Opinion Forum

McChrystal Should Be Charged

June 24th, 2010

There’s a lot of reporting and commentary on the saga of General Stanley A. McChrystal. He and his staff allowed a free-lance journalist writing for Rolling Stone to spend an extended amount of time with them to gather information for a profile on the general. The article contains highly negative comments by the general and his staff about many senior officials, including President Obama and Vice President Biden. Neither Gen. McChrystal nor his staff have challenged the content of the profile.

The media and the blogosphere are full of reports and commentary, mostly supporting the perception that Gen. McChrystal stepped far over the line and was properly fired by the President. I agree with that perception, and I believe that Gen. McChrystal must be charged under the Uniform Code of Military Justice (UCMJ). That would trigger an official investigation and most likely a court-martial.

Not much is being said about this because most of the people reporting and commenting don’t understand that Gen. McChrystal has apparently committed a serious violation of the UCMJ, the body of law that applies to every member of the U.S. military. Article 88, UCMJ says:

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.

The elements of proof required to support a charge under Article 88 include:

(1) That the accused was a commissioned officer of the United States armed forces;

(2) That the accused used certain words against an official or legislature named in the article;

(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and

(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.

The further explanation includes:

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.

The maximum punishment that could be imposed after conviction of an Article 88 violation is:

Dismissal, forfeiture of all pay and allowances, and confinement for 1 year.

Gen. McChrystal might also be appropriately charged under Article 133, UCMJ:

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

And/or Article 134, UCMJ:

Though not specifically mentioned in this chapter, all 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, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

I don’t advocate charging Gen. McChrystal as a matter of vengeance or personal animosity. I don’t know him, but from what I hear he’s an outstanding officer of exceptional ability. However, the UCMJ applies to him just as it does to any other member of the military. If a four-star general who apparently committed such gross violations of Article 88 isn’t charged, then who could ever be charged? If a much more junior officer — say, a lieutenant or a captain — clearly violates Article 88, how could an officer look him in the face while reading the charges to him, knowing that a general did the same thing or worse and escaped being charged?

I’ve worked directly for a number of senior generals and admirals. I’ve worked closely with an even larger number of senior officers and their staffs. That includes formal meetings, one-on-one discussions, dinners, drinking in bars and clubs, and social events at their homes and mine. Never once did I hear anything as extreme as what Gen. McChrystal and his staff reportedly said.

Charges under Article 88 are rare, mainly because it’s rarely violated. However, if because of political or other considerations Gen. McChrystal isn’t charged under Article 88, then it’s meaningless and should be removed from the UCMJ.

Articles written by Tom Carter
Tags: Article 88, charges, court-martial, McChrystal, UCMJ
Categories: Military, Politics | Comments (13) | Home

13 Responses to “McChrystal Should Be Charged”

Kevin | June 24th, 2010 at 11:22 am

To what degree ought those charges be leveled upon his staff versus on McChrystal himself? I ask because from what I’ve heard (primarily a lengthy Charlie Rose interview with two senior retired Generals) it seems that most of the most egregious stuff came from his staff rather than from him.

I understand that, to an extent, he is responsible for his staff. But in terms of the UMCJ, doesn’t a distinction need to be made?

That said… er… asked, my basic read is akin to yours, albeit from a strictly civilian perspective. However, I wonder about the point of prosecuting the general. Depending on the premise underlying the decision to prosecute, might not there be lessor ways of… punishing his actions short of prosecution? What I’m wondering, more specifically, is what would it take to redraw in bright lines the civilian control versus disruption (possibly highly negative) to the CIC, and might that not to some extent be at cross-purposes with the reasons for prosecuting?

Tom Carter | June 24th, 2010 at 11:57 am

Kevin, the law applies to officers on his staff as well as to him, and in my opinion any of them who appear to have violated Article 88 should also be charged and investigated. The principal violation would be what he himself said, but what he tolerated and approved of among his staff would also most likely be a problem for him, either under Article 88 or another article.

Civilian control of the military and the role of the National Command Authority (the President and SecDef) are clear and taken very seriously in the military. If the general and perhaps his staff were charged under the UCMJ for these offenses, that would go a long way toward making civilian control even clearer than it already is.

The larger issue, though, is the integrity of the law and the fairness with which it’s applied. If what McChrystal (and perhaps his staff) did isn’t treated as a violation of Article 88, then, like I said, the article is meaningless and the UCMJ is degraded. That can’t be allowed to happen.

Dan Miller | June 24th, 2010 at 1:51 pm

Tom,

I don’t disagree that General McChrystal’s words (and perhaps those of members of his staff) may have placed him in violation of various articles of the UCMJ. However, the UCMJ might itself interfere with his prosecution.

One difficulty might well be compliance with Article 25(d)(1), which provides that

When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to him in rank or grade. (emphasis added)

The problem may not be insuperable, and I have done absolutely no research to find the meaning of “when it can be avoided.” However, mere inconvenience would be a slim reed for reliance. There are currently about forty officers of four star rank in the U.S. military, and twelve in the Army. Depending on the identity of the convening authority, any of those in the other services could probably be members of a court martial panel.

Under Article 16, a general court martial must have at least five members in addition to the military judge; a special court martial must have at least three members in addition to the military judge. Eons ago, I participated in many courts martial, as trial and later defense counsel and later as a special court martial military judge. None involved accused officers. While I am aware of a few cases in which junior officers have been tried by special court martial, I am unaware of any in which an officer of flag rank has been so tried. That does not mean that there have been none or that it could not happen.

With rare exceptions not here pertinent, the accused at either a special or general court martial can waive the right to trial by such a panel and elect to be tried by judge alone. Would General McChrystal do that? Were I defending him, I would probably recommend against it. While there are probably enough four star generals and admirals available to constitute a general or special court martial, I question whether that would be the highest and best use of their time, and quite a lot of it might be needed. The Rolling Stone article would be hear-say and therefore insufficient evidence, and the burden would be on the prosecution to prove what was said and done. Although General McChrystal has not denied the accuracy of the article, there would be no need for him to affirm or deny it at trial; the prosecution would have the burden.

Finally, if General McChrystal has not already put in for retirement, I think he should do so; right now would still be an honorable time to do it. Although I very seriously doubt that there will be a court martial, applying for retirement one step ahead of the sheriff would be really stupid.

Kevin | June 24th, 2010 at 2:17 pm

What Dan is suggesting here – viz Article 25(d)(1) – makes a lot of sense and goes a long way towards explaining why Obama’s course of action might have been necessary, or at least advisable. Being court marshalled is inherently about being held accountable by your peers. In this case those would be military officers rather than the Constitutionally mandated civilian CIC.

One of the possible options that I’ve pondered – both before and after discovering how Obama himself was going to handle it – has been the possibility of demoting McChrystal. It wouldn’t have to be severe. Seems to me that busting him down to a 3-star general would send the same basic message as busting him back further.

But back to Dan’s comment for a second here. I’m wondering (claiming zero expertise at all)… wouldn’t Obama as CIC have the authority to impose any or all of the sanctions available via the UMCJ to a courts marshal? IOW, couldn’t Obama accept a resignation while stipulating it’s terms… viz “forfeiture of all pay and allowances” or some permutation thereof? If he so chose? Not that he would… or should… But he could, no?

larry ennis | June 24th, 2010 at 10:29 pm

Without the expertise or background of Tom or Dan its difficult to have an opinion using their rationale as my guide line. Let me say that I’m against taking anything that McChrystal has earned up to this point. Don’t overlook the fact that the General has undoubtly served his country far longer than this President.
There is also the politically unpalatable chance that McChrystal might survive a court marshal which would call the judgments made by the President and his advisers suspect.
This President has not shown any great aptitude in matters of a military nature. The ironic thing is this President now must call on a general that,as Senator Obama, he wouldn’t support in the Iraqi surge.
One last point, Tom with of all due respect, I’m forced to ask if your desire to have McChrystals career ruined is due to your devotion to this President.

d | June 25th, 2010 at 11:55 am

Since when did you decide that Tom was devoted to this president,quite the contrary,in my opinion. I don’t see that,Larry. Tom has no love lost for Obama,from his writings, it appears,he only wants him to do well,but did not vote for him or support him. Tom is going on his military background and makes that quite clear, in this article.Excuse me,Tom if I overstepped my bounds by answering this. I read this very differently than Larry,who seems to temper everything with his hatred for Obama. I,for one agree with Tom. Even a general of his stature, must follow military law,or there need not be any law,no matter what his opinion of the pres is,he is commander and chief.

Dan Miller | June 25th, 2010 at 12:24 pm

Kevin, you ask,

wouldn’t Obama as CIC have the authority to impose any or all of the sanctions available via the UMCJ to a courts marshal?

In a word, no. Punitive actions of that sort would require a court martial, as Tom has suggested would be appropriate. Various administrative actions could probably be taken, including reduction to his permanent grade, whatever it might be — probably major general (two rather than his present four stars). He could also be reassigned to the most undesirable post imaginable.

Be all of that as it may, I still expect to hear soon that he (General McChrystal, not President Obama) has retired.

larry ennis | June 25th, 2010 at 2:00 pm

d
I don’t hate Obama all that bad but I do enjoy watching you true believers get all beside yourselves.
However, when a military person of McChrytals standing is either relieved of or forced to relinquish a command and especially in wartime, it’s a great dishonor.

Tom Carter | June 25th, 2010 at 4:03 pm

Dan/Kevin, I don’t see any impediments in the UCMJ or the MCM to charging McChrystal with violation of Article 88 (and possibly other articles). If it came to a court-martial, a four-star defendant would make it a little more difficult, but it’s certainly doable. The principal point is that the law (in this case the UCMJ) applies to everyone it covers equally. If McChrystal isn’t charged in this case, then Congress might as well throw out Article 88 because no officer could (or should) be charged under it.

The highest permanent rank in the regular army is major general (two-star). Those serving in three-star or four-star rank are almost always approved to retire at those ranks, but it isn’t automatic. Obama or Gates could easily ensure that McChrystal retires as a two-star instead of a four-star, but again, that’s not the point. It certainly appears that he violated Article 88, and that violation should be charged.

Doris, thanks for your comment regarding Larry’s silly reference to my “devotion to this President.” He won’t listen, though. It’s impossible to penetrate his shadowy glennbeckian fantasy world of fearsome conspiracy theories and phantasmagoric socialist takeovers.

d | June 26th, 2010 at 3:56 pm

Welcome..Larry,true believers? Me? I am not a true believer in any person,espially not Obama.I don’t believe half anything I hear or half what I see. I am just hoping,as is any reasonable person,that he does well or better,for all our sakes. Like it or not,he is currently in charge, and we can’t change that. McChrystal was disrespectful of his boss and got what any,president,any,would have given him.

Annie Eagle Wing | July 9th, 2010 at 6:18 pm

And what do you think you would charge the General with sugar? Last time I checked we still have freedom of speech..including the military. The General told the truth and it embarassed our thin skinned president. True his staff had a pretty good laugh at the president’s expense..but hey..Tit for Tat. Obama embarassed the entire nation when he went around the world bowing to every Arab potentate, apologizing for the USA and dissing our allies. McCrystal deserves a medal for holding his tongue this long after the disrespect Obama showed to him.

Matt | September 7th, 2010 at 8:13 am

I know i am getting into this so late.

Annie. The military is excluded from Freedom of Speech. We do not and cannot (well we do.. just in the right circles) say whatever is on our mind to whoever we want. It doesn’t happen and it shouldn’t on the basic premise of discipline. And in this day and age of back to back deployments to VERY hostile combat zones.. no discipline = body bags.

I skimmed through most of the comments and while i voted for President Obama and am a HUGE fan of the General.. i am sure that it was deemed necessary to make him ‘go away’.. and they did. The President has enough on his plate and doesn’t need it looking as if his military staff (regardless of whether they are or are not) does not support their Commander.

The other thing that i will say from the original comment and definition of Article 88 of the UCMJ.. actually 2 things. Dismissal and Maximum.

The Army rarely applies Maximum punishment (hence no loss of pay/rank or confinement) and Dismissal was what occured (he was gently fired) which is the ‘standard’ for the most senior of ranks when they do things that would get us ‘little guys’ nuked. It is considered a punishment for them to lose their position for.. (inappropriate acts, theft, extortion, (under the radar..ie. not on the news or in the paper sexual misconduct) you name it. The closest thing that the general population (that has not served) has to what happened to Gen. McChystal is.. oh.. lets see.. President Clinton.. or any of the ‘I didn’t do it’ Senators. They are above the law.. refuse/fight/disagree all you want.. they are untouchable.

Tom Carter | September 7th, 2010 at 9:26 am

Thanks for the comment, Matt. Most people don’t understand military law and the limitations on rights that civilians take for granted.

One thing I would say about Article 88 (and already said): If it doesn’t apply to McChrystal and/or members of his staff, depending on who said what, then to whom could it ever apply? At least in theory, the UCMJ is supposed to apply to everyone subject to the code, regardless of rank or position.

How does McChrystal’s role in the Tillman cover-up, including his approval of Tillman’s Silver Star, factor into your opinion of him? (See Another Kind of Hero.)