Monday, April 17, 2006

Consider two hypothetical situations. In the first, an Army general officer in a theater of war decides by himself that he strongly disagrees with the orders of the secretary of defense. He resigns his commission, returns to private life and speaks out vigorously against both the policy and the secretary of defense.

In example two, the top 100 generals in the Army military chain of command secretly agree among themselves to retire and speak out each one day after the other.

In example one, above, unambiguously, the general has behaved lawfully. In example two, an arguable case could be made that something in the nature of a mutinous sedition has occurred in violation of Article 94 of the Uniform Code of Military procedure. When does an expanded version of the simple honesty and legality of the first example cross over into grounds for a court martial? More specifically, can a series of lawful resignations turn into a mutiny? And if they are agreed upon in advance, have the agreeing generals formed a felonious conspiracy to make a mutiny?

This may sound far fetched, but in The Washington Post on Sunday the very smart, very well connected former Clinton Ambassador to the U.N. Richard Holbrooke published an article titled “Behind the Military Revolt.” In this article, he predicts that there will be increasing numbers of retired generals speaking out against Defense Secretary Donald Rumsfeld. Then, shockingly, he writes the following words: “If more angry generals emerge — and they will — if some of them are on active duty, as seems probable … then this storm will continue until finally it consumes not only Donald Rumsfeld.”

Mr. Holbrooke is at the least very well informed if he is not himself part of this military cabal intended to “consume … Donald Rumsfeld.”

Mr. Holbrooke sets the historic tone of his article in his first sentence when he says this event is “the most serious public confrontation between the military and an administration since … Harry Truman fired Gen. Douglas MacArthur.”

He takes that model one step further later in his article when he compares the current campaign against Mr. Rumsfeld with the MacArthur event, with Gen. McClelland vs. Lincoln and Gen. Singlaub against President Carter, writing: “But such challenges are rare enough to be memorable, and none of these solo rebellions metastasized into a group, a movement that can fairly be described as a revolt.”

A “revolt” of several American generals against the secretary of defense (and by implication against the president)? Admittedly, if each general first retires and then speaks out, there would appear to be no violation of law.

But if active generals in a theater of war are planning such a series of events, they may be illegally conspiring together to do that which would be legal if done without agreement. And Mr. Holbrooke’s article is — if it is not a fiction (which I doubt it is) — strong evidence of such an agreement. Of course, a conspiracy is merely an agreement against public policy.

The upcoming, unprecedented generals’ “revolt” described by Mr. Holbrooke, if it is not against the law, certainly comes dangerously close to violating three articles of the Uniform Code of Military Justice:

“Article 94 — Mutiny and sedition Text.

(a) “Any person subject to this chapter who (1) with intent to usurp or override lawful military authority, refuse, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.”

“Article 88 — Contempt toward officials Text.

“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.”

“Article 134 — General article. 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.”

Certainly, generals and admirals are traditionally given more leeway to publicly assess war policies than is given to those in lower ranks. But with that broader, though limited, discretion comes the responsibility not to be seen to in any way contradict the absolute rule of civilians over the military in our constitutional republic.

The president has his authority granted to him by the people in the election of 2004. Where exactly do the generals in “revolt” think their authority comes from?

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