Protest resignations OR protest retirements?

A reader of my article, “Duty at All Costs: The Ethics of Protest Resignations by Military Officers,” (Naval War College Review, Vol. 60, No. 1 (Winter 2007), 103- 128) raises an interesting question regarding a military retiree being recalled to active duty and prosecuted under Article 88 of the UCMJ for “contemptuous words.” My response follows:

First and foremost, I am a priest and not a lawyer. I am completely unqualified to offer legal advice. The thoughts that follow are simply my musings about your question.

To the best of my knowledge, the military has not yet recalled and court martialed a retiree for expressing political opinions. The retired Marine recalled for a court martial to whom you refer in your letter, if my internet research identified the correct individual, was living in Japan and convicted of child pornography offenses. His case is similar to the cases I found in my quick, non-exhaustive search. Every military retiree court martialed for an offense committed while retired, whose case I read about, faced charges of criminal activity such as child pornography or sexual harassment.

However, the possibility of prosecution for expressing political opinions does seem to exist. James Joyner in a blog post, “Prosecuting Retired Generals” (Outside the Beltway, April 27, 2006 at https://www.outsidethebeltway.com/prosecuting_retired_generals/), quotes Dean Falvy from a post at FindLaw:

Even retired officers may be at risk when they speak out – as Lt. Col. Michael J. Davidson noted in his July 1999 Army Lawyer article, “Contemptuous Speech Against the President.” Davidson noted that Article 88 may apply to retired commissioned officers by virtue of other articles of the UCMJ. No charges have been brought against a retired officer for such an offense since 1942, and most retired commentators are probably oblivious to the risk. But the theoretical possibility does exist.

Criticism is not synonymous with contempt. Furthermore, free speech is a protected right in the Constitution, unlike child pornography or sexual harassment. Recalling retirees for court martial because a retiree expressed particular political opinions or participated in the political process would, I suspect, place the Department of Defense and probably the incumbent administration on very thin ice politically. At a minimum, such a prosecution would create an explosive news story.

CAPT Michael Junge, USN in his blog post, “The Retired Admiral, the President, and the Military Profession” (Defense One, August 20, 2018 at https://www.outsidethebeltway.com/prosecuting_retired_generals/) recognizes the impracticality of recalling for court martial or non-judicial punishment an officer whose speech may have expressed contempt for the president. He argues that the military profession should be self-correcting, i.e., peers should correct one another. Failing that, the Secretary of Defense should informally but publicly reprimand the officer by using tweets, for example. Importantly, CAPT Junge defends the retired admiral’s prerogative to offer political criticism.

Distinguishing between political opinion and contempt is often difficult. Consequently, courts have generally exempted the authors of comments directed at prominent political leaders from libel suits. Indeed, legal opinion is divided over whether the comments of the admiral in question were contemptuous or merely strongly worded political opinion.

Recalling and prosecuting even one retiree under the UCMJ for expressing his/her opinions would invariably create a “chilling effect” on retirees exercising their first amendment right to free speech and on their active participation in the political processes as a citizen. The chilling effect might deprive political leaders and voters of valuable advice, e.g., that the U.S. was actually losing and not winning a long-fought war. If that occurred, the real measure of a retiree’s convictions and courage would become whether the retiree chose to resign from the military, thereby forfeiting all benefits a military retiree receives but regaining the freedoms all civilian citizens enjoy.

Of course, the less prominent a retiree is and the smaller the audience his/her comments attracted, the less probable any punitive action becomes. Any action, of course, presumes that someone in a position to act knows of the comments, in itself a rather unlikely presumption.