Tuesday, May 17, 2011

The Generals, Donald Rumsfeld, and the High Cost of Free Speech

By Nicholas Stix

May 20, 2006

Part I: Seven Days in May: Rumsfeld and the Generals

Regulated Speech

Commissioned military officers do not have the right or the privilege of criticizing their civilian bosses.

That may come as a shock to most Americans under the age of fifty, relatively few of whom have served in the military, and most of whose teachers and professors have refused to teach them any military history, much less military law. But Article 88 of the Uniform Code of Military Justice (UCMJ) decrees,

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 Homeland Security, 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.

A court-martial is a trial in a military court. A guilty verdict on charges of violating Article 88 could result in a stripping of one’s rank, the revocation of one’s pension and other retiree benefits, and even a prison sentence.

Indeed, no fewer than four commissioned officers – two Air Force generals and two Marine Corps officers – were punished for violating Article 88 in statements they made during the 1990s against President Clinton. One of the generals variously called Pres. Clinton “gay-loving,” “womanizing,” “draft-dodging” and “pot-smoking.”

Although Article 88 was enacted in 1950, it is a revised version of a regulation that has governed the Army since 1764, in colonial times.

Defense Secretary Rumsfeld and Pres. Bush’s critics, who had no problem with the punishment of Pres. Clinton’s military critics, have all suddenly developed amnesia, both about those earlier cases, and about military law.

In 1999, Lieutenant Colonel Michael J. Davidson, then the Chief for Administrative & Contract Law of the Office of the Staff Judge Advocate, Third U.S. Army/U.S. Army Forces Central Command wrote, “The Military Judges’ Benchbook posits that contemptuous ‘means insulting, rude, disdainful or otherwise disrespectfully attributing to another qualities of meanness, disreputableness, or worthlessness.’”

As in calling someone “arrogant” and “abusive” (retired Army Maj. Gen. John Batiste about Secretary Rumsfeld) or “incompetent” (retired Marine Corps Lt. Gen. Gregory Newbold, also about the Secretary).

Generals Batiste and Newbold are two of the eight retired generals who have publicly criticized President Bush. The others are Army Major General (two stars) Paul Eaton, Maj. Gen. John Riggs, and Maj. Gen. Charles H. Swannack Jr.; and Marine Corps Lieutenant General (three stars) Paul van Riper, General (four stars) Anthony Zinni; and finally, Army Gen. Wesley (not to be confused with Ramsey) Clark.

Col. Davidson explains further that although no retired officer has ever been brought up on charges of violating Article 88, according to the UCMJ, even being retired fails to protect a commissioned officer from the military law’s strictures.

In other words, commissioned military officers do not enjoy the First Amendment rights that the rest of us take for granted.

The Unfairness of Life

But many readers will complain, “That’s unfair!” Indeed, it is. But as President John F. Kennedy famously observed, “Life is unfair.” Our men in the combat arms bear a greater responsibility than do ink-stained kvetches like me, a responsibility that unfortunately is not counterbalanced by greater liberty.

Thus have those who have ignored military law, while implicitly promoting the notion that the generals have a First Amendment right to attack the Administration, caused as much grief as the generals themselves.

And so, PENUSA was not helping matters when it supported retired Army Maj. Gen. John Riggs last year, after Riggs criticized the Administration, and ended up busted a rank and cashiered.

PENUSA is part of PEN, a leftwing organization that supports freedom of expression for writers around the world, and has to my knowledge been evenhanded in supporting writers muzzled by dictators of the Left and the Right alike. But John Riggs wasn’t a writer being suppressed by a dictator; he was an active duty soldier violating military law. The folks at PENUSA really need to consult those rules before protesting. By contrast, the Baltimore Sun’s Tom Bowman had to know what he was doing when he first interviewed and quoted Gen. Riggs, and when after the latter’s cashiering, Bowman defended him without mentioning Article 88. “Staff military mischief-maker” might be a better title for Bowman than staff military reporter.

We Don’t Need No Steenkin’ Laws

The worst offender of all has so far been Richard Holbrooke, who served for a time as Bill Clinton’s ambassador to the UN. Holbrooke’s fans have always told of how brilliant he is, but such encomiums were belied by an April 16 Washington Post op-ed, “Behind the Military Revolt,” in which Holbrooke combined New York Times-style “Rumsfeld Must Go” boilerplate with the claim that many generals, retired and active-duty alike, have among themselves created a movement against Rumsfeld, and therefore … Rumsfeld Must Go. (Holbrooke has a monthly gig at the Post.)

Holbrooke opens,

The calls by a growing number of recently retired generals for the resignation of Defense Secretary Donald Rumsfeld have created the most serious public confrontation between the military and an administration since President Harry S. Truman fired Gen. Douglas MacArthur in 1951. In that epic drama, Truman was unquestionably correct -- MacArthur, the commanding general in Korea and a towering World War II hero, publicly challenged Truman’s authority and had to be removed. Most Americans rightly revere the principle that was at stake: civilian control over the military. But this situation is quite different.

The only distinction Holbrooke provides between the MacArthur-Truman and Rumsfeld-generals debacles, is that today more than one general is guilty of insubordination. Otherwise, I have to surmise that Holbrooke only thinks Truman was right, because he was a Democrat.

Rumsfeld’s famous “long screwdriver,” with which he sometimes micromanages policy, now thwarts the top-to-bottom reexamination of strategy that is absolutely essential in both war zones.

The foregoing paragraph stands the truth on its head. The generals attacking Rumsfeld don’t resent him because he has stood in the way of a re-examination of strategy; rather, they hate him because he did re-examine strategy.

In the tight world of senior active and retired generals, there is constant private dialogue.

… it is also clear that the target is not just Rumsfeld. Newbold hints at this; others are more explicit in private.
[Holbrooke is saying here that he has spoken privately with generals attacking the President and Vice President]. But the only two people in the government higher than the secretary of defense are the president and vice president. They cannot be fired, of course, and the unspoken military code normally precludes direct public attacks on the commander in chief when troops are under fire. (There are exceptions to this rule, of course … [Holbrooke cites generals McClellan and Singlaub] But such challenges are rare enough to be memorable, and none of these solo rebellions metastasized into a group, a movement that can fairly be described as a revolt.)

“Memorable” is not quite the word I would use.

Holbrooke makes four points – one explicit, and three implicit. His explicit point is that the rule against publicly attacking the commander-in-chief is an informal thing. His implicit points are that it is normal and acceptable for flag officers [generals and admirals] to privately condemn the Secretary of Defense and the President and Vice President; that it is normal and acceptable for generals to organize politically in opposition to their civilian superiors, if they so wish; and that flag officers have a veto right over defense secretaries, and since (he claims) many retired and active-duty flag officers have organized against the Administration, the President must yield to their will, and fire Defense Secretary Rumsfeld.

First of all, generals may not organize politically. Not even retired generals, but certainly not active-duty flag officers. As Washington Times editor-columnist Tony Blankley pointed out, the UCMJ has two laws covering such organizing among commissioned officers: Article 134 regarding all non-capital “disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces …” (“non-capital” means that violating the article may not cost the violator his life) and Article 94 regarding “mutinous sedition,” which is a capital offense (i.e., violating the article may cost the violator his life).

The UCMJ states,

A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct.

The rule about not attacking the President is hardly informal; as I showed above, it is codified in military law as Article 88, applies equally to attacks against the Secretary of Defense, and covers private expressions of contempt, as well.

Holbrooke’s implicit position that flag officers have a veto right over defense secretaries, and thus that President Bush must yield before the will of mutinous, seditious generals, violates the bedrock constitutional principle of civilian control of the armed forces. If flag officers were granted a veto right over secretaries of defense, they would next demand such a right over presidents. We would then find ourselves under a military dictatorship, be it formal or de facto.

Had Republican politicians supported Gen. MacArthur against Pres. Truman, the Republic would have suffered a constitutional crisis. Richard Holbrooke seeks to help provoke just such a crisis today.

The proper response by a commander-in-chief to a mutiny among flag officers, is not to sacrifice his secretary of defense to appease their appetite for power. Rather, one sets up wiretaps on all telephones used by or called by suspects; keeps all suspects under surveillance; and when one is ready to strike, executes search warrants on all of their properties and offices, and arrests them all. Then, one gives them a fair trial, afterwards executing or sentencing them to life in prison.

That’s assuming, of course, that Holbrooke isn’t lying about his general friends, and trying to bluff Bush into cashiering Rumsfeld. Holbrooke is apparently capable of anything. As his fans will tell you, he’s a brilliant man.

What Richard Holbrooke has done is tear up the U.S. Constitution and the UCMJ, for the sake of his political party’s short-term, expedient advantage. For such seditious behavior, he deserves to be named to the editorial board of the New York Times.

I don’t know what is worse; that the Washington Post published an op-ed in favor of mutinous sedition, or that it published a piece of propaganda that so misrepresented military law and the Constitution.

The movement in support of the eight generals has been motivated by rank opportunism. The generals’ supporters have refrained from mentioning what happened to Bill Clinton’s military officer critics. Apparently, the generals’ supporters think that they can turn the top levels of the officer corps into a political sniper unit for use against Republican presidents, but then shut it down again, once a Democrat gets elected. Such a strategy is bound to misfire, in leading to attacks on Democrat presidents, as well, while corrupting the senior officers’ corps, hurting morale in the ranks, and leading to military law being held in contempt and becoming even more a matter of expediency in practice than it already is.

The Dictatorship of Civilian Rule

It apparently hasn’t occurred to the old warhorses attacking Secretary Rumsfeld that they are suggesting that civilian authority is the problem, and that the generals should be in charge. Historically, according to the Hollywood Left’s paranoid style of American politics, that threat has always been posed by the Right, which seeks to engineer coupes d’etat against liberal Democrat presidents. But when is the last time the Hollywood Left got anything right?

That threat, imagined in movies like Dr. Strangelove, Seven Days in May, and Fail Safe, interestingly all released in 1964, existed only in the fevered minds of Lefties who were reacting with license and vengefulness to their new-found freedom, following the recent ending of the Hollywood blacklist.

The Separation of Military and State

Unlike the fictional constitutional principle of separation of church and state, one of the pillars of the American system is that civilians rule the military, not the other way around. The other way around, is called a military dictatorship. That’s what the Hollywood Left warned us about for forty-odd years. But now, with some military tired of civilian rule under Republicans, the Left has forgotten its “principles” and its warnings.

In the John Frankenheimer/Rod Serling 1964 political thriller, Seven Days in May, a group of five flag officers led by fascist Air Force Gen. “James Matoon Scott” (Burt Lancaster) who are opposed to a nuclear disarmament treaty with the Soviets which they believe jeopardizes America’s security, signed by liberal President “Jordan Lyman” (Fredric March), whom they consider a weakling, conspire to seize power in a coupe d’etat using the media.

The conspiracy is uncovered by Marine Corps Col. “Martin ‘Jiggs’ Casey” (Kirk Douglas), who goes to Pres. Lyman with his suspicions. Any real-life senior officer today engaging in or contemplating sedition would do well to carefully consider the fictional Col. Casey’s words.

President Jordan Lyman: I know what Scott’s attitude on the treaty is, what’s yours?

Colonel Martin “Jiggs” Casey: I agree with General Scott, sir. I think we’re being played for suckers. I think it’s really your business. Yours and the Senate. You did it, and they agreed so, well, I don’t see how we in the military can question it. I mean we can question it, but we can’t fight it. We shouldn’t, anyway.

President Jordan Lyman: Jiggs, isn’t it? Isn’t that what they call you?

Colonel Martin “Jiggs” Casey: Yes, sir.

President Jordan Lyman: So you, ah, you stand by the Constitution, Jiggs?

Colonel Martin “Jiggs” Casey: I never thought of it just like that, Mr. President, but, well, that’s what we got and I guess it’s worked pretty well so far. I sure don’t want to be the one to say we ought to change it.

President Jordan Lyman: Neither do I.

Where do today’s real-life generals stand?

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