Military Justice

American Democracy, Coups and Retired Generals

By Rachel E. VanLandingham
Thursday, July 1, 2021, 10:48 AM

Retired U.S. Army Lt. Gen. Michael Flynn recently seemed to call for a military coup in the United States, Myanmar-style. Disturbing, yes. A decorated former senior military officer (and short-lived national security adviser) publicly advocating for the end of American democracy is jarring, and makes one wonder if those currently in uniform might agree. Flynn’s comment has since been strongly condemned by congressional Democrats and a few Republicans (perhaps not surprisingly, by those who also criticized former President Trump’s role on Jan. 6).

While startling, Flynn’s comment was not a crime. His seeming endorsement of a U.S. military coup is also not a harbinger of the end of civilian control of an apolitical military, and while the remark should be condemned for its stupidity, it should also be celebrated. This is because one of the great strengths of the United States is that the Constitution allows people to say what they want to, even if disturbing or offensive. Americans are largely allowed to believe, teach and speak what they want to, whether that is a belief that the government should be replaced by the military, or that former President Trump posed a grave danger to the nation. 

Despite this national strength of free speech, Flynn’s comment, as well as other recent public statements by former senior military leaders, has garnered much negative attention. This has included calls for criminal prosecution, recommendations that former military officers be stripped of their government pensions for their speech, and even general concern expressed for the health of civilian control of the military, all because of former military officers’ engagement in the polity. Such condemnation must be resisted: Not only is it not warranted, but it also is the wrong tack to take in America’s democratic, pluralistic national experiment, as I explain in this post.

Praising military coups stands out for its absurdity, but loud political engagement by retired military brass is not new. Nor does it occur on only one side of the political spectrum nor pose a danger to U.S. democracy (see here for an excellent historical analysis of this last conclusion). While not the focus here, it bears mentioning that numerous former generals have run for the presidency, some successfully, such as Presidents Zachary Taylor, Ulysses S. Grant and Dwight D. Eisenhower, and many unsuccessfully, such as retired Army Gens. Douglas MacArthur, Alexander Haig and Wesley Clark. Former senior military leaders have also commonly endorsed political candidates for the highest office.

Aside from (and more frequently than) those who ran for public office, there has long been high-profile public engagement, often critical of the then-current administration, by former senior military officers. In the post-World War I era, retired Army Gen. George Van Horn Moseley comes to mind. Besides being a well-known radical anti-Semitic white supremacist, he was loudly critical of the Eisenhower administration. In the 1960s, retired senior officers like Marine Corps Gen. David M. Shoup and Army Lt. Gen. James Gavin were sharply critical of the Vietnam War and then-President Johnson. In 1978, retired Army Maj. Gen. John K. Singlaub continued to publicly criticize then-President Jimmy Carter’s military decision-making after being forced into retirement for earlier such comments. Retired Adm. William J. Crowe, Jr., former chairman of the Joint Chiefs of Staff, publicly condemned the military for its anti-gay bias as well as criticized President George H.W. Bush and later strongly condemned President George W. Bush’s Iraq War leadership. 

More recently, retired Adm. (and Navy SEAL) Bill McRaven’s 2018 op-ed critical of Trump was the focus of much discussion, as well as retired Marine Corps Gen. James Mattis’s 2020 criticism of the then-president. Earlier this year, more than 100 retired flag officers (former generals and admirals) signed an open letter that cast doubt on President Biden’s fitness to lead (it also questioned the validity of the 2020 elections, while repeating several other far-right talking points). 

Many Americans likely feel some cognitive dissonance when they witness former senior military leaders make comments like Flynn’s or the 100 letter-writers’, or even McRaven’s and Mattis’s, that should never be uttered by someone currently in uniform subject to civilian control. Yet this jarring effect does not justify punishing these former military leaders—now civilians—for their First Amendment-protected speech. Indeed, U.S. democracy is strengthened by hearing what these folks have to say, even if some of their views are repugnant. Comments or tirades by former generals who question the sitting president’s legitimacy, or endorse political candidates, or seemingly endorse a military coup, cannot alone damage U.S. democracy. At least such speech cannot damage democracy, or the military, to the point at which censorship through criminal law should be resurrected along the lines of provisions of the reviled (and in part now unconstitutional) Sedition Act of Red Scare vintage. 

Instead of recognizing how and why the First Amendment protects such speech, there have been warnings that the public may trust the military less due to retired flag officers’ speech (is that a bad thing?), and even reactionary chatter about the possibility of court-martialing Flynn for his coup comment. While some such calls ignore the concept of why the U.S. has protected speech, some also seem personally motivated (the brother of one of the authors of this piece was treated horribly by Trump and crew, so his defense of the legality of court-martialing Flynn is understandable). 

Given the plentiful negative examples of historic speech suppression in America—from the original Alien and Sedition Acts under John Adams, to Civil War military trials of civilians for speech crimes, to prosecutions during the Red Scare, to Cold War speech suppression—it’s important to ask why some are calling for a court-martial for a former senior military officer, a civilian. 

First, speech like Flynn’s (and that of the cabal of retired flag officers who wrote this open letter) raises concerns about the rightful place of the U.S.’s enormous armed forces in its democracy. More on that appropriate concern below (it is a valid one but has the wrong target). 

Second, what Flynn said is not a crime in any civilian court, due to the Supreme Court’s speech-protective First Amendment jurisprudence—meaning that the only avenue for criminal prosecution is a court-martial. There is simply nothing for a federal or state prosecutor to charge (that will stick, at least). Flynn did not solicit anyone to commit a crime, nor did he cross the line to incitement. The Supreme Court in its famous 1969 Brandenburg v. Ohio decision makes clear that for speech to constitute criminal incitement, it must be both “directed at inciting or producing imminent lawless action” and be “likely to incite or produce such action.” Even if Flynn did intend his coup comment to prompt a military take-over of the civilian government (doubtful), there was no likelihood that his remark would produce such criminality, never mind cause it to occur imminently, which is what the First Amendment per Brandenburg requires.

However, Brandenburg is not the test for the military, as those in uniform do not get the full benefit of the U.S. Constitution that the rest of Americans enjoy. The military criminal code criminalizes a far greater swath of speech than what is constitutionally criminalized for civilians—largely for good reason, as I’ve previously analyzed. Whereas civilians can tell their bosses to go to Hades (bosses can fire them), if soldiers tell their superiors the same thing, they could be court-martialed. Military criminal prosecution of such speech is necessary due to the military’s need to ensure that its hierarchical chain of command and lifeblood of obedience to orders remain strong. Another military speech offense, based on similar rationale plus the preservation of civilian control of the military, is for military officers to use contemptuous words against the president and certain other public officials. The military criminal code also has sweeping (though overly broad) offenses that criminalize conduct, encompassing speech that is “prejudicial to good order and discipline” or that is “service discrediting,” including what the military calls “disloyal statements.” (The military code also criminalizes sedition, but as adroitly noted by a leading military law expert here, Flynn’s conduct does not come close to meeting this crime’s elements.)

So the military criminal code provides broad subject matter jurisdiction for what is otherwise First Amendment-protected speech (though the Supreme Court hasn’t looked at the contours of what is constitutional in the area since the Vietnam era under the highly deferential Rehnquist Court). And here’s the kicker and third reason why some folks have called for Flynn and other retired military officers who speak out to be court-martialed: Current law allows the military to haul old military retirees out from their civilian lives simply to court-martial them. This aberrant personal jurisdiction is for offenses committed before or after they left military service and even for offenses that are not crimes in the civilian world—such as Flynn’s speech, or McRaven’s or those noisy recent letter-writers

Hence there is personal jurisdiction as well as apparent subject matter jurisdiction to strip civilians, who earlier served their country, of their First Amendment protections by court-martialing them for their speech—speech that cannot be so punished in civilian courts. While there’s growing appreciation that this strange retiree personal jurisdiction is unconstitutional—this according to a district court’s recent holding and as experts argue here in that case’s pending appeal—it is currently on the books to be used (though such prosecutions are exceedingly rare and even rarer for former officers in contrast to enlisted service members).

So if the First Amendment protects speech such as Flynn’s and the retiree letter-writers’ except in the constitutionally suspect situation of a rare retiree court-martial, what has prompted calls for military prosecution? 

The leading cause is likely fear—fear that this and other political speech by former military officers threatens the relationship between the United States’ civil authority and its powerful armed forces. Indeed, some scholars have repeatedly decried other such political speech by former senior military leaders as not just harmful to U.S. constitutional democracy, but gravely so—it’s been labeled a threat. Noted experts in civil-military relations fear that former military leaders’ words may influence those currently in uniform, thus eroding the apolitical nature of the military; degrade public perception of the military; sow mistrust between current senior military leaders and their civilian overseers in the executive and legislative branches; and, ultimately, endanger civilian control of the military itself. 

Yet the likelihood of such potential harm is overlooked, and the experts fail to ask whether any such speculative harm is outweighed by the benefits of hearing from those who served their nation in senior uniformed leadership positions. They have not analyzed whether such speech is a net positive for the American experiment, having largely ignored the First Amendment altogether. 

When thinking about the harm potentially caused by former senior military officers’ speech, it’s important to consider the founding principles surrounding civil-military relations. The Founders embedded their strong fear of standing armies into the Constitution. Civilian control of the military, with national security powers divided between the president and Congress, is a direct result of that worry. A corollary is an apolitical military as an institution, one that does not align with or appear to endorse any political party, partisan issue or political candidate. While individual active military members are encouraged to exercise their voting rights, and can express political opinions in their personal capacities, they are subject to strict rules designed to ensure that their personal participation in political events is not misconstrued as military endorsement of the same. Related to both of these principles is the concept of “best military advice”—that military members are a professional corps whose senior leaders provide their best professional advice regarding military options, sustainment issues, and more to civilian leaders in the White House and in Congress without regard to political winds and without currying favor due to thoughts of post-military career options.

As civil-military relations experts have recently warned, there are cracks in the solidity of that bedrock principle of civilian control of the military and worrying signs that the apolitical military isn’t as apolitical as it should be (the recent federal criminal charging of an active-duty Marine officer who allegedly participated in the Jan. 6 insurrection speaks to that). Scholars and pundits give various reasons for such fault lines, including partisan political speech by current military members online, the appointment of two recent defense secretaries who had not yet been retired from the military for the statutorily required seven years, exploitation of military service as well as active-duty support by politicians, the extreme veneration of the military by the public, the lack of sufficient congressional and executive branch oversight of the military, retired former senior military officers’ political expression, and other dynamics. 

As noted in this long list of causes of a weakened state of civilian control of an increasingly politicized military, retired military officers’ public speech, particularly their political expression such as that in the former flag officers’ letter or in Flynn’s many disturbing remarks, is only one reason cited among many—and a highly speculative cause at that. This alleged contributing factor is where we run squarely into another founding principle of American democracy, one already mentioned. The First Amendment’s freedom of speech, particularly its core protection for political speech, is also a bedrock of the United States’ democratic experiment. Its modern contours developed greatly in the 20th century following its continued breach by those who viewed a huge swath of disliked speech as a national security concern (see the aftermath of the 1918 Sedition Act for that history). 

The First Amendment protects, for good reason, the political speech of former generals that bothers so many. The normative foundation of the principle of free speech explains why these former senior military leaders’ speech shouldn’t be cast in terms of constituting a danger to national security. Political speech is valuable, and its necessity in a democracy demands protection, even when there is risk of resultant harm. By punishing one, other speakers will be chilled. Those deterred may be the very ones the public needs to hear from, to learn from their vast and highly specialized experiences, such as those who spoke out against Vietnam and condemned the military etablishment’s homophobia. In this context, retired generals’ political speech, even that which is inaccurate and anti-democratic, is protected—despite speculative harm to the complex dynamic of civilian control of the military, to an apolitical military, to public confidence in the armed forces, or to the morale and discipline of those currently serving. 

Yes, there is a chance that congressional leaders will look at today’s senior uniformed military leaders answering their questions on the floor of Congress with more suspicion, wondering if they share some of the retired generals’ and admirals’ noxious sentiments revealed in the latter’s recent letter. And perhaps some in uniform will hear the discrediting of the current president by retired senior officers and wonder why they should follow such an invalid commander-in-chief’s orders. (Hint: They should check out Article 92 of the Uniform Code of Military Justice for the answer.) 

This first potential result, along with reduced public confidence in the military, need not necessarily be characterized as harmful. What if Congress does look with greater suspicion on those testifying in uniform before it today, because of retired generals’ comments yesterday? Is that suspicion a bad thing, given the deep distrust of standing armies that Congress is supposed to feel, a direct inheritance from the Founders that’s been lost over the years as Congress has ceded power to the executive branch? If some retired senior military leaders’ speech takes the U.S. armed forces down a peg in Congress or in public favorability because it reveals, for example, bigoted and irrational thought—isn’t that recalibration perhaps a good thing? Not that such results are likely, given the tiny numbers of retired military senior leaders that exist. But I raise this possibility to note that perhaps some of the feared harms, particularly the reputational ones, are not harms at all. 

Perhap distasteful speech from folks like Flynn and other former senior military leaders will help reduce the public’s extreme veneration of the military—veneration that has helped contribute to cracks in civilian control as well as skew the outsized influence the military establishment has in the American political constellation. Experts have claimed such an effect, though mistakenly decry it as a bad thing. And as for an increasingly politicized military, is retired senior officers’ speech a cause, an effect or neither? Any potential and highly speculative negative effect in that regard is minimal if it does exist, and part of the price American democracy pays for freedom of speech; the actual causes of politicization are what demand attention (such as exploitation of the military by sitting presidents).

Former generals and admirals, and all who ever served in uniform, once out of that uniform are civilians; as civilians they can and should freely criticize the president as well as robustly speak on any and all political issues. They should expect to be condemned, and hopefully will be, for any offensive or noxious speech. But they should not be censored. Their military experience means something, and it betters U.S. democracy to hear from them. Any harm flowing from their exercise of their First Amendment rights is worth it. If such speech does weaken civilian control of the military, lower the military in the eyes of the public, or somehow lowers good order and discipline in the ranks, the remedy isn’t to threaten to court-martial the retirees or otherwise strip them of the pensions they rightly earned. 

The solution, rather, is more speech, not less; greater exercise of worthy leadership by those currently commanding U.S. armed forces; less political exploitation of the military by elected leaders; and significantly greater oversight by Congress of the day-to-day activities of the U.S. military. Yet it is far easier to rail against some retired general’s comments than it is to devise solutions to the complex issue of the role of the U.S.’s enormous armed forces in its modern constitutional democracy. So expect more calls for restricting former military leaders’ speech in the future. Hopefully such calls will never be heeded, though loud public expression by former senior military officers, both that profoundly insightful, as well as that offensive and disturbing (such as Flynn’s latest), will continue—as it should.

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