look I think McChrystal new exactly what he was doing, inviting the left wing rag to trapse around with him, and I have no real issue with Obama relieving him, however it is stupid to think this is an article 88 offense. Just ask some of us who have served, k?
I appreciate that, and I realize that only a single instance of an article 88 violation has ever been prosecuted. But does that mean McChrystal's words didn't constitute a violation, just because actual prosecution on this article is rare? Let's look at the law, shall we?
Article 88 UCMJ said:
“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.”
Contemptuous words about the President and Vice-President, check.
Article 88 UCMJ said:
"(1) That the accused was a commissioned officer of the United States armed forces;"
Check.
Article 88 UCMJ said:
"(2) That the accused used certain words against an official or legislature named in the article;"
Check.
Article 88 UCMJ said:
"(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and"
I'd say that's a big check, considering that it came out in Rolling Stone. Moreover, if you look at this text it doesn't just say "made to a media outlet" it says "came to the knowledge of a person other than the accused." So he can say what he likes about Obama looking at himself in the bathroom mirror, unless somebody is within earshot. And if he made such disrespectful remarks to a reporter, you have to wonder what he said to others in private. One wonders what an investigation would yield in this regard.
Article 88 UCMJ said:
"(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used."
I've been over this earlier in this thread, but let me revisit it, since it's the real sticking point. Were the words "contemptuous?" What does "contempt" mean anyway? As Tex pointed out, our friend the Yale professor acknowledges that they were disrespectful. I think we can all agree that they were disrespectful. The USMCA in USA v. Howe, the only case tried on an article 88 violation, held that the word "contemptuous" was used in its plain dictionary meaning. Look in a dictionary under "contempt" and what do you find? Lo and behold, it means "disrespectful." So, check.
I realize that those of you who serve and have served are in a unique position to understand the culture of the military, and those of you who have given this country your service have my everlasting respect and gratitude. But you don't have to have served to be able to read the law.
So, on analysis, I don't see how any reasonable, unbiased person can argue it
isn't an article 88 violation. Will he be prosecuted on it, likely not. But that doesn't change the facts.
Howe isn't a direct parallel, but that doesn't mean that there is "nothing to compare." Indeed, I've said repeatedly that what we are comparing is the standard for "contempt" under Article 88 as the court made clear in Howe means "disrespect."