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When Gen. Stanley McChrystal, commander of U.S. and coalition forces in Afghanistan, shows up in disgrace at the White House Wednesday for his highly anticipated meeting with President Obama, he is certain to hear about his commander in chief's displeasure — and may even be fired or feel obliged to resign.
But a close reading of military law suggests that an even more drastic remedy is theoretically available to Gen. McChrystal's superiors to punish him for denigrating senior members of the administration in interviews with Rolling Stone magazine — court-martial.
Section 88 of the Uniform Military Code of Justice says that any officer who uses "contemptuous words" against the president, vice president, Congress, the Secretary of Defense, or certain other officials "shall be punished as a court-martial directs."
Although the most biting and insubordinate criticisms in the article come from unnamed McChrystal aides, the general himself speaks disrespectfully about the vice president, joking he would answer a question about him: "Joe Biden … who's that?"
A 1999 article in the Legal Times noted that since the enactment of the UCMJ in 1950, only one court-martial under the provision had taken place — that of an Army Lieutenant who held a sign during a demonstration against the Vietnam War denouncing President Lyndon Johnson as a fascist.
But the article also records that, during the 1990s, several officers were fired, reprimanded or subjected to lesser penalties for "making disrespectful comments about President Clinton."
Mr. Clinton "stands in good company," the article goes on, noting that "Members of the military have been prosecuted for openly criticizing Presidents Lincoln, Wilson, Coolidge, Roosevelt, (and) Truman," in addition to Johnson.
Eugene Fidell, one of the country's foremost scholars of military law and president of the National Institute of Military Justice told the American Prospect that McChrystal's words in the Rolling Stone article don't "make the needle bounce under Article 88," but adds that an officer at the general's level "has to set an example … McChrystal has to resign or retire."
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