It is a virtuous tenet of American civil society that citizens have the right to criticize their government and its elected leaders without fear of reprisal. But, if you are a retired military officer whose years of honorable service lie in your rearview mirror, you may have to start choosing your words more carefully because a single “contemptuous” comment might make you a defendant in a military court-martial.
Such a scenario should sound far-fetched, but it preys on the minds of those officers who’ve served a full career and retired honorably from the U.S. armed forces. It is not paranoia driving this thinking, but a clear-headed read of today’s political climate. As he promised on the campaign trail, President Donald Trump’s second term has brought retribution in many forms, and the list of those targeted by his quest for revenge and his demand for unquestioning loyalty grows longer by the month.
The concern of retired military officers, many of flag rank, over the prospect that the exercise of their free speech rights in commenting on this administration may produce a recall to active duty and criminal prosecution under the Uniform Code of Military Justice is decidedly real in this time of polarized politics where civil/military relations are more fraught than at any time since the Vietnam War. And the potential chilling of speech could not come at a worse time. With National Guard and active-duty troops patrolling American cities, and ICE operating like a militia, hearing from those citizens most conversant with national security and military matters has never been more critical for the nation. The ability of those who have served for so long to offer their viewpoints should not depend on whether their comments are viewed as “contemptuous” by a thin-skinned administration determined to vilify its opponents.
Free Speech Rights and the U.S. Military
Since 1987, the question of who is subject to the jurisdiction of military courts has turned solely on the accused’s “status” as a member of the Armed Forces regardless of whether the alleged offense is connected to military duties or occurred on a military installation. Exercising its constitutional authority “to make Rules for the Government and Regulation of the land and naval Forces,” Congress has subjected military retirees to military jurisdiction since the first military retirees list was promulgated in 1861. Although the U.S. Supreme Court has not specifically ruled on the military status of retired service members, it has approvingly noted that they remain subject to the Uniform Code of Military Justice (UCMJ).
No court has suggested, however, that exposure to military jurisdiction neuters the First Amendment rights of American service members. As former Chief Justice Earl Warren once observed: “our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” But Warren acknowledged that the “doctrine of military necessity,” adopted by the Supreme Court in 1953, conferred upon the military the latitude to implement its regulations largely outside the purview of civilian judicial review. Exemplifying that broad discretion, decisions by both the U.S. Court of Appeals for the Armed Forces (CAAF) and the District of Columbia Court of Appeals have upheld court-martialing military retirees for conduct unrelated to military service because those retirees remain technically enrolled in the military. Notably, however, retirees do not participate in military activities, are not assigned to specific commands, lack authority to issue orders, and have no continuing military duties except primarily to report for future service, if called – a collective description decidedly foreign to the conventional concept of active duty.
Where an alleged military offense implicates speech that would be protected from criminal sanction in civil courts, the First Amendment requires that a balance be struck between the essential values of the armed services and the bedrock right to speak out as a free American. CAAF, the highest court in the military hierarchy, recognizes this limit that the First Amendment imposes on the leeway generally afforded military governance. Thus, even for service members serving on active duty, where criminal charges implicate speech protected in the civilian community, military courts demand that the government prove that the speech sought to be punished has a “direct and palpable connection” to the military’s mission or its good order and discipline before proceeding to the question of whether the alleged conduct violates the other elements of a charged offense. Consequently, even active-duty service members have First Amendment rights, but those rights are tempered and subject to restraint where their speech has that “direct and palpable connection” to the military mission and the demands of discipline and duty.
Take, for example, an active-duty service member, off duty, off base, in civilian clothes without any insignia or marking indicating his military status, speaking at a rally addressing a particular environmental issue affecting the local community. Compare that example to a service member appearing at the same rally, but in uniform, and castigating the military and the base commander because the environmental issue involves pollution allegedly occurring on the base where the service member is stationed. Although definitive hypotheticals are difficult to draw in the First Amendment context given that black and white often turns to a murky grey, the second example presents a situation where it is more likely that a military court would find that the speech is prejudicial to good order and discipline and susceptible to punishment under the UCMJ.
Article 88 of the UCMJ
This brings us to Article 88 of the UCMJ and its potential to squelch the free speech rights of those who have retired after devoting a lifetime of service to their country.
Following World War II, Congress replaced the anachronistic Articles of War with the UCMJ, which was intended to bring a greater similarity between military and civilian law while furnishing the accommodations necessary to properly administer justice in the unique military environment.
The text of Article 88 of the UCMJ provides:
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 Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
Jurisdictionally, the application of Article 88 depends solely on the military status of the accused. Namely, whether the accused in the court-martial proceeding is a person who is within the “land and naval forces” regulated by Congress, and Congress has made retired service members of all branches of the armed forces who receive retirement pay subject to the UCMJ.
In approving the UCMJ, Congress provided no substantive guidance on the possible scenarios implicated by Article 88, perhaps reflecting congressional reliance on sound judgment and military prosecutorial discretion. The Military Judges’ Bench Book, a non-binding but prominent source of military law, attempts to fill one of the obvious interstices by defining “contemptuous” as “insulting, rude, and disdainful conduct, or otherwise disrespectfully attributing to another a quality of meanness, disreputableness, or worthlessness.” Further, the Manual for Courts-Martial, issued by presidential executive order as a detailed procedural guide for implementing the UCMJ, expands upon Article 88 only by noting that the truth or falsity of a statement is immaterial to a finding of contemptuousness. On the whole, there is little legislative or executive, and virtually no judicial, guidance on the proper use of Article 88.
The predecessor of Article 88 included in the Articles of War was used on multiple occasions, including during the Civil War and during World Wars I and II, but once the UCMJ replaced the Articles of War in 1951—and the text of Article 88 limited its application to commissioned officers—only one officer has been charged with its violation: Henry Howe in 1965.
On November 6, 1965, Second Lieutenant Henry H. Howe, Jr., of the U.S. Army Reserve, serving on active duty, marched with a group of civilians in a peace demonstration in El Paso, Texas. He was off-duty and off-base at the time. He wore civilian clothing, and carried a sign urging, in misspelled text, on one side: “END JOHNSON’S FACIST AGRESSION IN VIET NAM,” and on the other “LETS HAVE MORE THAN A CHOICE BETWEEN PETTY IGNORANT FACISTS IN 1968.”
For his actions, Howe was tried by a general court-martial (the most serious trial level in the military justice system), convicted of violating Article 88, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and to confinement at hard labor for two years.
If Article 88 has an appropriate application, as understood by those who incorporated it into American military law, surely Lieutenant Howe is that paradigm: a commissioned officer on active duty during wartime directing contumacious speech at the president, his commander in chief. Still, even in Howe’s case, the government conceded that, but for his military status, Howe’s actions could not constitutionally be criminalized. In stark contrast to Lieutenant Howe’s prosecution as an active-duty service member is the potential application of Article 88 to a retired military officer recalled to active duty solely for the purpose of being court-martialed under Article 88 for speech that is protected by the First Amendment.
Retired Officers Surrender Significant Rights If Tried Under the UCMJ
What remains, then, is a criminal statute of disconcertingly undefined scope proscribing speech that is viewed as quintessential First Amendment expression in civilian society: criticism of those occupying the highest positions in American government.
To illustrate this distinction, consider two examples: In the first, a retired general or admiral publicly criticizes the president in crass and insulting terms while exhorting active-duty military personnel to ignore the president’s lawful orders. In the second, a retired general, in temperate terms, criticizes the president’s policy in Ukraine or his tepid support for NATO. Clearly, on a spectrum of “contemptuous” words, the first example comes much closer than the second to violating Article 88 but, in these times, with this president, the second example arguably presents the same danger of a prosecution under Article 88. And, critically for any retired officer uttering words that offend this president, the question of whether any speech crosses the First Amendment’s traditionally high bar to allow for prosecution under Article 88 would be decided in a military court-martial.
While the military’s highest court has opined that a member of the armed forces has all the First Amendment rights of a civilian which are not inconsistent with his military “status,” this assurance affords little comfort to retired military officers whose free speech rights fall under the foreboding shadow of Article 88 long after their active service has ended. For those retired officers, their allegedly “contemptuous words” represent a crime under Article 88 that has no corollary under civilian law and, as noted, any legal proceedings needed to vindicate the First Amendment rights of these retired officers will be adjudicated in military courts solely because these retirees are receiving the retirement pay that they earned through decades of military service. Viewed logically, their military “status” is defined entirely by their receipt of that retirement pay, and not by any particular duty, military obligation, or need to maintain good military order and discipline.
The potential legal costs to these retirees are substantial – both financially in terms of the cost of a legal defense, and in terms of their legal rights. A reactivation to active duty with its concomitant exposure to military courts-martial jurisdiction subjects them to a crime (Article 88) that is not cognizable in civil society while jettisoning important rights held by any civilian defendant in a federal criminal trial, including (1) the Fifth Amendment guarantee to the presentment of an indictment by a grand jury (the UCMJ provides no grand jury proceeding); (2) the right to be tried in an Article III court before a life-tenured federal judge (UCMJ courts-martials are ad hoc proceedings convened, as necessary, pursuant to the provisions of the Manual for Courts-Martial by a commanding officer who decides what charges will be brought despite almost certainly having no personal legal training. The presiding official at the court-martial will be a military judge, selected by the particular service’s Judge Advocate General, who, despite protective provisions in the UCMJ, will continue to be subject to unique features of military service, such as performance evaluations and duty station selections, to which Article III judges are immune.); and (3) the right to be tried by a jury comprised of 12 jurors who can render a guilty verdict only if unanimous (under the UCMJ, a general courts-martial is tried before a panel of 8 members who can return a guilty verdict with the concurrence of as few as 75 percent of those members).
In 2019, the Supreme Court denied certiorari in the case of a retired member of the Fleet Marine Corps Reserve, Steven Larrabee, who was recalled to duty and tried by a military court-martial on a charge of sexually assaulting a civilian on private property. Larrabee challenged military jurisdiction, asserting that the alleged crime occurred years after his active duty had concluded and he no longer performed any military function, and pursued collateral relief on the question of whether the military retained jurisdiction allowing him to be tried by court-martial. But, after prevailing in the federal district court, the D.C. Court of Appeals reversed and the Supreme Court declined to review the case.
The outcome in Larrabee suggests that for retired military officers whose sole remaining connection to the armed forces after decades of active duty service is their receipt of military retirement pay, the discomfiting reality seems to be that their military “status” is essentially perpetual, such that their exposure to military courts-martial can be triggered by, for example, a vengeful president determined to extract punitive retribution against a critic. When the military’s authority has been interpreted to embrace such sweeping capacity for affecting the lives of former service members, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts deserves careful reexamination.
As the military’s highest court recognizes, the free speech rights of those who have served their country for an entire career cannot be circumscribed by uniquely military restrictions directed to maintaining good order and discipline among those serving full-time on active duty unless the protected speech sought to be punished can be convincingly shown to have a compelling adverse effect on that good order and discipline. Only such an impact can suffice to establish the “direct and palpable” connection required to establish court-martial jurisdiction over that protected speech, and Article 88 should be viewed as carrying such an interpretation as a matter of law.
An Article 88 Prosecution: Theoretical Concern or Palpable Danger?
The concerns expressed about the possible application of Article 88 to protected speech of retired military officers may seem fanciful or theoretical – until one examines Trump’s evolving treatment of those who speak out against him.
During the first Trump presidency, certain senior military retirees publicly criticized the president without a recall to service and court-martial. For example, retired Marine General and former Defense Secretary James Mattis excoriated Trump over his use of the military to quell Black Lives Matter protests in 2020, and retired General Stanley McChrystal called Trump “immoral.” But, as Trump campaigned for a second term, concern over his calls for revenge prompted President Joe Biden to take the unprecedented step of issuing preemptive pardons to General Mark Milley, the former chairman of the Joint Chiefs, and others in anticipation of what Trump was promising.
Those concerns have proved prescient. In the first months after taking office, Trump revoked the security clearances of dozens of former government officials many of whom had been involved with the 2016 investigation into Russian election interference which, to Trump, is the “Russia hoax.” In January, Trump had Defense Secretary Pete Hegseth order the revocation of Milley’s security detail and then churlishly ordered Milley’s photograph removed from the Pentagon. Critics say eliminating Milley’s security detail potentially risks the life of the former chairman who carried out Trump’s orders to strike Iranian commander, Qassem Soleimani, in early 2020.
Trump fired the director of the National Security Agency, along with his civilian deputy, in April after Laura Loomer, charitably described as a right-wing conspiracy theorist, advised Trump that they were “disloyal.” In May, members of the National Intelligence Council (NIC) were fired by Director of National Intelligence Tulsi Gabbard after an NIC report contradicted Trump administration claims about Venezuelan gangs. Gabbard’s office stated the firings were due to the officials’ opposition to Trump and the politicization of intelligence.
In July, Gabbard declared that “a treasonous conspiracy” had been “committed by officials at the highest level of our government [during the Obama administration]” and shortly thereafter, the Justice Department acknowledged that it had opened criminal probes into the former director of the CIA (John Brennan) and the former director of the FBI (James Comey) who had played roles in the development of the aforementioned Intelligence Community Assessment that is Trump’s bête noire.
The director of the Defense Intelligence Agency (DIA) was fired in August after his agency had released a preliminary damage assessment in June that contradicted Trump’s claim that the “Midnight Hammer” B-2 bombing operation had “obliterated” Iranian nuclear facilities. In late August, John Bolton, one of Trump’s four national security Advisers from his first term and now a fierce Trump critic, had his home and office searched by the FBI as part of an ongoing criminal investigation.
Trump’s second term has been marked by an unrelenting drive to punish perceived political opponents and enemies. He has embraced tactics that include lawsuits, executive orders, regulations, dismissals from government jobs, revocations of security clearances, withdrawal of security details, and public intimidation to take on a wide range of individuals and institutions he views as having unfairly pursued him or sought to block his agenda. Retired military officers have watched as Trump fired the chairman of the Joint Chiefs, the director of the National Security Agency, and the director of the Defense intelligence Agency, all flag officers with years of honorable service. Last week, former senior FBI officials filed a lawsuit alleging that the thirst for vengeance in this administration is so unquenched that the FBI Director knowingly broke the law to dismiss them because they were perceived as disloyal to Trump.
Confronted with this avalanche of retribution, why should any retired officer conclude that this administration will pursue any course other than using every available tool to silence criticism and mute dissent? Article 88 of the UCMJ provides such a tool – and its availability in the present political environment is already working to muzzle those who have honorably served. The cost to these honorable retirees is the chilling of their First Amendment rights. The cost to the country is the silencing of those who, through a lifetime of military service, possess unique wisdom and judgment on the country’s most pressing national security and foreign policy issues at a time when the nation critically needs the benefit of that wisdom and judgment.
