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."
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.
This is pretty shocking stuff. It means a lieutenant could get court-martialed for e-mailing all of his friends a newspaper or magazine story that's contemptuous of Rumsfeld. The six retired generals didn't merely give "broad circulation" to such stories. They wrote the stories, or gave on-the-record interviews to those who did, in publications with extremely broad circulation.
If Rumsfeld wanted to take this law literally and crack down, how could he go about it? Article 22, Section (a) states that a court-martial may be convened by, among others, the president, the secretary of defense, the "secretary concerned" (i.e., the official who's been the object of contempt), or any commanding officer designated by the secretary concerned or by the president. So, Secretary Rumsfeld or President Bush could set up a court-martial, or either of them could get a loyal henchman to do the dirty work. If the generals were found guilty, the maximum penalty under Article 88 is "dismissal, forfeiture of all pay and allowances, and confinement for one year."
Now, before Secretary Rumsfeld and his small circle of friends start salivating, they should consider two things. First and most obvious, trying to court-martial these six generals would be stupid beyond all measure. Very few officers —and, as far as I can tell, no retired officers—have ever been prosecuted under Article 88. I'm hardly suggesting that Rumsfeld break precedent; nor am I predicting that he might. But if he wanted to interpret the law literally— as the Justice Department does when it prosecutes someone under the federal espionage statute for receiving classified information—this would let him bring down the hammer.
But second, Rumsfeld should take a closer look at Article 88. In fact, all officers, active and retired, should take a look. In its commentary on that article, the Manual for Courts-Martial notes:
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.
In other words, if officers (active or retired) merely criticize Rumsfeld, even emphatically, they are not violating military law, as long as they avoid "contemptuous" words. (I guess this means you should preface your remarks by saying, "With all due respect, sir … ") So, it turns out that military law—which actually protects most critical speech—may not be why active-duty officers won't harsh on Rumsfeld. They refrain from criticism of any sort not because they fear court-martial, but because they know their careers will hit a brick wall. They'll never be promoted; they'll probably be transferred to the Arctic Circle.
The open question is: What is the legal meaning of "contemptuous"? Article 88 offers no definition. Neither does the commentary in the Manual for Courts-Martial. The only guidance that the Defense Department's public-affairs office could come up with was this definition from The Military Judges' Benchbook, paragraph 3-12-1d:
"Contemptuous" means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.
This sounds more like an 18th-century guide on gentlemen's etiquette than a modern-day casebook on military law. But if it is a crime, punishable by court-martial, to disdain Donald Rumsfeld, he could lock up half the Army officer corps.