Office of Naval Intelligence Is Implicitly Threatening Retired Officers With Court-Martial

The Daily Wire is reporting that the Office of Naval Intelligence (ONI) has sent an email to ONI active duty and retired officers warning them that they are subject to the UCMJ (military law), and can be disciplined for “disrespecting” certain U.S. officials. The relevant part of the email reads:

Given the heightened political and social atmosphere surrounding Afghanistan, it is important to remind our uniformed personnel (active duty and reservists on temporary active duty) and military retirees of their responsibilities and obligations under Article 88 of the Uniform Code of Military Justice and Department of Defense Directive 1344.10. While it is vital to protect the constitutional right of freedom of expression for these groups, consistent with mission accomplishment, national security, and good order and discipline, it’s important to remember certain limitations. Namely, uniformed personnel and military retirees are prohibited from disrespecting senior government leadership (e.g. the President, Vice President, Congress, Secretary of Defense, Service Secretaries, etc.).

Being a retired officer (LCDR) this email raised my blood pressure.¹ However, after my military career I went back to school (Go Irish!) and became a lawyer. So the side of my brain that stopped functioning logically in order to effectively practice law had to evaluate this from the legal side.

Retired military officers are subject to the UCMJ, but they are recalled to active duty to be disciplined - court-martial or otherwise - very rarely, and only for extremely severe offensive such as child abuse, murder, etc. I do not know of any case where a retired officer has been charged with a violation of Art. 88.²

I believe Art. 88 is necessary and constitutionally sound as it applies to active duty officers. However, for a number of reason I wont bore you with, I doubt it would survive a constitutional challenge on First Amendment grounds if it was used to court-martial a retired officer. Further, this implied threat by ONI is rich indeed, considering retired Admiral McRaven was never charged under Article 88 for the scathing and very disrespectful Op-ed he published in the Washington Post on April 16, 2018 attacking then President Trump.³

I doubt ONI is seriously planning on court-martialing retired officers for engaging in protected speech. Instead, I believe ONI is attempting to prevent retired officers from engaging in protected speech they disapprove of by implicitly threatening to court-martial them, even though they have no plans to do so. It is an all to common tactic that too many governmental organizations, most often state universities, engage in called “chilling speech.” This tactic has repeatedly been ruled a violation of the First Amendment by every federal court including the Supremes.

I find it ironic that those demanding respect engage in acts that brings disrespect upon themselves. Go figure.

1. Pro tip, anytime someone says something like “it is vital to protect the constitutional right of freedom of expression…” followed by a qualifier, they really do not think it is vital to protect that right at all.

2. The full text of Art. 88: 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.

3. Though I disagree with most of the substance and all of the tone of Admiral McRaven’s op-ed, I firmly believe it is well within his First Amendment rights. Anyone calling for an investigation or criminal action against him are the ones who are undermining our Constitution, not McRaven. Having said this, I did lose a lot of respect for Admiral McRaven as both an officer and a person.