Crystal gazing — Court-Martial Trial Practice Blog

Well, we have a general idea of what GEN McChrystal is accused of saying, as well of supposed statements of other officers. As I was driving home today I heard a story that he’d submitted a resignation – from the Army, or his current position? USA Today has this piece in which they report a resignation and a denial that a resignation has been submitted. There are so many puns about crystal and star gazing. But sadly there’ll be little humor in what’s going on. From a military justice practice perspective, how many clients have been accused and disciplined for similar types of disrespect?

The LA Times has this piece about the increasing politicalization of the military (something I somewhat tongue in cheek commented was behind LTC Lakin’s contumacy):

Army Gen. Stanley A. McChrystal’s criticism of Obama administration officials symbolizes an accelerated partisanship of the officer corps.

Here is a link to the article.

Here is a link to a 1999, Army Lawyer article which discusses prior cases of Article 88, UCMJ, issues (does McCarthur ring a bell). See, LTC Michael J. Davidson, Contemptuous Speech Against the President, Army Lawyer, July 1999.

These issues were debated to some extent during the presidential campaigns.

Article 88, UCMJ, 10 U. S. Code 888,

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 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.

At what point do public comments of senior officers remain purely disciplinary in the same manner as the enlisted soldier who gets prosecuted, disciplined, or chucked out, rather than having the luxury of resignation or other symbolic gestures.

Peter E. Brownback III says:

June 23, 2010 at 7:24 am

I’m pleased to see you post on this topic. Being the TC, DC, or MJ on this case would be very interesting – not, mind you, that I’m predicting or advocating for a court-martial. On thinking about it though, I was struck by the potential problems in voir dire:

TC: Your Honor, have you violated Article 88 in the last six months?
MJ: Uh, well, uh, court’s in recess.

I am not quite sure that I understand the last paragraph of the post, though.
1. Are you asking what it would take to have a court-martial of a senior officer for a violation of Article 88? If so, the answer is fairly simple – when the convening authority decides enough is enough. That, though, begs the question of who is the convening authority. Simple enough when you have a PFC in B 2/505. A lot harder when you have a four-star.

2. Are you saying that a troop would face a court-martial for the same speech? I’m not willing to argue for or against that proposition, but I think it is unlikely. No one would ever know what the troop said – Rolling Stone doesn’t send people to B 2/505 to listen to a PFC for weeks on end.

Be that as it may, an excellent post. Thank you for digging up the cite to the Army Lawyer article and putting it out. I’m sure that your readers will be glad to have it at hand when Art 88 is thrown around this week.