Could Rumsfeld court-martial the retired generals?

Military analysis.
April 26 2006 2:59 PM

Could Rumsfeld Court-Martial the Retired Generals?

Surprisingly, yes.

Donald Rumsfeld has a notorious vindictive streak. How low will he stoop to pursue it? Let's put him to the test. If he wanted to get really brutal, Rumsfeld could convene a court-martial and prosecute the six retired generals who have been calling for his head. Military law, if read literally, permits him to do this. So, will he?

One of the assumptions surrounding the recent criticism of Rumsfeld is that the retired generals, unlike active-duty officers, are free to criticize the defense secretary without fear of reprisal. Surprisingly, this assumption is untrue. Under the Uniform Code of Military Justice, one of the many activities deemed punishable by court-martial is "contempt toward officials." This code of laws applies not just to active-duty officers but to retired ones, too. It's right there in Article 2, Section (a) (5): Persons subject to the UCMJ include "retired members of a regular component of the armed forces who are entitled to pay."

Advertisement

The key phrase is "entitled to pay." If you resign from the military, and thus give up all retirement pay and benefits, you're free from the clutches of military law. But if you retire and thus keep getting paid 50 percent to 75 percent of your peak active-duty salary (plus cost-of-living adjustments pegged to the consumer price index), you're still in the cage. (Many retirees learned this the hard way, when they were called back into service in Iraq.)

If Rumsfeld wanted to stick it to the retired generals who are daring to question his wisdom—Anthony Zinni, Greg Newbold, Paul Eaton, Charles Swannack, John Batiste, and John Riggs—he could invoke Article 88 of the military justice code, which reads:

Any commissioned officer [and, under Article 2, this includes any retired officer] who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation [!], or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present, shall be punished as a court-martial may direct. [Italics and exclamation mark added.]

The military's Manual for Courts-Martial, the implementing document for the UCMJ, could be read as strengthening Rumsfeld's case against his critics, in two ways. First, in its elaboration of Article 88, the manual states:

It is immaterial whether the [contemptuous] words are used against the official in an official or private capacity.

In short, it's no defense for a retired general to say, "I'm just speaking as a private citizen."

Second, the manual notes:

Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article … aggravates the offense. The truth or falsity of the statements is immaterial.

TODAY IN SLATE

Altered State

The Plight of the Pre-Legalization Marijuana Offender

What should happen to weed users and dealers busted before the stuff was legal?

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Food

How to Order Chinese Food

First, stop thinking of it as “Chinese food.”

How the First Benghazi Committee Hearing Humbled the Hillary Clinton State Department

You Shouldn’t Spank Anyone but Your Consensual Sex Partner

Moneybox
Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Jurisprudence
Sept. 18 2014 10:42 AM Scalia’s Liberal Streak The conservative justice’s most brilliant—and surprisingly progressive—moments on the bench.
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Outward
Sept. 18 2014 11:25 AM Gays on TV: From National Freakout to Modern Family Fun
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Television
Sept. 18 2014 8:53 AM The Other Huxtable Effect Thirty years ago, The Cosby Show gave us one of TV’s great feminists.
  Technology
Future Tense
Sept. 18 2014 10:07 AM “The Day It All Ended” A short story from Hieroglyph, a new science fiction anthology.
  Health & Science
Bad Astronomy
Sept. 18 2014 7:30 AM Red and Green Ghosts Haunt the Stormy Night
  Sports
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?