Should officers who criticize be disciplined?

[Lindsey]

They are army officers and have no business going public with their opinions.
They are retired army officers. And they have every bit as much right to go public with their opinions as retired general Tommy Franks has to speak publicly about his.

--Lindsey

[Judy G. Russell]

They are army officers and have no business going public with their opinions. In the United States, one does not sign away one's freedom of speech for one's entire life by being in the military. When the officer retires, he or she is fully entitled to speak his or her mind as any other citizen can. And each of the now five generals to speak out is retired.

[ndebord]

Earle,

Just want to make the point more directly. It is not just the retired generals who are upset, it is the active duty ones too. It is the retired ones who have spoken up. One who regrets not resigning publicly in challenge of White House policy was Marine Lt. Gen. Greg Newbold.

“I now regret that I did not more openly challenge those who were determined to invade a country whose actions were peripheral to the real threat - al Qaida,” Newbold wrote in Time Magazine.

[Lindsey]

The "trust" that American military officers should have is the trust of the American people, not the American politicians. Speaking out to warn the American people that the politicians are screwing up is not only not a violation of their trust but it is in the finest traditions of American free speech.
Amen.

And speaking to the issue of the conduct of a war that is currently the central focus of American foreign policy, and which has already cost the country dearly, not only in terms of blood and treasure, but in terms of narrowing foreign policy options and weakening American power for at least the next generation, is hardly in the same category as celebrity gossip.

We're not getting the truth from the current leadership, have not gotten the truth from them all along, and truth is the life blood of a democracy. The generals are doing no more than their patriotic duty.

--Lindsey

[Lindsey]

Military officers should address any concerns they may have to their commanders.
So long as they are on active duty, yes. But once they retire, I think they have a duty to speak from their unique expertise.

Generals make terrible politicians, as you already know.
Oh, I don't know; I think George Washington was a pretty damned good politician. King Arthur, by all accounts, wasn't half bad, either. And Julius Caesar was a brilliant a politician as he was a general. War is not strictly a military venture, it is a political one, too, and a general needs to have some feel for politics to operate at maximum effectiveness. George Patton was a brilliant general, but he had a tin ear for politics, and it's why in the end he ended up as a subordinate of Omar Bradly and Dwight Eisenhower. They had a far better appreciation of the impact of politics on the overall war effort than Patton ever did.

But whatever general truth there may be in your statement, there is certainly equal truth in the reverse: Politicians make terrible generals. And it's in no small measure because Rumsfeld hasn't a clue what a terrible general he is that we're in the mess we're in in Iraq.

--Lindsey

[Judy G. Russell]

I wonder if those taking the position that these retired generals shouldn't speak out in criticism of Rumsfeld take the same view of that retired general who spoke out in favor of him. I suspect not...

[Lindsey]

I wonder if those taking the position that these retired generals shouldn't speak out in criticism of Rumsfeld take the same view of that retired general who spoke out in favor of him. I suspect not...
Tommy Franks has been on the damned lecture circuit with happy talk about the war. Haven't heard anybody saying he should sit down and shut up.

--Lindsey

[ndebord]

I wonder if those taking the position that these retired generals shouldn't speak out in criticism of Rumsfeld take the same view of that retired general who spoke out in favor of him. I suspect not...

Judy,

One such retired general beloved by conservatives is Tommy Franks who carried the water for Rumsfeld, Cheney and Bush in the Iraq war.

In his book, "American Soldier" he probably would prefer that you salute him, preferably a Roman salute as he, perhaps whimsically, compares his role to that of the Roman proconsul Marcus Aemilius Scaurus and later wonders how it would feel to be cloaked in a purple-trimmed toga and a laurel wreath!

But I forgot. We're not "allowed" to use Roman metaphors.

[earler]

My sole comment is those officers were out of order and should be disciplined. It matters not if their opinions are correct or not. I don't care to address that question.

-er

[earler]

Washington became president because of his immense popularity as general. I don't know enough of american history at that moment to judge if he was a good statesman and given the situation at the time it is difficult to conclude that he was a good politician. He was a lucky one.

I won't even attempt to judge king arthur since it is far from certain he existed, except in myth. One might well say, however, that king alfred was both a fine military commander and statesman. I could also give high marks to octavius augustus, henry ii, henri iv, henry v and some others for their abilities in battle and in governance.

Caesar was political astute as well as an outstanding military leader. However, it is impossible to judge him as a statesman since his tenure was so short, though he certainly did quite a bit in the short time he ruled. Alas, he also marked the end of democracy in rome.

Bear in mind those I cite above were statesmen, leaders, not really politicians.

Grant was considered a mediocre president, though he certainly was a fine writer, as his autobiography attests. As for eisenhower, he was never really a military man in the sense of commanding men in battle. Until his time as supreme commander of the allies in ww2 his career had been in staff. His election was really more a matter of his popularity at the time. Both the democrats and republicans wooed him to be their candidate. As a president he served at a time when activism was not in order. Further he showed the pusillanimous side of his character faced with joe mccarthy. In sum, serendipity served him very well. As for bradley, he is shown in that film as being political. I'm not certain this the whole truth. He certainly was a fine officer in battle.

-er

[Judy G. Russell]

those officers were out of order and should be disciplinedDisciplined? For exercising their rights to free speech as Americans? What form of discipline are you suggesting? The public stocks? Forty lashes in the public square? It's a sure bet there ain't a thing in the Universal Code of Military Justice about "speaking your mind after you retire"!

Get a grip. These people are entitled to speak out -- and the public is entitled to hear what they have to say.

[Judy G. Russell]

Odd... I don't hear anyone criticizing Franks...

[Judy G. Russell]

And you won't hear anyone say it either. It's only critics who should be silenced.

[rlohmann]

Some clarification may be helpful here.

There are indeed no exceptions in the First Amendment for military personnel, but the constitutional rights of military personnel have long been held to be somewhat circumscribed by the realities of military service, and retired officers are military personnel.

Article 2(a)(4) of the Uniform Code of Military Justice (10 USC § 802(a)(4)) includes among individuals subject to its provisions "[r]etired members of a regular component of the armed forces who are entitled to pay." Among the so-called "punitive articles" of the UCMJ is Article 88 (10 USC § 888), which provides that "[a]ny commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense [...] shall be punished as a court-martial may direct.

As a matter of practical politics, these individuals are not going to be court-martialled--it would rejuvenate the fading NYT, for one thing--but they are violating the law.

[ndebord]

Some clarification may be helpful here.

There are indeed no exceptions in the First Amendment for military personnel, but the constitutional rights of military personnel have long been held to be somewhat circumscribed by the realities of military service, and retired officers are military personnel.

Article 2(a)(4) of the Uniform Code of Military Justice (10 USC § 802(a)(4)) includes among individuals subject to its provisions "[r]etired members of a regular component of the armed forces who are entitled to pay." Among the so-called "punitive articles" of the UCMJ is Article 88 (10 USC § 888), which provides that "[a]ny commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense [...] shall be punished as a court-martial may direct.

As a matter of practical politics, these individuals are not going to be court-martialled--it would rejuvenate the fading NYT, for one thing--but they are violating the law.

Ralph,

It would help when you are trying to make a point to not truncate the relevant section:

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 [emphasis added]shall be punished as a court-martial may direct.


As for your point that retired officers can't get involved as they face court martial because they accept retirement pay. Not so.

DOD Directive 1352.1 - MANAGEMENT AND MOBILIZATION OF REGULAR AND RESERVE RETIRED MILITARY MEMBERS, prohibits recalling a retired military member to actively duty solely for the purpose of subjecting them to court-martial jurisdiction. Therefore, unless that retired commissioned officer was recalled to active duty for other purposes, it would not be possible to subject them to court-martial for a violation of Article 88.

[rlohmann]

I was a bureaucrat for a portion of my Defense Department career and a lawyer for the rest of it, a body of experience which has afforded me an unparalleled standpoint from which to dismember your assertions with sadistic pleasure.

First, although the punctuation in the statute is somewhat confusing, the material you capitalized refers to using contemptuous words against officials of the state, etc., "in which he is on duty or present." (IOW, they can nail you for criticizing Maryland Governor Ehrlich if you're stationed at or visiting Ft. Meade, but not if you defame him while you're hanging around Dover AFB.)

Second, you're quoting a DoD Directive, the institutional author of which, of course, is the Secretary of Defense. It is nothing more than an administrative policy. It does not--and connot--make lawful the conduct prohibited in the UCMJ. Rather, it merely makes what is in effect a permanant administrative decision not to bring charges against retirees.

As I noted earlier, for political reasons, they won't be tried, but a mere internal DoD regulation affords them no legal protection.

Gotcha!

You may fall upon your sword. :)

<sneering with undbridled glee>

[ndebord]

I was a bureaucrat for a portion of my Defense Department career and a lawyer for the rest of it, a body of experience which has afforded me an unparalleled standpoint from which to dismember your assertions with sadistic pleasure.

First, although the punctuation in the statute is somewhat confusing, the material you capitalized refers to using contemptuous words against officials of the state, etc., "in which he is on duty or present." (IOW, they can nail you for criticizing Maryland Governor Ehrlich if you're stationed at or visiting Ft. Meade, but not if you defame him while you're hanging around Dover AFB.)

Second, you're quoting a DoD Directive, the institutional author of which, of course, is the Secretary of Defense. It is nothing more than an administrative policy. It does not--and connot--make lawful the conduct prohibited in the UCMJ. Rather, it merely makes what is in effect a permanant administrative decision not to bring charges against retirees.

As I noted earlier, for political reasons, they won't be tried, but a mere internal DoD regulation affords them no legal protection.

Gotcha!

You may fall upon your sword. :)

<sneering with undbridled glee>

Ralph,

It is more likely to rain cats and dogs than for that particular DoD directive to be rescinded. Rank has its perks and this is one of them.

Name me one case where a retired officer has been tried for political activity, short of rebellion.

[Judy G. Russell]

I fail to see how honest policy-based criticism can be considered "contemptuous words". Neither, by the way, does the Manual for Courts-Martials (2002, as amended 2005) (which, as I'm sure you know, is a Presidential Order and DOES provide legal protection for those who stay within its bounds).

The commentary to Article 88 provides: "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."

And DOD Directive 1344.10 (issued by Paul Wolfowitz), which notes that ACTIVE service members may not be involved in political activity, specifically exempts retirees.

I don't think you did your homework on this one. Would you like to borrow your sword so you can fall on it yourself?

[ndebord]

I fail to see how honest policy-based criticism can be considered "contemptuous words". Neither, by the way, does the Manual for Courts-Martials (2002, as amended 2005) (which, as I'm sure you know, is a Presidential Order and DOES provide legal protection for those who stay within its bounds).

The commentary to Article 88 provides: "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."

And DOD Directive 1344.10 (issued by Paul Wolfowitz), which notes that ACTIVE service members may not be involved in political activity, specifically exempts retirees.

I don't think you did your homework on this one. Would you like to borrow your sword so you can fall on it yourself?

Judy,

Sigh. Where did you dig that up? I was swimming in links trying to find extensions to the basic UCMJ and I found the DoD directives but not this little zinger.

[Lindsey]

I don't know enough of american history at that moment to judge if he was a good statesman and given the situation at the time it is difficult to conclude that he was a good politician. He was a lucky one.
Then I suggest that you take some time to learn some. A good start would be David McCullough's 1776, which is largely concerned with Washington. I have no idea what you mean by "given the situation at the time it is difficult to conclude that he was a good politician." What situation, and why is it difficult to conclude? Washington would not have been a successful general had he not also been a good politician. One of the reasons he retained the trust of the Continental Congress was because he understood, in part as a result of his own experience in the Virginia legislature, the constraints and pressures under which the members of Congress operated, and he was sensitive to that in his military planning. Lucky? Oh, sure, he had some lucky breaks -- a providential wind and early morning fog that allowed him to withdraw his forces from Long Island in 1776, for example -- but Washington's success as a general was due in large part to his character.

Washington became president because of his immense popularity as general.
Actually, Washington was not universally popular as a general, and he survived at least one intrigue, in 1778, to replace him with Horatio Gates (http://www.americanrevolution.com/HoratioGates.htm), who at the time was, at least on the face of it, a more successful general, due in no small part to his skill as politician and statesman. (And if you have doubts about that, be sure to read about his handling of the Newburgh Conspiracy (http://earlyamerica.com/review/fall97/wshngton.html). In that, perhaps more than any other single act, he saved the American republic.)

Washington was made the commander of the Continental Army in part because he was a Virginian, and John Adams, among others, appreciated that it was critical to establish that the war for independence was not just a New England effort. But Horatio Gates was also a Virginian (though not a native-born one), as was Charles Lee (also not native-born), who had far more military experience. So why Washington? Because people trusted him; he had a reputation for exemplary character and straight dealing, and he commanded enormous respect. And he became president for the same reason -- because in spite of reservations that many people had about putting significant power in the hands of a chief executive, people trusted Washington to use his power wisely and interest of republican ideals.

I won't even attempt to judge king arthur since it is far from certain he existed, except in myth. One might well say, however, that king alfred was both a fine military commander and statesman. I could also give high marks to octavius augustus, henry ii, henri iv, henry v and some others for their abilities in battle and in governance.

Ah, well -- I have read a intriguing argument that Arthur did indeed exist, as a 5th century regional ruler in the vicinity of York, along Hadrian's Wall and north to the Antonine wall, headquartered at Carlisle; and that Lancelot and other of his legendary comtemporaries existed as well, but never mind about that -- I think you make my case for me, though I do not understand the distiction you are drawing between leaders and statesmen on the one hand and politicians on the other. When it comes to governance (and other things too, as it happens), leadership and politics go hand in hand. How successful would Abraham Lincoln have been in prosecuting the Civil War had he not also been a master politician?

Grant was considered a mediocre president
And I never said anything about Grant, did I?

As for eisenhower, he was never really a military man in the sense of commanding men in battle.
Oh, give me a break. Do you never tire of drawing meaningless distinctions? Eisenhower was first and foremost a military man, but he certainly had political skills, critical when you are trying to manage an alliance of jealous allies and touchy generals.

--Lindsey

[rlohmann]

There's apparently a degree of confusion here about the place of the MCM in the legal hierarchy. (For a good overview, you might want to look in 160 Military Law Review 96 (1999).) The Manual is not itself a statute, but rather an executive order that implements--and, in the physical volume in which the military distributes it, includes--the UCMJ. Consequently, it does not, any more than any other administrative regulation, supersede or override the statute it implements.

The DoD Directive is a full step lower in the administrative-law hierarchy than the MCM, since it's merely an internal (i.e., non-APA) procedural regulation. Wolfowitz' signature is of no particular significance. While the Deputy Secretary of Defense usually signs DoD Directives, the signature is an administrative authentication without deeper legal significance; almost anybody with an office in the "E" Ring of the Pentagon can sign DoD Directives.

In this context, you'll surely agree that an entity issuing an administrative regulation has the authority to modify or cancel it. (Whether such an act would be wise politically is another issue, of course.)

Your reliance on the commentary you quoted seems likewise misplaced. It begins with the qualification, "if not personally contemptuous...." In this context, former General Paul Eaton is quoted as saying, "[Rumsfeld] has shown himself incompetent strategically, operationally and tactically." What, exactually, is your definition of "not personally contemptuous"?

You may now repair to the Arms Room and get your sword.

<sneering legalistically>

[earler]

There are numerous assessments of washington qua general and a few qua politician. In any case, the fact he led the continental army was what made him president, as it was eisenhower's role as supreme commander for europe. Politics were simpler in the days of washington and one can't judge how he would have played out today based on his performance in the late 18th century.

I mentioned grant since we were speaking of military men who become president.

Eisenhower never was a battlefield commander. His whole career was on staff, unlike patton, bradley and others. One could also argue that his decision not to advance to berlin was a mistake that gave us the cold war for lthe following 45 years. There is nothing meaningless in making a distinction between a fighting general and political one. I'd rather have a mcarthur or a patton leading me into battle than an eisenhower.

Yes, he was first of all a military officer and only a politician after his retirement. But, he wasn't that good in either capacity.

Governance may be successful without being a politician. Look at stalin or hitler.

-er

[ndebord]

Your reliance on the commentary you quoted seems likewise misplaced. It begins with the qualification, "if not personally contemptuous...." In this context, former General Paul Eaton is quoted as saying, "[Rumsfeld] has shown himself incompetent strategically, operationally and tactically." What, exactually, is your definition of "not personally contemptuous"?

You may now repair to the Arms Room and get your sword.

<sneering legalistically>

Ralph,

Let me jump in here with a small observation. Calling Rummie incompetent strategically, operationally and tactically is not an attack on him personally, rather a stinging attack on him professionally.

[Judy G. Russell]

Sigh. Where did you dig that up? I was swimming in links trying to find extensions to the basic UCMJ and I found the DoD directives but not this little zinger.Google is my friend. I Googled the word "contemptuous words"! Plus the UCMJ is online with all other federal statutes at http://uscode.house.gov/.

[Judy G. Russell]

In this context, you'll surely agree that an entity issuing an administrative regulation has the authority to modify or cancel it.
Not retroactively. Even in the military, due process remains in effect.

Your reliance on the commentary you quoted seems likewise misplaced. It begins with the qualification, "if not personally contemptuous...." In this context, former General Paul Eaton is quoted as saying, "[Rumsfeld] has shown himself incompetent strategically, operationally and tactically." What, exactually, is your definition of "not personally contemptuous"?The same as the courts' definition, which does NOT include this sort of political, policy criticism.

In Parker v. Levy, 417 U.S. 733 (1974), the comment charged under Art. 133-134 (as contemptuous words) was "Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children."

In Ethredge v. Hail, 56 F.3d 1324, 1328 (11th Cir. 1995), a civilian employee of the military was barred by administrative order from having bumper stickers on a vehicle he drove on base called Bush a "liar" and saying "hell with Bush." The court explained:

We reject Ethredge's contention that the administrative order is unreasonable. First, the order does not prohibit robust criticism of the President; instead, it bars only those messages that "embarrass or disparage" the Commander in Chief. Second, under the UCMJ the military can impose discipline against its members for displaying similar signs.In United States v. Howe, 17 U.S.C.M.A. 165 (1967), the defendant described President Johnson as a "petty ignorant fascist". The Howe court itself noted that "The evil which Article 88 of the Uniform Code ... seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Chief of State and the Commander-in-Chief of the Land and Naval Forces of the United States."

The policy-specific criticism of Rumsfeld is so far different from these comments that it simply cannot be considered within the scope of Article 88.

The courts also suggest, as I think appropriate, a true distinction between speech while on active duty (whether on base or not) and speech when not on active duty.

The Howe court noted: "petitioner is a reserve officer, rather than a professional officer, but during the time he serves on active duty he is, and must be, controlled by the provisions of military law."

In Dash v. Commanding General, Ft. Jackson, 307 F. Supp. 849, 852 (D.S.C. 1969), the court held that "members of the armed forces, at least when operating in that capacity, can be restricted in their right to open discussion." Retirees are NOT "operating in that capacity."

See also United States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996):

The military must be subordinate to its civilian superiors. This does not mean that servicemembers may not express their views. However, they do not have an absolute right to express their views. "Freedom of expression upon public questions is secured by the First Amendment." The right to freedom of speech "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." New York Times Co. v. Sullivan, 376 U.S. 254, 269, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964). In fact "public discussion is a political duty." Id. at 270, quoting Whitney v. California, 274 U.S. 357, 375-376, 71 L. Ed. 1095, 47 S. Ct. 641 (1927)(Brandeis, J., concurring). To carry out this duty and exercise this right, there must be freedom to think as you will, to speak as you think. However, this right must be tempered in a military setting based on the mission of the military, the need for obedience of orders, and civilian supremacy.The comments of these retired officers fall outside of those concerns and cannot be sanctioned on those grounds.

The sword is back in your hands.

[Lindsey]

the fact he led the continental army was what made him president
Believe that if you want; I think that is much too simplistic a view. There's been plenty written about Washington in the last several years that looks at his skills as a leader of men, skills that included political dexterity.

Politics were simpler in the days of washington and one can't judge how he would have played out today based on his performance in the late 18th century.
Malarky. Politics is a human endeavor, and human nature has not changed since the 18th century; I would not expect that the essence of politics has changed all that much either. In fact, I doubt it's changed all that much since the days of ancient Egypt.

I mentioned grant since we were speaking of military men who become president.
Uh -- no, we weren't. We were discussing whether or not it was a given that generals had no talent for politics.

Eisenhower never was a battlefield commander.
And I still say that is irrelevant to the question of whether or not he had political skill. Or are you now trying to change your statement from "Generals make lousy politicans" to "Battlefield generals make lousy politicians"? (Though I would take issue with that blanket statement, too.)

You can be dismissive of Eisenhower's record as Supreme Allied Commander of Europe if you wish, but he managed to hold together an alliance of very prickly politicians and battlefield generals and win a complete victory in the European theater. I myself think that is not to be sneezed at. No, he wasn't a battlefield general; his great talent was for planning. Contrast the 1944 Allied invasion of Europe with the 2003 American invasion of Iraq, and I think it makes very clear the importance of effective planning to the overall success of a military operation.

And was it Eisenhower's decision not to advance into Berlin? My recollection of history is that that was an agreement made among the heads of the Allied governments, and as such Eisenhower would have been bound to honor it.

Governance may be successful without being a politician. Look at stalin or hitler.
Ummm -- let me get this straight: you regard Stalinist Russia and Nazi Germany as examples of successful governance?

--Lindsey

[earler]

It is most unlikely that washington would have become president without his past service commanding the continental army.

Human nature may not have changed since the 18th century, but politics certainly has. In fact, it has changed since fdr, whose charisma wouldn't have gone down well today, as it did in the 1930s and 1940s. One could say the same for de gaulle, by the way. He wouldn't have been elected today.

As for military men qua politicians. The more political ones, like caesar (who was, of course, an excellent strategist and tactician, a rare trait) can be very successful. I think eisenhower had several weaknesses, one was laziness, the other his age (he was really prematurely old). My step-father was a member of an ad hoc committee formed to vet him for the presidential nomination and wasn't impressed. But, he had the best chance of winning the election.

As for stategy for the invasion of the continent, eisenhower's role was more the head of a committee. In any case, there were several decisions that were disastrous or near disastrous.

Finally, stalin governed successfully for some 30 years, didn't he? And, hitler, if he hadn't made the same mistake that napoleon made, invade russia, might have reigned somewhat longer than 14 years.

-er

[rlohmann]

It is more likely to rain cats and dogs than for that particular DoD directive to be rescinded. Rank has its perks and this is one of them.

Name me one case where a retired officer has been tried for political activity, short of rebellion. That opinion is not in dispute. I had pointed out that ... for political reasons, they won't be tried, but a mere internal DoD regulation affords them no legal protection.

The key word is "legal." The statute (the UCMJ) makes contemptuous statements unlawful. The regulation (the MCM, including the comments) merely states that, as a matter of policy, legal action will not be taken against retirees. IOW, the contemptuous statements are still unlawful, but it's Defense Department policy not to recall them to active duty for criminal prosecution.

[rlohmann]

If a court-martial were to be convened, that is precisely the argument defense counsel would make. I don't think it would fly, but it's certainly what lawyers call a colorable argument. The construction to be placed on it would be a matter for the court to decide.

[rlohmann]

Not retroactively. Even in the military, due process remains in effect.Apples and oranges. The recission of an administrative regulation is not the same thing as the enactment of an ex post facto law.

The same as the courts' definition, which does NOT include this sort of political, policy criticism.

In Parker v. Levy, 417 U.S. 733 (1974), the comment charged under Art. 133-134 (as contemptuous words) was "Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children." It isn't clear how this case supports your argument because it isn't about Article 88 at all.

The charges against Captain Levy were violations of Article 90 (disobedience to a lawful order), Article 133, (the "general article"; actions prejudicial to good order and discipline), and Article 134 (conduct unbecoming an officer.). In fact, the only mention of Article 88 in Parker v. Levy is a passing reference, in the dissent by Justice Douglas (!), to the opinion of the Court of Military Appeals in United States v. Howe, 17 U.S.C.M.A. 165 (1967), a case in which the US Court of Military Appeals upheld an Article 88 conviction. (You cite United States v. Howe yourself, below. I'll get to that.)

In Ethredge v. Hail, 56 F.3d 1324, 1328 (11th Cir. 1995), a civilian employee of the military was barred by administrative order from having bumper stickers on a vehicle he drove on base called Bush a "liar" and saying "hell with Bush." Another case that you perhaps shouldn't have cited. In the first place--and the court itself was somewhat remiss in not making this clear--Ethredge, as a civilian employee of the Air Force, was, in the somewhat convoluted language military lawyers use, "not a person subject to the Uniform Code of Military Justice." For that reason, if for no other, this isn't an Article 88 case at all. In the second place, the court upheld the ban on the disparaging bumper stickers.

In United States v. Howe, 17 U.S.C.M.A. 165 (1967), the defendant described President Johnson as a "petty ignorant fascist". The Howe court itself noted that "The evil which Article 88 of the Uniform Code ... seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Chief of State and the Commander-in-Chief of the Land and Naval Forces of the United States."

The policy-specific criticism of Rumsfeld is so far different from these comments that it simply cannot be considered within the scope of Article 88. Nice try, but in the first place, as I noted above, the effect of this case was to uphold the validity of Article 88. In the second place, the assertion that the criticism of Rumsfeld that is at issue here is "so far different" from the kind of speech condemned by the court is an issue nowhere addressed in the opinion.

The courts also suggest, as I think appropriate, a true distinction between speech while on active duty (whether on base or not) and speech when not on active duty. The Howe court noted: "petitioner is a reserve officer, rather than a professional officer, but during the time he serves on active duty he is, and must be, controlled by the provisions of military law." Since the court in this case upheld the Article 88 prosecution, this language can be nothing more than dictum at best. There is no indication whatever that the court intended to limit the applicability of Article 88 to active-duty personnel.

In Dash v. Commanding General, Ft. Jackson, 307 F. Supp. 849, 852 (D.S.C. 1969), the court held that "members of the armed forces, at least when operating in that capacity, can be restricted in their right to open discussion." Retirees are NOT "operating in that capacity." By its express language, "[a]ny commissioned officer who uses contemptuous words...," Article 88 does not apply to enlisted personnel, who were the petitioners in Dash. Consequently, this case is not on point, either.

See also United States v. Brown, 45 M.J. 389, 397 (C.A.A.F. 1996): Um... This is a sodomy case (Article 125 UCMJ) in which free-speech considerations are decidedly peripheral.

The sword is back in your hands. In view of the foregoing, I think it far more appropriate for you to do an about-face, double-time to the Arms Room, and make sure you ask the Armorer to sharpen your sword before you fall on it.

[Judy G. Russell]

As a lawyer, you should know that there is rarely a case "on all fours" (matching in all facts and applications of the law) to the one you're dealing with. Lawyers thus deal in precedents and arguments by analogy. You've said "I don't like those cases because they're not EXACTLY the same thing." Right. Nothing ever is. But the principles apply, and you haven't answered that at all.

[rlohmann]

As a lawyer, you should know that there is rarely a case "on all fours" (matching in all facts and applications of the law) to the one you're dealing with. Quite true. Of course, a convincing argument must necessarily be grounded in cases that are at least on all threes. :)

Lawyers thus deal in precedents and arguments by analogy. You've said "I don't like those cases because they're not EXACTLY the same thing." Right. Nothing ever is. But the principles apply, and you haven't answered that at all. Oh, but I did!

I pointed out that your cases were in no way analogous, either as to parties or as to legal issues, to the situation in question.

The concept of reasoning by analogy necessarily requires analogies reasonably related conceptually to the controversy. I had argued that neither the MCM nor the DoD Directive operates to override or in any way vitiate Article 88. However, nothing in the cases you cited contains any situations with respect to the aggrieved individuals or legal issues addressed by the court that can be "analogized" into a an argument against the validity of Article 88.

Of the cases you cited, one wasn't even about Article 88; in two others the parties weren't subject to Article 88 (one was a civilian and the others were enlisted personnel), and in one, the court actually upheld the validity of the Article. The cases mention Article 88 in one context or another, but mere mention is not enough. The cases, read together, must allow the construction of a syllogism (which is what legal argument really is), the unavoidable conclusion of which is that Article 88 is a nullity.

I couldn't construct that syllogism from the opinions of the courts in the cases you cited.

To convince me--and presumably anybody else--you'd have to assemble cases that, taken together, compel the conclusion that either the First Amendment, the Manual for Courts-Martial, or the Constitutional prohibition in Section 9 of Article I against ex-post-facto laws would operate to make Article 88 a nullity with respect to the officers concerned.

I don't think you've done that.

[Judy G. Russell]

you'd have to assemble cases that, taken together, compel the conclusion that either the First Amendment, the Manual for Courts-Martial, or the Constitutional prohibition in Section 9 of Article I against ex-post-facto laws would operate to make Article 88 a nullity with respect to the officers concernedWrong. I only have to assemble a good argument -- and I have -- that it does not apply in these circumstances. The situations in which contemptuous words have been found -- both under Article 88 and other articles where the concept of contemptuous speech is also applicable -- are so far different from political speech focused on policy issues. Combine that vast difference in type and nature of speech with the administrative rule that says political speech, even vigorous political speech, is not covered, and you have speech to which Article 88 simply doesn't apply.

[Lindsey]

It is most unlikely that washington would have become president without his past service commanding the continental army.
Military service alone would hardly have been enough, and would probably have even been a negative factor. The civilian leaders of post-Revolutionary America were extremely suspicous of military leaders and unwilling to do anything that even hinted of a chance of establishing a ruling military class. That's one reason there was so much reluctance to grant life pensions to officers of the Continental army at the end of the war, even though such had been promised, and general officers, especially, had suffered great financial hardship, let alone physical hardship, during the course of the war.

Human nature may not have changed since the 18th century, but politics certainly has. In fact, it has changed since fdr, whose charisma wouldn't have gone down well today, as it did in the 1930s and 1940s.
Your contention is that charisma is not a factor in today's politics? Earle, what in the name of heaven are you smoking?? Analysts have been saying for a very long time now that one of the Democratic Party's greatest problems is a charisma deficit.

I think eisenhower had several weaknesses, one was laziness, the other his age (he was really prematurely old). My step-father was a member of an ad hoc committee formed to vet him for the presidential nomination and wasn't impressed.
Oh, gee, what was I thinking? Of course your unnamed stepfather's opinion should be considered over and above that of any other historian that has ever written about Eisenhower...


Finally, stalin governed successfully for some 30 years, didn't he?
What exactly is your definition of "successful governance"?

--Lindsey

[rlohmann]

Sorry. I don't think you've made your case. What's missing is a consideration of the statutory policy underlying the UCMJ itself.

The Code places military personnel in a far different--and much more restrictive--legal regime than civilians, and, within the military, prescribes significantly different treatment for officers and enlisted personnel. That may strike a civilian as benighted, but the civil courts have upheld it consistently.

With respect to Article 88 (and Article 2, which made Article 88 applicable even to retired officers), the Congress was very much aware of the dangers of permitting military personnel, particularly officers, to involve themselves in politics. Consequently, it included a "muzzle" in the form of Article 88, a muzzle that criminalizes contemptuous statements by officers.

To show that the Article 2/Article 88 combination is bad law, you have to do more than just string together opinions praising free speech; you have to demonstrate the flaws in the decision by the Congress that the interests of the United States mandated certain restrictions on free speech for certain categories of individuals.

In other words, you have to explain how the policy interest of keeping "men on horseback" out of politics is no longer valid.

I just don't think you've done that.

[ndebord]

...you have to explain how the policy interest of keeping "men on horseback" out of politics is no longer valid.

I just don't think you've done that.

Ralph,

I'm curious. Did you have the same opinion about the Vietnam War and the willingness of senior military leadership then to swallow their opinions and let a debacle unfold?

I'll let you and Judy battle it out over the particulars of the UCMJ on this. You already know my opinion on it. But the danger here is to lose sight of why at this juncture in time, retired military leaders have come forward.

One thought is from Gen. Newbold: "My sincere view is that the commitment of our forces to this fight was done with a casualness and swagger that are the special province of those who have never had to execute these missions -- or bury the results."

And it is not just the military leadership that feels this has been a huge mistake. Zbigniew Brzezinski said that the Iraq War has led to the "delegitimization" of America. As others have pointed out, many of your generation, this puts the cart in front of the horse. A successful policy of containment replaced by a preemptive war (or wars) and this one in the wrong place.

I know you don't much care for the liberal media, or even talking heads of military heritage, but perhaps this quote from Anthony Cordesman will make you rethink your position that NOTHING, absolutely NOTHING can justify speaking up against a President by retired members of the military.

Said Cordesman, "We've gone almost exactly the same road as Vietnam: from the neo-liberals (who gave us Vietnam) to the neocons of today. From the hated civilians under Robert McNamara to the hated civilians under Rumsfeld."

[Judy G. Russell]

Nobody is arguing that "men in horseback" should not stay out of politics. However, to mix metaphors, RETIRED men no longer on horseback is a whole 'nother kettle of fish. Douglas MacArthur could properly be run out of the military town on a rail for disagreeing with Truman while in uniform. But nobody can seriously argue that he would not have been able to run against Truman for the presidency and criticize him up one side and down the other.

As for the UCMJ, every single court that has upheld any restriction on political speech or political action in any context has noted that such restrictions, even as to the military, can be upheld only to the extent that they are necessary to achieve the purpose behind the restriction. In United States v. Howe, 17 U.S.C.M.A. 165 (1967), the court noted that "The evil which Article 88 of the Uniform Code ... seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Chief of State and the Commander-in-Chief of the Land and Naval Forces of the United States."

It is impossible to see how the political speech of these retired officers impairs discipline or promotes insubordination by an officer.

[Lindsey]

I know you don't much care for the liberal media
What liberal media?

--Lindsey

[Lindsey]

But the danger here is to lose sight of why at this juncture in time, retired military leaders have come forward.
Of course. Why do you think the Bush Administration and its defenders are so busy throwing up smokescreens in the form of legalisms and meaningless head counts?

--Lindsey

[earler]

You should really read my words more carefully. I didn't say charisma isn't important today. I did say that the charisma of a roosevelt or a de gaulle, or even a churchill, wouldn't play today. Hitler had charisma for the germans at the time, but it is most unlikely it would play well today. Curiously enough, berlusconi has a charisma for italians which is very old fashioned. I don't think it would play elsewhere.

Of course, my evidence is anecdotal as concerns the assessment made by my step-father. However, there is the advantage that he met eisenhower, in fact played golf with him at the time, and had ample opportunity to form a judgement. Historians rarely encounter their subjects. They also assess actions and the results of such actions. In the case of eisenhower, my step-father's opinion was confirmed by the tenure of eisenhower in office during the following 8 years.

What is successful governance? It is first and foremost the ability to remain in power. That doesn't mean the country prospers, however.

-er

[Lindsey]

You should really read my words more carefully. I didn't say charisma isn't important today. I did say that the charisma of a roosevelt or a de gaulle, or even a churchill, wouldn't play today. Hitler had charisma for the germans at the time, but it is most unlikely it would play well today. Curiously enough, berlusconi has a charisma for italians which is very old fashioned. I don't think it would play elsewhere.
Berlusconi's charisma is apparently not playing all that will in Italy these days, either.

But you're being very vague. What is it about the personalities of Roosevelt or DeGaulle or Churchill that makes you think they would not be successful political leaders in the current day?

What is successful governance? It is first and foremost the ability to remain in power. That doesn't mean the country prospers, however.

That's where we differ, then. I don't call it successful governance unless the country prospers. That doesn't require that it be a republican form of government -- countries have prospered under autocracies -- but it does require stability and prosperity, or at least being put on the path to those things.

--Lindsey

[rlohmann]

I'm curious. Did you have the same opinion about the Vietnam War and the willingness of senior military leadership then to swallow their opinions and let a debacle unfold?My opinions about the Vietnam War are probably different from those of the majority around here. I was bothered by the idea of a land war in Asia--I was in the infantry at the time--and even more bothered by some of the careerist politicking that appeared to be encouraged by Generals Harkins and Westmoreland, but I didn't have much use for the "give peace a chance" group. More to the point, I wasn't aware then and I'm not aware now of any overpowering and widespread opposition in the Pentagon to the Vietnam War.

I'll let you and Judy battle it out over the particulars of the UCMJ on this. You already know my opinion on it. But the danger here is to lose sight of why at this juncture in time, retired military leaders have come forward. Press coverage, TV appearances, book contracts....

Keep in mind that an officer can always resign his commission, which has the effect of removing him from the coverage of the UCMJ and making him free to say whatever he wants about anybody. These guys elected to take their paychecks, retire, take their retirement pay and benefits, and then start talking to the press.

Doesn't that strike you as vaguely disreputable?

One thought is from Gen. Newbold: "My sincere view is that the commitment of our forces to this fight was done with a casualness and swagger that are the special province of those who have never had to execute these missions -- or bury the results." Eloquent, but a little late. Again, he could always have resigned.

And it is not just the military leadership that feels this has been a huge mistake. Zbigniew Brzezinski said that the Iraq War has led to the "delegitimization" of America. As others have pointed out, many of your generation, this puts the cart in front of the horse. A successful policy of containment replaced by a preemptive war (or wars) and this one in the wrong place. Brzezinski has every legal right to say whatever he likes. So does everyone else not subject to Article 88. (In fact, criticism within the military of the Pentagon and White House is not in any way discouraged. You're just not allowed to go public with it.)

I know you don't much care for the liberal media, or even talking heads of military heritage, but perhaps this quote from Anthony Cordesman will make you rethink your position that NOTHING, absolutely NOTHING can justify speaking up against a President by retired members of the military. I never said that, and I regret having said anything that implied it. My position is simply that there is a law that prohibits commissioned officers, active or retired, from using contemptuous language in public toward the civilians who run the country. Judy has argued that that isn't the law, or if it is, it shouldn't be, but you can read both sides of that discussion and draw your own conclusions. (I do happen to think that there's a strong public-policy interest in keeping the military--active or retired--out of politics.)

[rlohmann]

Nobody is arguing that "men in horseback" should not stay out of politics. However, to mix metaphors, RETIRED men no longer on horseback is a whole 'nother kettle of fish. As are second lieutenants, even off duty and out of uniform, but the court in United States v. Howe, one of the cases you cited, saw no difficulty in applying Article 88 to one such officer. The case was not appealed to the Supreme Court, but that court's decision in Parker v. Levy, another of the cases you cited, perceived no injustice in upholding the special--and often severe--restrictions placed on military personnel, particularly officers.

Douglas MacArthur could properly be run out of the military town on a rail for disagreeing with Truman while in uniform. But nobody can seriously argue that he would not have been able to run against Truman for the presidency and criticize him up one side and down the other. Eisenhower resigned his commission. He was therefore not a commissioned officer drawing retired pay and accordingly was not a person subject to the Uniform Code of Military Justice. See my note to Nick about that.

As for the UCMJ, every single court that has upheld any restriction on political speech or political action in any context has noted that such restrictions, even as to the military, can be upheld only to the extent that they are necessary to achieve the purpose behind the restriction. Of course. Isn't that statement applicable to just about every restriction on free speech?

What you're not coming to grips with is the consensus, both in the legislature and in the courts, that the military, and the individuals who comprise it, must be more tightly limited than the rest of society. "In the armed forces some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected." 21 USCMA 564, 569 (1972). There doesn't seem to be a lot of disagreement with that concept; it seems to me that you're swimming uphill against some very cogent authority.

In United States v. Howe, 17 U.S.C.M.A. 165 (1967), the court noted that "The evil which Article 88 of the Uniform Code ... seeks to avoid is the impairment of discipline and the promotion of insubordination by an officer of the military service in using contemptuous words toward the Chief of State and the Commander-in-Chief of the Land and Naval Forces of the United States." That's true, too. There are a lot of policy interests lurking in Articles 2 and 88. You're doing a good job of arguing my case. :)

It is impossible to see how the political speech of these retired officers impairs discipline or promotes insubordination by an officer. Not for you, perhaps, but the Congress certainly saw the possibility when it included retired officers in its prohibition. Are suggesting that retired officers don't exercise influence--often strong influence--over their former associates?

Whether an officer is active or retired does not--and should not--make any difference with respect to the prohibition in question. Military careers are not, in our society, expected to culminate in political office. While retired military personnel occasionally do become politicians, the military establishment provides no support to such office-seeking. A look at South America (and a lot of other places) will convince you that the prohibition is a good idea.

[ndebord]

Ralph,

RL>> My opinions about the Vietnam War are probably different from those of the majority around here. I was bothered by the idea of a land war in Asia--I was in the infantry at the time--and even more bothered by some of the careerist politicking that appeared to be encouraged by Generals Harkins and Westmoreland, but I didn't have much use for the "give peace a chance" group. More to the point, I wasn't aware then and I'm not aware now of any overpowering and widespread opposition in the Pentagon to the Vietnam War.

I guess we have been reading different histories of that conflict.

Aside from the cliched Maxwell Taylor dictum, to paraphrase Thou shalt not get involved in a land war in Asia that everyone has heard of I submit the following:

As early as 1961, General McGarr concluded with striking honesty that "as I am jealous of the professional good name of our Army, I do not wish it to be placed in the position of fighting a losing battle and being charged with the loss." In 1965, as combat forces arrived in Vietnam, the Pacific Commander, Admiral U.S.G. Sharp, warned Westmoreland of "grave political implications" if U.S. troops "are committed for the first time and suffer a defeat." Admiral David McDonald, the Chief of Naval Operations, likewise feared that, after American defeat, "the only group left answerable for the war would be the military." In 1967, Harold K. Johnson, expecting the worst, warned fellow officers that the military was going to "take the fall" for the impending disaster.*

* [McGarr to Lemnitzer, 12 October 1961, FRUS, Vietnam, 1961, 347-59; NMCC to White House, 13 June 1965, NSC History, "Deployment"; McDonald in Richard K. Betts, Soldiers, Statesmen, and Cold War Crises (Cambridge, MA., 1971) 11; Johnson in Military History Institute Oral History Program interview, 10.]

General Harold Keith Johnson, from 1963 to 1964, served as the deputy chief of staff for operations. He then was the Chief of Staff of the Army from 3 July 1964 to 2 July 1968. Johnson almost resigned over his opposition ot how the war was being fought in Vietnam, as shown in this article:

http://www.military.com/opinion/0,15202,94065,00.html

'President Johnson wanted to fight the Vietnam War on the cheap and on the quiet. He didn't want to disturb middle-class America or Congress for fear they would want to pay for the war by cutting back on his Great Society social and welfare programs. So he would send off Army units seriously under strength, leaving behind the best-trained soldiers whose enlistments or draft tours were near an end.

Gen. Johnson was furious. He summoned his car and on the way to the White House he removed the eight silver stars from his shoulders. But the general was debating with himself the whole way, and just short of 1600 Pennsylvania Avenue he ordered the driver to turn around. Gen. Johnson had convinced himself that if he resigned in protest LBJ would replace him in a matter of hours with someone much worse and more pliable. So it was best to remain and work from within to fix what he could.

Not long before he died, in the fall of 1983, Harold Johnson sat beside an old friend at a West Point Alumni Association officers meeting. He recounted that day and told his friend: "I count that as the greatest moral failure of my life. I should have resigned and fought the decision."'

RL> Keep in mind that an officer can always resign his commission, which has the effect of removing him from the coverage of the UCMJ and making him free to say whatever he wants about anybody. These guys elected to take their paychecks, retire, take their retirement pay and benefits, and then start talking to the press. Doesn't that strike you as vaguely disreputable?

As a general rule, yes the military should stay out of politcs, but these are special times imo. Our civilian leadership is straying from constitutional boundaries by insisting upon unconstitutional unitary powers for the chief executive and because of an unfortunate confluence of power by the Republican Party, not only is there no principled discussion of policy decisions, instead there is a supine acquience in policies that are bankrupting the country morally, ethically, financially and destroying our position as a world leader.

To not speak out when the ship of state is heading towards the breakers is the true unpatriotic act.

Finally, the point is that the dissent has been of a professional nature, not personal attacks. I hear nothing implying that Rumsfeld is a child molester, a drunkard, unfit for command, mentally unstable, or any other personal attack.

[ndebord]

Ralph,

RL> Keep in mind that an officer can always resign his commission, which has the effect of removing him from the coverage of the UCMJ and making him free to say whatever he wants about anybody. These guys elected to take their paychecks, retire, take their retirement pay and benefits, and then start talking to the press. Doesn't that strike you as vaguely disreputable?

Ah, so by this same reasoning, you could say that a whistleblower should forfit job, pension and retire into penury as a consequence of speaking out?

Please.

[ndebord]

Ralph,

R>> Eisenhower resigned his commission. He was therefore not a commissioned officer drawing retired pay and accordingly was not a person subject to the Uniform Code of Military Justice. See my note to Nick about that.

Yup. He resigned knowing full well that he would win the Presidency almost by acclamation. Let's see, 5 star general pension vs President of the United States pension. Both for life, not subject to coroporate nullificaiton. Sweet.

[Judy G. Russell]

the Congress certainly saw the possibility when it included retired officers in its prohibition..They included them in a restriction on CONTEMPTUOUS speech, not a restriction on POLITICAL speech. You seem to equate the two; fortunately the Manual for Courts Martial and every other authority does NOT.

[rlohmann]

Yup. He resigned knowing full well that he would win the Presidency almost by acclamation. Let's see, 5 star general pension vs President of the United States pension. Both for life, not subject to coroporate nullificaiton. Sweet. Your point being....

[ndebord]

Your point being....

Originally Posted by ndebord
Yup. He resigned knowing full well that he would win the Presidency almost by acclamation. Let's see, 5 star general pension vs President of the United States pension. Both for life, not subject to coroporate nullificaiton. Sweet.

The point is elementary....

He didn't need the pension and he was running for a higher office for which he was a shoe-in. Hence the resignation...unlike your run-of-the-mill General. I refer you to my earlier post in which I said:

ND>>>Ah, so by this same reasoning, you could say that a whistleblower should forfit job, pension and retire into penury as a consequence of speaking out?

Giving up your pension is an exercise best left to those who truly can afford it.

[earler]

However, his resignation wasn't necessary. It was done voluntarily.

-er

[ndebord]

Earle,

Interesting anecdote about Eisenhower. When I was a young man, or rather boy, I was invited to a republican conclave in Lansing, MI. As part of the perks, I got to shake hands with RMN and say a few words. Not the same as a round of golf, but went away distinctly unimpressed for vague reasons I could not articulate then. One of my mother's first cousins married a man named Drumwright who ended up as Ambassador to the General in Taiwan and so round about I asked about Nixon. They liked Ike! They did not like Nixon at all. But then this is essentially political manifestations of the old China Hands.

The point being that when I look back at Nixon, I am impressed by his audacity and appalled by his paranoia and willingess to be the "dark prince" of American politicians. Truly a Shakespearian tragedy in the flesh. Personal impressions were not a good judge of this, indeed I had no idea of the quality of the man, forgetting his fatal flaws of course.

We seem to have managed to return to center stage yet another flawed politician, this one from an old and illustrious family. GWB, not Rumsfeld, is really at the center of this controversy over the Iraq War. He is squarely in the cross hairs of those who dislike his policies, be they military or civilian.

This from Sidney Blumenthal over at Salon:

http://www.salon.com/opinion/blumenthal/2006/04/19/rumsfeld_bush/index_np.html

Clinging to Rumsfeld as generals lead an unprecedented revolt, Bush reveals his weakness and his disdain for the lessons of history.

[Karl Semper]

Judy,

They included them in a restriction on CONTEMPTUOUS speech, not a restriction on POLITICAL speech. You seem to equate the two; fortunately the Manual for Courts Martial and every other authority does NOT.

Seems to me that you are agreeing with Ralph except for the definition of "COMTEMPOUS" speech vs "POLITICAL", but I'm no lawyer...

Karl

[rlohmann]

Yup. He resigned knowing full well that he would win the Presidency almost by acclamation. Let's see, 5 star general pension vs President of the United States pension. Both for life, not subject to coroporate nullificaiton. Sweet. The point is elementary.... I understand that, but it's really somewhat beside the point we're hammering on here, which is whether military personnel, particularly officers, particularly retired officers, should be permitted to criticize their superiors in public. My point in referring to Eisenhower was that since he had resigned, his situation wasn't germane to the discussion.

He didn't need the pension and he was running for a higher office for which he was a shoe-in. Hence the resignation...unlike your run-of-the-mill General. I refer you to my earlier post in which I said:

ND>>>Ah, so by this same reasoning, you could say that a whistleblower should forfeit job, pension and retire into penury as a consequence of speaking out? All this is somewhat beside the point. If you go back over this thread, you'll see that it started with a news item, posted by you, about the generals' comments. It took its present turn when, in the discussion of attacking one's commanders, Judy interjected that retired officers didn't have commanders, and I explained that they were nonetheless subject to the UCMJ. It then developed into an somewhat convoluted discussion of whether that was actually the law, whether the Manual for Courts-Martial or a DoD Directive could restrict or vitiate it, and whether it was sound public policy. My remark about the generals' taking their retirement pay--the effect of which was to continue their subjection to military law even in retirement--was more in the nature of disparagement of the actions of the individuals than a comment on the policy issue.

[rlohmann]

An intriguingly broad statement. I'm somewhat familiar with the Manual for Courts-Martial, but I recall no discussion in it of a distinction between "political speech" and "contemptuous speech" beyond the exemption I mentioned early in this thread about private, non-public conversations.

Without knowing what "other authorities" have drawn the distinction, I find it difficult to address your peroration.

I think the jury can go home now.

:)

[ndebord]

Ralph,

You can dance around the issue of the generals speaking out by repeating arcane distinctions about whether or not retired military officers can legally speak out about the conduct of their civilian masters, but in so doing you fail to address WHY they did so. As General George S. Patton said: "You will never know what is going on unless you hear the whistle of the bullets"

You can train for war, practice endlessly, stay on high alert for years on end and never actually see combat and still you won't know what combat means. From Bush on down, these neo-con so-called conservatives and their bureaucratic allies in the main are chicken hawks and their recklessness with the nation's blood and treasury is why dissent has gone public, both civilian and military.

And in the end, your arguments fail to convince me of anything other than that you have a fine understanding of the minutia of law. Note I am not saying you have a correct understanding of it or of the larger issue at hand.

[rlohmann]

I'm sorry you feel that way.

[Lindsey]

whether military personnel, particularly officers, particularly retired officers, should be permitted to criticize their superiors in public.
If they're retired, what superiors do they have? And what non-retired officers have come up in this discussion?

And here's another question: If you think that retired military personnel should be condemned for criticizing the President and the Pentagon, then do you think they should also be criticized for voicing support for them?

My point in referring to Eisenhower was that since he had resigned, his situation wasn't germane to the discussion.
And I believe Nick's point was that Eisenhower made no significant sacrifice by forfeiting his pension, but retired military with no guarantee of a generous pension like that of the presidency would have to make a considerable sacrifice if they were required to forfeit their post-retirement military benefits in order to exercise their rights of free speech.

--Lindsey

[ndebord]

I'm sorry you feel that way.

Ralph,

That's it? Your final word? I certainly hope not!

Hurt feelings aside, I do not want you to retire from the field of battle, rather I would like you to address the larger issues implied and implicit in this conversation.

[Judy G. Russell]

I think it's more that Ralph's agreeing with ME, except that he includes critical political speech in contemptuous speech. It strikes me that no-one has criticized any of the generals, retired and otherwise, who are speaking out in favor of Rumsfeld and his policies...

[Judy G. Russell]

An intriguingly broad statement. I'm somewhat familiar with the Manual for Courts-Martial, but I recall no discussion in it of a distinction between "political speech" and "contemptuous speech" beyond the exemption I mentioned early in this thread about private, non-public conversations. You may be "somewhat familiar" with it -- I on the other hand cited it in an earlier message, noting that the Manual's "commentary to Article 88 provides: `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.'"

[rlohmann]

Nick---

It isn't a matter of hurt feelings. Rather, your comment suggested a degree of confusion about what the issues were, and it seemed pointless after so much discussion to go back and explain everything.

I do feel a need, however to ask about your reference to the "larger issues." If the question of whether retired officers are, or should be, prohibited from criticizing the civilian leadership isn't the "larger issue," what is?

[rlohmann]

I'm familiar with that passage, but it's largely a dead letter. For a discussion, including a section that specifically addresses "political discussion" (and concludes that it is indeed a dead letter) see the July, 1999, issue of the Army Lawyer,

http://www.jagcnet.army.mil/JAGCNETINTERNET/HOMEPAGES/AC/ARMYLAWYER.NSF/0/686b63c63699069485256e5b0054e11a/$FILE/Article%201.pdf

(If that doesn't work, the TinyURL version is

http://tinyurl.com/kynpt

(I'd intended to include this in the note I wrote yesterday, but concluded that it would be overkill.)

[rlohmann]

If they're retired, what superiors do they have? "Superiors" in this context is a shorthand for the language of Article 88, Uniform Code of Military Justice: "Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, [...] shall be punished as a court-martial may direct." Article 2 of the Code includes retired commissioned officers as individuals to whom the "punitive articles" of the Code apply.

And what non-retired officers have come up in this discussion? Only two. The one officer actually convicted of violating Article 88 participated in a political demonstration opposing Johnson and the Vietnam war. He was off duty and out of uniform, but the court-martial convicted him anyway.

And here's another question: If you think that retired military personnel should be condemned for criticizing the President and the Pentagon, then do you think they should also be criticized for voicing support for them? No, because there's no law against their doing so.

And I believe Nick's point was that Eisenhower made no significant sacrifice by forfeiting his pension, but retired military with no guarantee of a generous pension like that of the presidency would have to make a considerable sacrifice if they were required to forfeit their post-retirement military benefits in order to exercise their rights of free speech. Eisenhower is something of a red herring. He came up only in Judy's mention of his having run against Truman in 1952. I pointed out that Eisenhower had resigned his commission, which had the effect of removing him from the coverage of Article 2, and thus also of Article 88. This, in turn, removed him from the discussion, which dealt with retired officers.

You summarize Nick's point accurately (as I understood it), but he was addressing an offhand point I had made disparaging people who kept their mouths shut until they could draw retired pay, then started talking. Those who remain in jobs they consider indefensible are simply less admirable, in my view, than those who resign and possibly pay a financial penalty for doing so. That has nothing to do with the law or the public policy it implements.

[Lindsey]

"Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, [...] shall be punished as a court-martial may direct."
But like Judy, I don't see that criticism necessarily equates to contempt.

Only two. The one officer actually convicted of violating Article 88 participated in a political demonstration opposing Johnson and the Vietnam war.
Sorry, my question wasn't clear. I meant "What non-retired officers have been mentioned here in connection with criticism of the current administration?"

You summarize Nick's point accurately (as I understood it), but he was addressing an offhand point I had made disparaging people who kept their mouths shut until they could draw retired pay, then started talking. Those who remain in jobs they consider indefensible are simply less admirable, in my view, than those who resign and possibly pay a financial penalty for doing so. That has nothing to do with the law or the public policy it implements.
And when they choose to voice their criticisms has little to do with the validity of those criticisms, so whatever you think of the messenger (and I'm inclined to grant them a little more latitude than you apparently are), what is important here is the message itself.

--Lindsey

[ndebord]

Nick---

It isn't a matter of hurt feelings. Rather, your comment suggested a degree of confusion about what the issues were, and it seemed pointless after so much discussion to go back and explain everything.

I do feel a need, however to ask about your reference to the "larger issues." If the question of whether retired officers are, or should be, prohibited from criticizing the civilian leadership isn't the "larger issue," what is?

Ralph,

The confusion is on your part. The thread topic is "The Generals Speak Out" NOT are they legally allowed to speak out, a side issue on which we have spent a good deal of time and thought to answer your objections to their speaking out and an issue on which we have not found a consensus. The issue is the larger one, e.g., WHY they spoke out and why it is important, giving our current one party state, that someone with expertise does speak out on the larger issue.

[Judy G. Russell]

Actually, I think that article proves my point, and I'm absolutely DELIGHTED that you cite it.

The article makes it clear that: "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.'"

Thus, in the Howe case, which I first cited and you now raise, the court itself said (and this is quoted in the article you reference): "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." (Emphasis added.) The article continues: "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. Further, unless the official and personal capacities of the official are clearly severable, the courts will treat the offensive words as personally contemptuous."

So what are words "contemptuous on their face" which take them out of the scope of the political discussion defense? Your article offers the following:


When describing offensive language under this provision of law, Colonel Winthrop, in his seminal work Military Law and Precedents, offered as examples: "abusive epithets, denunciatory or contumelious expressions, [and] intemperate or malevolent comments . . . ." Subsequent Manual descriptions of the offense parroted Winthrop’s description. Additionally, although the legislative history is sparse on point, contemptuous 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."
In the Howe case, the officer used terms like "Fascist". In other prosecuted cases, the words used were, for example:


gay-loving
womanizing
draft-dodging
pot-smoking
lying draft dodger
adulterous liar
a disgrace to the whole damned country
a dirty politician, whose only interest is gaining power as a politician and safeguarding the wealth of Jews
about as fit for his job as an office boy
a loafer
a thief
a damned tyrant
a damned black republican abolitionist
a grafter
the laughing stock of Germany
a God damn fool
a crooked, lying hypocrite
the biggest gangster in the world next to Stalin
Deceiving Delano


HOWEVER, charges were NOT pressed against an officer who exhibited a bumper sticker that simply said "Impeach Nixon."

The distinction is obvious.

[ndebord]

But like Judy, I don't see that criticism necessarily equates to contempt.


Sorry, my question wasn't clear. I meant "What non-retired officers have been mentioned here in connection with criticism of the current administration?"


And when they choose to voice their criticisms has little to do with the validity of those criticisms, so whatever you think of the messenger (and I'm inclined to grant them a little more latitude than you apparently are), what is important here is the message itself.

--Lindsey

Lindsey,

Yes, the message itself and its effects on the body politic and the military.

The consequences of the Generals' Revolt (as some have labeled it) is filtering down to the lower ranks of officers.

"This is about the moral bankruptcy of general officers who lived through the Vietnam era yet refused to advise our civilian leadership properly," said one Army major in the Special Forces who has served two combat tours. "I can only hope that my generation does better someday."

http://www.nytimes.com/2006/04/23/washington/23military.html?ex=1303444800&en=e00c4da0b9bfd4c9&ei=5088&partner=rssnyt&emc=rss

[rlohmann]

The confusion is on your part. The thread topic is "The Generals Speak Out" NOT are they legally allowed to speak out It started out that way, but when Judy commented in a note on 15 April that they had, as Americans, a right to speak out, I pointed out that as a matter of law, they had no such right. The discussion drifted off in that direction.

The issue is the larger one, e.g., WHY they spoke out and why it is important, giving our current one party state, that someone with expertise does speak out on the larger issue. In other words, you are saying that the substance of what they're saying overrides the statute that says they can't say it.

I don't think it does. Your reference to a "larger issue" seems not to address the policy rationale I mentioned several times: a fear of man-on-horseback situations and the maintenance of good order and discipline.

You haven't convinced me that these issues are lesser in importance because you--and a lot of other people--don't like the way Rumsfeld is running the Defense Department.

If you--or the generals--doesn't like Rumsfeld, there are ballot boxes for your use in not voting for Bush, who is the stopping place for the buck.

There was no Secretary of Defense in 1942, but the Army wasn't doing so well that year. It's probably better that the generals of that era kept their mouths shut.

[rlohmann]

The article makes it clear that: "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.'"He's referring to private, non-public discussions. There's a lot of griping and complaining in the officers'-club bar every night, but they don't take it to the NYT. The difference between private and public criticism is not one you can disregard as unimportant.

Thus, in the Howe case, which I first cited and you now raise, the court itself said (and this is quoted in the article you reference): "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." (Emphasis added.) You emphasized the wrong word. The one you should have emphasized is "public."

The article continues: "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. Further, unless the official and personal capacities of the official are clearly severable, the courts will treat the offensive words as personally contemptuous." Seems to me that the court has little patience with disparaging language even in the absence of malign intent. How does this rebut my argument?

So what are words "contemptuous on their face" which take them out of the scope of the political discussion defense? Your article offers the following:

In the Howe case, the officer used terms like "Fascist". In other prosecuted cases, the words used were, for example:


gay-loving
womanizing
draft-dodging
pot-smoking
lying draft dodger
adulterous liar
a disgrace to the whole damned country
a dirty politician, whose only interest is gaining power as a politician and safeguarding the wealth of Jews
about as fit for his job as an office boy
a loafer
a thief
a damned tyrant
a damned black republican abolitionist
a grafter
the laughing stock of Germany
a God damn fool
a crooked, lying hypocrite
the biggest gangster in the world next to Stalin
Deceiving Delano

Are you suggesting that this list is exhaustive? (Actually, some of it--"black republican abolitionist" comes to mind--antedates the UCMJ by a few years, but that's OK.) Are you suggesting that since the word "incompetent" doesn't appear on that list, it's an epithet acceptable for use by individuals subject to the provisions of Article 88?

HOWEVER, charges were NOT pressed against an officer who exhibited a bumper sticker that simply said "Impeach Nixon." I hope that, in addition to not arguing that any word not on the list is permissible, you're also not trying to argue that merely because a given set of circumstances did not result in prosecution, the statute that proscribes the act is invalid.

I mentioned in my note to Lindsey the compelling interest the state has in keeping military officers, active or retired, out of the political arena. If you look at the issue in that context, I think you'd be hard-pressed to argue that the word "incompetent," spoken in public with respect to a civilian superior, is not truly an evil that the society needs to prevent.

[rlohmann]

I would hate to have the military folks, today, second-guessing the leadership, including the civilian leadership. I am gratified at your having attained this insight.

The route when you truly disagree with the political leader is, IMO, exactly what these generals are doing: get out of the active ranks and fight on in the political arena. There you go again. :)

<sigh>

The route when you truly disagree with the political leader is to resign your commission and then petition the Congress to repeal so much of Article 2 as applies to retired officers and then file an application to be reinstated as a commissioned officer.

[Judy G. Russell]

I know that YOU think you have to resign your commission. Fortunately, the people who write the Manual for Courts-Martial to guide prosecutors do NOT agree that a retiree (or even an active-duty officer) loses all rights to political speech, and it's those folks who are on the front lines in interpreting that statute. Sorry, pal. You're outranked on this one.

[Judy G. Russell]

The public-private distinction on which you hang your hat is misplaced. The article you cite makes it clear that even if the particular comment IS contemptuous, it is a defense that it occurred in the course of an entirely private discussion. The political discussion defense is an entirely separate defense that does not depend at all on whether the speech is public or private.

[ndebord]

Ralph,

ND>> The confusion is on your part. The thread topic is "The Generals Speak Out" NOT are they legally allowed to speak out

RL>> It started out that way, but when Judy commented in a note on 15 April that they had, as Americans, a right to speak out, I pointed out that as a matter of law, they had no such right. The discussion drifted off in that direction.

Regardless of how much the thread drifted, the original point is the overriding point under discussion here and the side issue is the legality of the generals speaking out. Since I do not agree with you that retired generals are forbidden to speak out, we seemingly have no common ground here to discuss the wider issue.

It's not just that Rumsfeld is doing a bad job of running the Defense Department, if it were only that, then a) the retired generals would not have been heard calling for Rumsfeld's resignation and b) we'd be arguing about relatively minor matters, just as transformatiion, cancelling Pentagon wish lists and the like, debated endlessly by Cable News experts, retired general grade officers all.

The only reason the retired generals spoke up was because they believe the Republic is heading for the breakers. These retired generals are pointing to the person they believe is directly responsible for this loss of blood, treasure and political standing. Your assertion that the legality of the protest is equally important to the conduct of the war is a dangerous sophism at worst or at best, a misdirection employed for the purposes of argumentation.

[rlohmann]

Since I do not agree with you that retired generals are forbidden to speak out, we seemingly have no common ground here to discuss the wider issue. I guess we don't. I've cited the statute that does forbid it, and if you don't agree that it says what it says, we truly have nothing more to discuss.

[rlohmann]

You might want to reread that law-review article. The context of "political speech" is private political speech.

You may not be aware that there is, on a daily basis, rampaging criticism among military officers of everybody from the battalion commander on up. Countless Tuesday-morning staff meetings often come very close to blows.

This has never been prosecuted for the very sound reason that a commander who doesn't listen to his subordinates' assessments is a fool.

Complaining in public is a different issue.

One thing that those who defend the generals (and their book contracts) seem to overlook is their own lack of expertise in matters military. What they also seem to overlook is that there are very good reasons, as I pointed out in another note, to restrain men with significant influence over other men with large numbers of guns and bombs from getting on their white horses.

In any event, fewer than a dozen retired generals, out of the thousands wandering around out there, have chosen to seek media mouthpieces to attack Rumsfeld. What do they know that you don't?

[Dan in Saint Louis]

In any event, fewer than a dozen retired generals, out of the thousands wandering around out there, have chosen to seek media mouthpieces to attack Rumsfeld. What do they know that you don't?

And fewer than THAT have sought media mouthpieces to SUPPORT him. What does that tell you?

[ndebord]

I guess we don't. I've cited the statute that does forbid it, and if you don't agree that it says what it says, we truly have nothing more to discuss.


Ralph,

I agree, we are at loggerheads if you will not address the larger issue at stake here, or even admit that there is a larger issue.

However, if you insist upon criminalizing the right of retired generals to speak out, that puts you in bed with the likes of Tony Blankley from the Rev. Sun Myung Moon's Washington Times who said on April 18th that perhaps the Bush Administration should bring sedition charges against active-duty military officers who collude with retired generals by contemplating future resignations in protest of Bush war policy?

Blankley said, "Can a series of lawful resignations turn into a mutiny? And if
they are agreed upon in advance, have the agreeing generals formed a felonious conspiracy to make a mutiny?"

[ndebord]

Ralph,

As I look at your points, a few items are worth revisiting.

RL>> In other words, you are saying that the substance of what they're saying overrides the statute that says they can't say it. I don't think it does. Your reference to a "larger issue" seems not to address the policy rationale I mentioned several times: a fear of man-on-horseback situations and the maintenance of good order and discipline.

Have you heard one general officer call for the replacement of the civilian leadership at the top by a military officer? The man-on-horseback is of course the fear that a Caesar will appear and destroy the Republic. Some might argue that the man who has crossed the Rubicon is not a military officer, but this President.

RL>> You haven't convinced me that these issues are lesser in importance because you--and a lot of other people--don't like the way Rumsfeld is running the Defense Department.

Lesser in importance? So you equate the issues importance, but you refuse to discuss what I have called the larger issue at all.

RL>> If you--or the generals--doesn't like Rumsfeld, there are ballot boxes for your use in not voting for Bush, who is the stopping place for the buck.

Vote for Bush...again? Ah, so you think the 22nd Amendment is invalid then and that I'll have a chance in the last 3 years of Bush's Presidency to vote against him and his policies.

[Lindsey]

Bush, who is the stopping place for the buck.
Shirley you jest!

(With a nod to Dwane Powell, Raleigh News & Observer, 24 March 2006)

--Lindsey

[Jeff]

Have you heard one general officer call for the replacement of the civilian leadership at the top by a military officer? The man-on-horseback is of course the fear that a Caesar will appear and destroy the Republic. Some might argue that the man who has crossed the Rubicon is not a military officer, but this President.

Nick, I had been thinking about Caesar and his Legions and the Rubicon and the Republic, but I had not thought about that. I wish I had because there is no doubt that what we have is destruction from within, not without.

- Jeff

[Lindsey]

Nick, I had been thinking about Caesar and his Legions and the Rubicon and the Republic, but I had not thought about that.
On a lighter note, I was just reading that Julius Caesar may have been the original source of the notorious "comb over":

The historian Suetonius writes about Julius Caesar:

He was embarrassed by his baldness, which was a frequent subject of jokes on the part of his opponents; so much so that he used to comb his straggling locks forward from the back, and of all honours heaped upon him by senate and people, the one he most appreciated was to be able to wear a wreath at all times.....

(http://www.roman-empire.net/republic/caesar.html)

--Lindsey

[rlohmann]

However, if you insist upon criminalizing the right of retired generals to speak out Nick, I don't "insist" on criminalizing anything. On 5 May 1950, President Truman, in accordance with Article I, Section 7, of the Constitution, approved the statutes enacted by the Congress and codified as the Uniform Code of Military Justice. At that time, the conduct became criminal.

Being not quite nine years old at the time, I had nothing to do with the criminalization process. :)

[rlohmann]

Are you now suggesting that we have a mass public referendum by all the retired general officers on the competence of the Secretary of Defense?

Surely you jest.

[rlohmann]

ROFL!

[Dan in Saint Louis]

Are you now suggesting that we have a mass public referendum by all the retired general officers on the competence of the Secretary of Defense? Surely you jest.

Not at all. You suggested that since only a few out of thousands had spoken out against Rummy that the mass must agree with him. I only pointed out that even fewer had spoken out in support, and so your conclusion was not valid. I suppose we could run a Student T test on it.....

[rlohmann]

I wasn't suggesting that those who kept their mouths shut must agree with him. It's quite possible that many of those who keep their mouths shut agree fully with the sentiments of those who hit the talk shows.

However, those who kept their mouths shut kept their mouths shut.

Because that's what American military officers do.

[Dan in Saint Louis]

I wasn't suggesting that those who kept their mouths shut must agree with him.

What you said was:In any event, fewer than a dozen retired generals, out of the thousands wandering around out there, have chosen to seek media mouthpieces to attack Rumsfeld.

I read that that to imply that since "fewer than a dozen" had objected in the media they must be an insignificant sample not fairly representing the "thousands". I am saying that is an invalid conclusion since even fewer than THAT had SUPPORTED Rummy in the media.

If you believe that "fewer than a dozen" objectors don't have any meaning, then fewer than THAT have even LESS meaning.

[rlohmann]

I'm not sure I understand that. :confused: