Military Law on “Contemptuous Words” Should be Reformed
- 5 days ago
- 5 min read
Originally published by JustSecurity here
Now in its second year, the Trump administration continues to set new records for legal controversy, much of which surrounds the president. Controversy has also swirled around Pete Hegseth, the Secretary of Defense, and Kristi Noem, who was recently fired as Secretary of Homeland Security. The three have something in common: they are all among those official positions that are protected by Article 88 of the Uniform Code of Military Justice against contemptuous statements by members of the military.
Article 88: A Primer
Article 88 is one of the punitive provisions of the UCMJ that create military crimes. The article states:
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, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
Under the Manual for Courts-Martial, violations of Article 88 are punishable by dismissal (the officers’ equivalent to a dishonorable discharge for enlisted personnel), forfeiture of all pay and allowances, and confinement for a year. The Manualexplains that officers can be prosecuted for their speech if “the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.” In addition, the Manual explains:
It is immaterial whether the words are used against the official in an official or private capacity. 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. Similarly, expressions of opinion made in a purely private conversation should not ordinarily be charged. Giving broad circulation to a written publication containing contemptuous words of the kind made punishable by this article, or the utterance of contemptuous words of this kind in the presence of military subordinates, aggravates the offense. The truth or falsity of the statements is immaterial.
Nearly all of the punitive articles apply to any person – officer or enlisted – who is subject to the UCMJ. Article 88, in contrast, applies only to commissioned officers; as with “conduct unbecoming” (Art. 133), enlisted personnel are beyond its reach. Ever since the “Don’t Give Up the Ship” video that made Sen. Mark Kelly a Hegseth target, it is now more commonly known that the UCMJ even applies to retired regular officers who, like him, are entitled to retired pay. Assuming those provisions are constitutional (a question the Supreme Court has never directly ruled on), this means that Article 88 could be applied to the well over 100,000 retired commissioned officers as well as the over 200,000 commissioned officers who are currently on active duty.
The Retired Officer Conundrum: Article 88 v. The First Amendment
Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:
Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” not the other way around!
Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.
On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.
On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten ‘obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers” (emphasis in original).
Experience teaches that retired officers—unless they happen to hold some other official position (like Sen. Kelly)— have limited impact on their successors, on those who hold elective or other high office in the political branches, or even on the general public. Surprisingly few such officers have spoken publicly about the litany of questionable (or worse) actions taken by the federal government since last year. Some of that silence is a reflection of deep cultural norms within the officer corps; much of that silence stems from concern about being drawn into a court-martial. In Judge Leon’s words, “That is a troubling development in a free country!”
Whatever one might think about the free speech rights of active duty commissioned officers, we agree with Judge Leon that it seems unjustified to stifle the speech of retired officers.
Abandonment of Office: The “They Asked For It” Defense
Finally, there is the military law doctrine of “the unprotected victim” (also referred to as “abandonment of office” or “divestiture of office”). It holds that a military superior who engages in serious misconduct is denied the normal protection against assault or disrespect prohibited by Article 89 of the UCMJ. Such a superior has, in effect, abandoned his office.
A superior commissioned officer whose conduct in relation to the accused under all the circumstances departs substantially from the required standards appropriate to that officer’s rank or position under similar circumstances loses the protection of this article. That accused may not be convicted of being disrespectful to the officer who has so lost the entitlement to respect protected by Article 89.
Could this doctrine also apply to Article 88? It’s a fair question and, in a democratic society committed to civilian control of the military, it is not that hard to imagine cases where a senior official might so plainly depart from settled norms of conduct as to warrant its application. For example, suppose the Secretary of Defense took it upon himself to repeatedly and publicly vilify a junior officer. Should the law afford that junior officer a defense when she responds in kind? If Congress were to pass a bill improperly singling out a particular member of the armed forces for censure or loss of pay or some other benefit, must that individual remain silent or respond only in kid-glove measured tones?
The current administration is not likely to amend the Manual to end Article 88’s application to retired officers or to encourage Congress to amend the UCMJ to do likewise. If, however, anyone is prosecuted for an Article 88 offense under circumstances where the protected official or legislative body had, by serious misbehavior in word or deed, abandoned his or its office, we would expect defense counsel to argue that the law should recognize the abandonment of office defense under Article 88 as it long has under Article 89.
Free speech, both for retirees and currently serving personnel, needs to be protected. As welcome as Judge Leon’s decision is for retirees, the law should be changed to strike a better balance for everyone.
Comments