Rumsfeld's Revenge: How the Retired Generals Who Have Called for His Resignation Could Be Court-Martialed, and Why They Won't Be

By DEAN FALVY

Wednesday, May. 03, 2006

A few days after Army Maj. Gen. John Batiste, former commander of the 1st Infantry Division in Iraq, became the sixth retired general to call for his resignation, Secretary of Defense Donald Rumsfeld was still displaying his customary insouciance.

"The fact that two or three or four retired people have different views, I respect their views," Rumsfeld told Al-Arabiya television, showing the same gift for numerical underestimation that has arguably led the U.S. to grief in Iraq . "But obviously if, out of thousands and thousands of admirals and generals, if every time two or three people disagreed we changed the secretary of defense of the United States, it would be like a merry-go-round."

But despite his outward calm, it was no day at the amusement park for the Secretary of Defense - long-criticized, he now faced intense fire from a new and devastating quarter.

Are the generals right? Is it time for Donald Rumsfeld to go? Or are the generals stepping over the line themselves by undermining civilian control of the military? If so, is there anything Donald Rumsfeld can do about it?

Rumsfeld's Downward Trajectory

Rumsfeld once dazzled public and press alike with his steely confidence and clipped cadences in the months after the 9/11 attacks. But ever since the illusory "Mission Accomplished" moment in 2003, his popularity has steadily plunged. Yet even in the face of the continuing carnage in Iraq and the devastating revelations of prisoner abuse at Abu Ghraib and elsewhere, Rumsfeld has held on to his job. As long as he retained the strong support of his boss, Rumsfeld seemed to have little to fear from his critics. That is, until the generals joined in.

Suddenly, Rumsfeld was under attack from the one institution that he couldn't afford to alienate: the military itself. Nothing could be better calculated to drive a wedge between Rumsfeld and the Bush Administration's remaining bastions of conservative support than the damning assessments of the generals who had served under him and tried to make his strategy work.

Unlike other critics', the generals' patriotism and courage could not be impugned. And because they did not focus on the wisdom of going to war in Iraq, but mostly took issue with the way that war has been fought, they could not be dismissed as ineffectual pacifists.

A Problem for Rumsfeld: Knowledgeable Critics' Harsh Evaluations

Nor were the six generals just a few random voices out of "thousands and thousands," as Rumsfeld tried to suggest. Whether they represented only themselves, or spoke for many others still in uniform (as former U.N. ambassador Richard Holbrooke has argued in the Washington Post), these generals clearly had the credentials to know what was going on in Iraq.

Marine Gen. Anthony Zinni formerly served as the chief of U.S. Central Command, the same position held by Gen. Norman Schwarzkopf and Gen. Tommy Franks. Marine Lt. Gen. Greg Newbold was director of operations for the Joint Chiefs of Staff during the planning of the Iraq campaign. Army Maj. Gen. Paul Eaton was in charge of Iraqi security forces until 2004. Gen. Batiste and Maj. Gen. Charles Swannack commanded ground divisions in Iraq. Lt . Gen. John Riggs was the former head of the Objective Force Task Force.

Though they had all spent their adult lives in an institution built on respect for superior authority, the generals did not mince any words in ripping their former boss: "We also served under a secretary of defense who didn't understand leadership, who was abusive, who was arrogant, who didn't build a strong team," charged Gen. Batiste.

Gen. Newbold claimed 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."

Gen. Eaton said of Rumsfeld: "He has shown himself incompetent strategically, operationally and tactically, and is far more than anyone responsible for what has happened to our important mission in Iraq. ... Mr. Rumsfeld must step down.''

Article 88: Did the Generals Violate Military Law with Their Criticisms?

Not surprisingly, military institutions do not look kindly upon public criticism of superiors in the chain of command. This position is amply reflected in the U.S. Uniform Code of Military Justice ("UCMJ"), which, though enacted by Congress, reflects the long-standing values of the American military establishment.

Criticism of the president or the secretary of defense by a commissioned officer falls under Art. 88 of the UCMJ, which states that:

Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

The first issue to address is whether the criticism in question constitutes "contemptuous words". There may be room under Art. 88 for military officers to express reasoned disagreement with civilian officials, particularly in areas unrelated to military service (a letter to the editor taking issue with the president's proposals on Social Security , for example, might not raise many eyebrows). However, in the case of the six generals, their criticism is both germane to military command and at times very sharply expressed. And the truth of the "contemptuous words," incidentally, is no defense to this charge.

The History of Article 88: Differentiating Between Commissioned Officers and Others

Art. 88 was enacted in its current form in 1950, and introduced the distinction between commissioned officers and other personnel with respect to criticism of civilian authorities. Previous codes had also made non-commissioned officers and enlisted personnel subject to court-martial for such criticism. Indeed, during the Civil War and both World Wars, there were numerous court-martials of enlisted personnel for disparaging presidential leadership, even in casual, private correspondence.

As I discussed in a 2003 column for this site, Congress in 1950 must have felt such court-martials were excessive, particularly in a largely conscripted force. Art. 88 recognized that the normal grumbling of low-ranking personnel was not a sufficient threat to military or civil order to justify such a drastic curtailment of their political rights.

However, in extreme circumstances, enlisted personnel could theoretically be court-martialed for expressing contempt for civil authority under Art. 134 of the UCMJ. This "General Article" allows a court-martial for "all disorders and neglects to the prejudice of good order and discipline in the armed forces [and] all conduct of a nature to bring discredit upon the armed forces."

There is no modern precedent for such a court-martial, however. (It should be noted that there has been only one post-1950 court-martial under Art. 88, period--of a lieutenant who joined a domestic protestagainst the Vietnam War.)

Does Article 88 Apply to Retired Officers as Well As Active Ones?

While the situation for enlisted personnel under the UCMJ thus remains slightly murky, the situation for commissioned officers on active duty is clear as crystal: If you call the secretary of defense "incompetent" on national television, you may be saluted for your bravery, but you'd still better start shopping for some civilian clothes.

But what about retired officers? Don't they simply become private citizens again, finally free to enjoy the First Amendment rights they fought to protect for the rest of us?

Strangely, the answer may be no -- at least if they want to collect their pensions while exercising those rights.

According to Art. 2(a)(4) and (5), the UCMJ continues to apply to:

(4) Retired members of a regular component of the armed forces who are entitled to pay; [and]

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

So if any of the retired personnel criticizing Donald Rumsfeld are still relying on him for a paycheck, the secretary has at least a theoretical avenue for revenge.

Motive? Check. Means? Check. Opportunity? Probably not.

Why the Secretary's Avenue for Revenge Very Probably Will Remain Theoretical

Although the UCMJ theoretically applies to retired personnel drawing pay, a prosecution of a retiree for violating Art. 88 would be virtually unprecedented.

Indeed, according to Lt. Col. Michael J. Davidson's article "Contemptuous Speech Against the President" (The Army Lawyer, July 1999), a charge against a retiree could not be brought in the absence of "extraordinary circumstances" and requires prior approval from the Criminal Law Division of the Office of the Judge Advocate General.

Davidson further noted there has been only one known court-martial of a military retiree under Art. 88 or its pre-1950 predecessors. In 1918, a retired army musician was tried for criticizing President Wilson, but acquitted. In 1942, a retired colonel was charged with giving "a speech impugning the loyalty of President Roosevelt" but the charges were dropped. Since then, there have been no known attempts to court-martial retired personnel for such criticism, though it has been abundant at times.

Even if a conviction could be obtained, the result would still need to be squared with the Constitution. The last serious attempt to try a retiree for political speech in 1918 came at the very dawn of the Supreme Court's modern First Amendment jurisprudence. Even then, the retired musician's acquittal meant that the Federal courts were never called upon to judge whether his free speech rights could be so dramatically curtailed. The judiciary has subsequently upheld restrictions on the rights of active duty personnel as necessary to avoid a "clear and present danger to discipline within our Armed Forces" (U.S. v. Howe, 37 C.M.R. 429, 438 (1967)). But it would be much harder to prove that retired officers pose such a danger, or that this danger would somehow go away if they simply renounced their retirement checks.

From a political perspective, it is almost inconceivable that charges will be brought against the retired generals. If nothing else, a court-martial would ensure that their charges remain in the limelight, while the chances of making a conviction stick would be questionable. The risks to the Bush Administration in making a test case out of such high-profile generals would be staggering. For a weakened Secretary of Defense with plenty of other things to worry about, making martyrs out of his critics would not be the wisest strategy.

Officers' Criticisms May Pose a Genuine Threat - But Not After They Retire

Rumsfeld and his defenders did hit a nerve when they note how impossible it would be to govern the military if a civilian leader could be ousted simply for failing to keep the generals happy. But their point applies far more strongly to active duty officers than to retirees.

The policy underlying Art. 88 and its predecessors is clearly to enforce the subordination of the military to civil authorities. The Founding Fathers, steeped in as they were in Greek and Roman history, knew very well that most republics eventually succumbed to military despotism. In many countries, the political speech of military officers still carries the unspoken menace of a coup d'état. Even in the United States, where civilian rule is well entrenched, the military is a powerful and respected institution which can create great difficulty for elected officials if left unchecked.

So it is for good reason that military officers must often keep their views under wraps while they wear their country's uniform. Once they retire, however, they should not have to choose between their pensions and their politics.

Retired officers do not pose a comparable threat to civilian authority. They are no longer in a position to back their words with guns, or to disrupt the lawful chain of command in the event of a crisis. To the extent they can influence their former colleagues still on active duty, they will do so behind the scenes regardless of whether they can speak publicly. And we are better off allowing retired officers to participate in open public debate than forcing them to engage in intrigues in order to sway government policy.

Why It's Best to Let Retired Officers Speak Their Minds

The positive case for allowing retired military personnel to publicly criticize their former superiors is also very strong. They may have information that is essential to the debate on a matter of vital national interest, like the management of the war in Iraq. Particularly when the civil authorities defend their actions by insisting that they have followed military advice in every respect, retired officers are the only ones in a position to verify or dispute such claims. To amplify supportive views, while gagging the dissenters, can only result in a misinformed or deceived public.

Moreover, former military officers have always been a great source of talent for the democratic process. At least 30 of our 43 presidents have claimed some record of military service. Most of those served as officers; ten, as generals. Few retired officers would dare enter politics--on the right or the left--if their honestly expressed views on foreign or military policy could be subject to court-martial under Art. 88.

In extreme cases, a retired military leader with great charisma can pose some danger to civil authority. At least twice in our history, presidents have been seriously challenged by cashiered generals. After being dismissed by President Abraham Lincoln as the head of the Union Army, Gen. George B. McClellan ran against him as the Democratic nominee in 1864. Riding a wave of Union victories, Lincoln overcame the challenge of the "Young Napoleon."

In 1951, President Harry S. Truman (a former artillery captain) risked massive unpopularity by dismissing five-star General Douglas MacArthur as commander in Korea for insubordination. MacArthur returned to ticker-tape parades and a rapturous reception before a joint session of Congress, where he denounced Truman's attempts to limit the Korean War as "appeasement" of the Communist enemy. No more direct challenge to civil authority could be imagined, short of armed mutiny. Truman weathered the storm, however, and MacArthur faded away as a political force before the next election.

In both cases, the entry of these former generals into public debate resulted in neither a coup d'état nor a court martial. Rather, after much sound and fury, their charges were settled through the democratic process. That's the way it should be.


Dean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law.

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