When we assumed the Soldier, we did not lay aside the citizen.
– George Washington, letter to Peter Van Brugh Livingston, 1775
If you are a military retiree, you may not know that your freedom of speech rights continue to be restricted after you have honorably retired from the military. These Constitutional rights are restricted and if you violate Article 88 of the Uniform Code of Military Justice (UCMJ) you may be called back onto active service and court martialed. Under our current laws this restriction of your freedom and the threat of court martial is permanent for you until the day you die. This is wrong. Restricting freedom of speech of military retirees is unconstitutional and helps stifle the civic interaction of veterans in our political system.
How Did We Get Here
I first became aware of Article 88 and its potential impact on military retirees shortly before I retired. I was having a discussion that touched on politics with a friend and retired military officer in 2019. My friend pointed out that under Article 88 of the UCMJ a retiree could be brought back onto active service and court martialed for exercising their first amendment freedom of speech rights. My friend’s comment caught my attention, and I began to do some research. What I found confirmed my friend’s assertion was correct. Under current law, if a retiree is deemed to have used contemptuous words (p. IV-21) against a sitting president of the United States, president of the Senate, speaker of the House of Representatives, state governor, or other political leader, they could receive up to a year of confinement and the forfeiture of all pay and allowances. As the events unfolded during the tumultuous year of 2020, Article 88 and its application to military retirees would again be seen as an issue. A number of retired flag officers made public statements about former President Trump that caused public discussion on Article 88 of the UCMJ, contemptuous words and the prospect of receiving punishment for exercising your freedom of speech after you have retired from the military.
Air Force Captains Pavan Krishnamurthy and Javier Perez in the Harvard National Security Journal, provide an exceptional perspective on this very important issue; they argue the application of Article 88 to retirees adversely effects the rights of these American citizens, and therefore that the Supreme Court should exempt retirees from this restriction. Military retirees became subject to the UCMJ when it was enacted in 1951, a move that caused some initial controversy, but otherwise has been seldom tested in the courts. Thus far, judges have deferred to the military, allowing it great latitude to deal with its own personnel. The all-volunteer force is 50 years old and based on the relative youth of this policy the ramifications of restricting retirees’ freedom of speech have yet to receive a significant challenge in the courts, generate public debate, or to be considered by junior leaders weighing the benefits and risks of making a career out of the military.
Second Class Citizens?
The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” However, Article 88 of the UCMJ does just that to military retirees. As uniformed members of the Department of Defense we understandably gave up this right to serve in stressful and demanding environments where the requirement to maintain good order and discipline was essential to mission accomplishment and survival. These requirements as a retiree are no longer valid. As George Washington stated in his reply to the New York Assembly, soldiers look forward to the “happy hour when the establishment of American liberty, on the most firm and solid foundations, shall enable us to return to our private stations in the bosom of a free, peaceful and happy country.” Would our predecessors who fought for our nation’s independence agree with the concept of fighting for a nation, and then once this obligation is complete settle into a life of a second-class citizen where you have less freedom than a fellow citizen who never served their republic? Certainly, holding retirees to a standard of second-class citizenship violates our Constitution and fails the test of common sense.
Article 88 poses another problem. With the potential disparity and subjectivity in defining contemptuous speech how could this article be enforced against any military retiree? While Article 88 does offer a three-part test to determine if it should be invoked, it is subjective in what constitutes offensive language or what could discourage military subordination to civilian leadership. This level of subjectivity further chills the speech of military retirees.
There are other constitutional problems. Retirees from the National Guard and Reserve components do not have their first amendment rights taken from them while military retirees who served on active duty do and live under the threat of court martial for violating Article 88 of the UCMJ. This has been legally challenged as a violation of the equal protection clause of the Constitution, but this argument has thus far been rejected by the courts. Nevertheless, this unequal application of the law between military retirees serves to widen the divisions in our force and serves as another reason to abolish this unwieldy application of the UCMJ.
The application of Article 88 is that it may violate some of the most basic tenets of contract law. For a contract to be valid an offer must be made: “An offer refers to the statement of terms and conditions to which the offeror is willing to be bound. It expresses the willingness to abide by certain terms that will become binding as soon as the offer is accepted by the offeree.”In very few instances is this made clear to retirees—that they will have reduced freedom of speech rights for the remainder of their life if they decide to serve until retirement. Therefore, binding retirees to this standard is unlawful.
On the other hand
I have heard two defenses for withholding the freedom of speech rights from military retirees. The first of these is the very act of receiving retirement pay and other retirement benefits comes as part of the stipulation that you may be called upon at any time to re-enter service to our nation. Captains Krishnamurthy and Perez refute this claim by stating that the robust forces of the National Guard and the Reserve components ameliorate the need to recall retired officers. Currently, withholding freedom of speech rights is a lifetime revocation and the recall to active service becomes less likely as a retiree ages, and their knowledge, skills and ability diminish. Certainly, arguing that receiving retirement benefits causes a lifetime of second-class citizenship is rebuffed by these counterarguments.
The second, and potentially stronger, argument is that allowing retirees to speak may indirectly undermine good order and discipline from within the military. Krishnamurthy and Perez explained why this justification for withholding constitutional rights is flawed. They point out that a soldier who serves for 19 years and does not retire from the military is not subject to court martial for disparaging an elected official, but a soldier who retires after 20 years and retires is. In the eyes of an American citizen and of a serving soldier, it may not be easy to distinguish the difference. In addition, as previously mentioned, National Guard and Reserve retirees are not held to this standard and are free to exercise their free speech however contemptuous their language may be. Based on this wide ranging and unequal treatment of active force retirees and those that have long periods of service the argument for maintaining good order and discipline has little to no merit.
Consequences for our Nation
Restricting the freedom of speech for American military retirees is producing undesirable second- and third-order effects. It chills the speech of a very educated class of American citizens with keen insight into leadership and foreign policy. This is counter intuitive. We need to hear these citizens’ voices to have a more robust conversation which may help us elect better leaders and to have a more effective foreign policy. Additionally, restricting the freedom of speech of our military retirees may hinder military members’ pursuit of full careers once they realize it includes limitations of their Constitutional freedoms for the rest of their lives.
Finally, the lack of veterans serving in Congress is concerning. Could it be that the potential of being court martialed for uttering contemptuous words may make military retirees less inclined to enter another national political service to our nation? For instance, while running for office or in the halls of Congress a military retiree could feasibly be held liable for uttering contemptuous words against a political opponent, but their political opponents, who may have never served in the armed forces, do not face the same restrictions of their first amendment rights and the threat of legal action. This is unwise and could well be preventing educated and experienced leaders from serving in positions that could benefit our nation. Restricting the Constitutional rights of military retirees is wrong. It is shortsighted, and in the long term it will prevent our most experienced retirees from engaging in their civic responsibilities and it will prevent our best and brightest from joining the military and making a career of it.
George R. K. Acree is a retired U.S. Army colonel and is currently an Assistant Professor at the U.S. Army Command and General Staff College, Fort Leavenworth, Kansas. He earned a bachelor’s degree from Lincoln University (Cum Laude), and he has earned two master’s degrees, one from Webster University and the second from the Army War College. COL Acree also earned a graduate certificate from the Naval Post Graduate School. He served in the U.S. Army for over thirty-three years, where he spent eight years in the enlisted ranks and then spent the remainder of his service in the officer ranks. His service spanned both combat arms and combat service support and he served in the Active Service, the Reserves and in the National Guard. COL Acree successfully served in various assignments in the United States, Germany, South Korea, and Iraq.
The views expressed in this article are those of the author and do not necessarily reflect those of the Command and General Staff College, the U.S. Army War College, the U.S. Army, or the Department of Defense.
Photo Description: Members from a local Veterans of Foreign Wars (VFW) chapter render a salute during a ceremony for National POW/MIA Recognition Day at the National Memorial Cemetery of the Pacific, Honolulu, Hawaii, Sept. 21, 2018. National POW/MIA Recognition Day, first established in 1979 through a proclamation from President Jimmy Carter, is an observance to honor and recognize the sacrifices of those Americans who have been prisoners of war and to remind the Nation of those who are still missing in action. DPAA is conducting worldwide operations to provide the fullest possible accounting for those classified as still missing.
Photo Credit: U.S. Air Force photo by Staff Sgt. Leah Ferrante