Life is a wondrous thing, ain’t it? We rugged (or ragged) bunch bask in the country sounds. Passing thunderheads, sporadic gunfire, and that sharp hum of insect life that reminds us the land is alive. With the anniversary of 9/11 coming, up, it is interesting to look back on the start of the Global War on Terror, and now its _______ cessation (Article 88 deletion) in Southwest Asia. To be subject to it…again…is a little unnerving.

What is more is the emotion pouring forth as thirteen American uniforms died in a bloodbath suicide attack at Hamid Karzai International Airport in Kabul. It was larger in scope than just the American military personnel, of course. Some reports include horrible numbers, like 170 Afghan civilians killed where they huddled near the airport gate. But the emotion is keen about the Americans, and included particular reference to the lack of any official from the Administration to greet the caskets of the fallen in the worst military casualty event in a decade.

That was true with Lt. Col. Stuart Scheller, a 17-year Marine veteran, who risked his career and pension when he posted a scathing rebuke of the senior military leaders who failed US servicemen serving in Afghanistan. It is not an Article 88 case at this point. Scheller posted on his Facebook page Friday that “I have been relieved for cause based on a lack of trust and confidence as of 14:30 today.”

I do not know how he intends to deal with the situation. The case did apparently penetrate to the Office of Naval Intelligence, whose Chief of Staff sent a note reminding all active personnel and retirees of Article 88 in the Uniform Code of Military Justice, the one that specifies court-marshal for officers who speak of a list of serving officials “in a contemptuous manner.” I would have to consult an attorney as to what those are, but such proceedings have not been brought against a retiree in a long time.

The exact words of the Uniform Code of Military Justice Article 88 – “Contempt Toward Public Officials” 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 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 DoD additionally has instructions and directives on the subject. DoD Directive 1344.10 governs “Political Activities by Members of the Armed Forces.” DoD Dir 1325.06 applies to “Handling Dissident and Protest Activities.” Both specifically apply only to active-duty members.

The only case of a retired military member being court-martialed for making “contemptuous statements” against elected officials occurred in 1918, long before the UCMJ was instituted in 1950. In that case, a retired Army musician was tried by court-martial for stating that “the president and “government [were] subservient to capitalists, and fools to think they can make a soldier out of a man in three months and an officer in six.”

The Writer’s Section is generally in agreement, though with great respect to anyone empowered to bring any of us up on charges. That veteran was found innocent. In the only other pre-UCMJ case since, a retired officer was charged in 1942 under Article 88. He had given a speech opposing America’s intervention in World War II, and impugned President Roosevelt’s loyalty. The Army charged him under Article 88, but later withdrew the charges to avoid further publicity.

In the America the Writers Section served, the matter never came up. We served as the apolitical part of government, kept it that way while we wore the uniform, and let the matters of military justice take care of themselves once we were retired. The ONI note came as a bit of a shock since the very nature of “justice” appears to be selective in its application these days. In doing the research on what the hell Article 88 meant, I looked at the cases cited, courtesy of a search engine optimized to look for people looking at ‘things.’

There were a few when Don Rumsfeld, a former Naval Aviator, became the youngest and later oldest Secretary of Defense. In his second tour in the job, he was attempting some reforms. None of the Article 88 issues were prosecuted, but today there are at least three law practices that specialize in services to former uniformed service members who find themselves in UCMJ trouble.

Article 88 is mentioned in their advertising, which suggests there have been some cases handled without much fanfare. Clearly, the behavior (both written and oral) of many active-duty and retired personnel during the Trump Presidency was not pursued. With all the signed letters flying around, any one of them could have justified invocation of the UCMJ.

And as for the current emotion about the Afghan situation, certainly there could be similar indiscretions subject to prosecution under the terms of the article, regardless of status as active or retired. Based on the ONI direction, there could be more interest in a military more concerned with social justice than in other times.

There has been some controversy over the matter. Some have asserted that retired military officers are not subject to the Uniform Code of Military Justice. That is incorrect. All those receiving retired pay are very much subject to the UCMJ and need to watch their pints & quarts.

Former West Point professor, American Enterprise scholar and author Frederick W. Kagan got it wrong recently. Corrected by a retired USAF Lieutenant General, he acknowledged the error but went on to the question of the applicability of Article 88 to retired personnel. He said it this way:

“Apart from the fact that there are no cases of attempted prosecutions for violating this article, the standard for preferring such charges is different from the one required to accuse active-duty officers. To prosecute a retired officer, the military would have to show that the words used “create a clear and present danger” leading to evils “that Congress has a right to prevent.” This hurdle is much higher than the requirement to show for active-duty officers that “the speech interferes with . . . the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale of the troops.”

According to Eugene Fidell, of the National Institute of Military Justice, the last time Article 88 was invoked was 1967. During the Vietnam War, a reserve officer, out of uniform, carried a placard in an anti-war demonstration that read “End Johnson’s Facist Aggression in Viet Nam.” He mis-spelled “Fascist” as well, but was not cited for it.

In court-marshal proceedings, he was convicted for using “contemptuous words” against the President and “conduct unbecoming” under Article 133. The Court of Military Appeals affirmed the verdict, ruling that suppression of his speech was essential to prevent a “military man on a white horse” from challenging “civilian control of the military.”

Article 88 clearly has been used in times of stress. 1918, ’42 and ’67 all had huge social issues associated with conflict. As does 2021. But in a new cancel culture, the old standards applying to Musicians and grumpy retired officers may have changed. Today we have a culture that deems appropriate life-searches of social postings as justified grounds for many things. The Section’s favorite is the denial of service for the nominated new “Jeopardy” quiz show host, who made an untimely joke some years ago. The process has become punishment. A brisk legal fight costing a garrulous retired officer his retirement and a tall stack of legal bills might be viewed as a useful exercise in shutting down opposing views.

In fact, that appears to be the current situational state of Justice in America. I would have to go look and see if that is a designated category for enforcement. But I can speak for all those in the Socotra Writer’s Section. We are unified on this matter, and have the greatest respect for all those serving in offices mentioned in Article 88.

Copyright 2021 Vic Socotra
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