forces, however, civilians enjoy a greater degree of constitutional protection of this right than do service members. Accordingly, courts will subject military laws restricting speech to a more deferential constitutional review than comparable civilian laws would experience. Additionally, where, as here, a statute is challenged that was enacted under Congress’ “authority to raise and support armies and make rules and regulations for their governance,” judicial deference to the military “is at its apogee.”
Only two cases in the past of raised Freedom of Speech as a reason.
The first accused to raise the defense was Army Private Hugh Callan, who was court-martialed and convicted for stating: “The President of the United States is a dirty politician, whose only interest is gaining power as a politician and safeguarding the wealth of Jews . . . .” His second conviction was premised on the comment that “President Roosevelt and his capitalistic mongers are enslaving the world by their actions
in Europe and Asia, by their system of exploiting.”
Callahan failed in his defense and the court was offended that Freedom of Speech had even been raised.
The second case is our familiar Howe. He claimed his 1st Amendment rights and the court looked at the history of limiting speech of military members, which goes back to the American Revolution and rejected his argument.
In conclusion, Davidson makes a great comment:
The President is more than just another politician. He is the Commander-in-Chief, and as such, is entitled to no less protection under the UCMJ than the most junior officer or noncommissioned officer who suffers disrespect at the hands of an insubordinate private. Indeed, by virtue of his superior position, the President is entitled to the highest degree of obeisance.
However, he ends his review with a warning:
Judge advocates need to beware of this punitive provision’s history, criticism, limitations, and narrow exceptions, to intelligently advise their clients on where the line is, or needs to be, drawn.
Times change and so do defenses.
You and I and the rest of the world can have this conversation but this will essentially come down to one person's decision, General Petreaus. He may decide to ask the Judge Advocate General Inspector General to investigate further. He may choose to let General McChrystal's resignation stand as is.
I, for one, am glad that the top guy finally took some responsibility for what happened on his watch. If McChrystal would not have resigned, it would have only repeated the actions of so many officers during the Bush era who refused to take the heat for what happened during their command. I don't care to see the man court-martialed. I think it would be bad for morale in a time when moral is already at an all time low. Lets get on with the business at hand and figure out a way to leave Afghanistan.