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."

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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.

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