Quite a few people are twittering and blogging about Congressman Joe Wilson’s recent behavior during the President’s speech to Congress. The basic claim is that he is subject to court-martial. Maybe, maybe not.
Here is what he has on his biography on his official site:
Throughout his life, Joe has also had a tremendous passion to serve his country as a member of the United States Armed Forces. After serving in the United States Army Reserves from 1972-1975, he also served in the South Carolina Army National Guard. In the summer of 2003, Joe retired as a Colonel, having served as a Staff Judge Advocate assigned to the 218th Mechanized Infantry Brigade. At the time, he was the only active Guard member serving in Congress.
It is true that under Article 88, UCMJ, a person can be prosecuted under the UCMJ for certain types of behavior toward:
[T]he 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[.]
I do not see an exception for protected speech such as that by a public official in certain circumstances: e.g. while acting in an official capacity as a Representative in a matter related to his representative duties. While we might, or might not, agree with his behavior, I think this would be his defense if the case ever went to a trial.
However, the National Guard would need to get jurisdiction over him. For a retired active duty officer there could be a recall. Remember this issue came up when various retired senior officers were critical of President Bush. Whether a recall would be appropriate would be a matter of discretion. Reserve and Guard retirees may be different in terms of the ability to recall them to duty for the purpose of court-martial or administrative action. Congressman Wilson’s situation is a little different in terms of jurisdiction and ability to take adverse administrative actions where the person has not yet retired or separated from the Guard or Reserve. Remember this was an issue with Governor Sanford and his AF Reserve status, about which I noted here.
So, here’s the legal question: Can a retired Guard person be recalled to “duty” to obtain jurisdiction for the purpose of court-martial or adverse administrative action? That’s a different question than whether or not it would be a good idea.