Military Justice and Civil-Military Relations Considerations

When asked why “what happened in Minimar [Myanmar] can’t happen here” at a QAnon event…

When asked why “what happened in Minimar [Myanmar] can’t happen here” at a QAnon event in Texas recently, Lieutenant General (retired) Mike T. Flynn responded glibly: “No reason. I mean, it should happen here. No reason. That’s right…” Myanmar has become an odd infatuation in hard right circles since a military coup overthrew a democratically elected government on Feb. 1, 2021. In the recorded video of the event, Lt. General (retired) Flynn appeared through these comments to be suggesting the appropriateness of an unlawful military intervention in the United States to depose a lawfully elected sitting president.  Flynn’s musing was rewarded with resounding applause from QAnon supporters and followers of the former president. His subsequent backpedaling, mere hours later, in no way reduces his culpability for the inflammatory statement as a matter of law.

Rep. Elaine Luria, a Virginia Democrat serving as vice-chair of the House Armed Services Committee and a retired Navy Commander, correctly pointed out that Flynn’s comments were “dangerous” and “incredibly concerning,” adding that she thinks official action against him should be considered. She stated:

Flynn’s remarks border on sedition. There’s certainly conduct unbecoming an officer. Those are both things that can be tried under the Uniform Code of Military Justice [UCMJ] and I think that as a retiree of the military, it should certainly be a path that we consider to have consequences for these types of words.

The Texas comments are only the latest in a string of public statements by Flynn that have raised concerns about his conduct as an officer in the retired reserve.

Yet so far, Flynn’s retired status has protected him from potential consequences under the UCMJ. This essay seeks to fill a vacuum in the ongoing public discourse about whether Flynn could be held legally accountable for his actions and remarks.  Currently, some are calling for his prosecution under military law. Others – in view of his retired status – caution that bringing him back on active duty for court-martial or court-martialing him in his retired status would rest on shaky constitutional ground – not because of the speech regulation involved, but for the UCMJ’s long-arm personal jurisdiction.  What has not been adequately described is how a military prosecutor, advising a court-martial convening authority, might approach this problem.  In the mode of classic advice and consideration for a court-martial convening authority, there are three salient technical legal questions: first, does the conduct allege an offense under the Uniform Code of Military Justice; second, is there jurisdiction over the accused; and, third, is there sufficient evidence supporting the offense (this is a probable cause standard)? This last point could only be answered after a fulsome investigation. This post will outline answers to these questions and suggest a way forward to deal with Lt. General (retired) Flynn.

The Context of the Texas Comments

Flynn’s Texas remarks, made only months following the seditious Jan 6th attack on the U.S. Capitol, are the latest extension of Flynn’s support of the “big lie” that former President Donald Trump won the 2020 election. Flynn, according to public reports, participated in efforts to promote the Jan 6th “Stop the Steal” event that culminated in the anger and falsehood-fueled insurrection. In December 2020, Flynn also promoted Trump’s effort to overturn the election when he told supporters that the United States had reached a “crucible moment” and “there has to be sacrifice,” that his supporters would “need to be fearless as Americans,” and that they were “in a battle … for the heart and soul of the country.”

Flynn’s remarks are in many ways unique in American history in his apparent advocacy for a military-led coup to displace a legitimate civil government.    Perhaps the closest analogy would be the conduct of former U.S. Army generals that supported the insurrection in the South in the context of the America Civil War. Those seditious officers, although certainly of a different magnitude, would have been subject to prosecution in military courts had they not been pardoned by President Johnson.

Had retired Lieutenant General Flynn still been on active duty when he made his remarks in Texas, he clearly would not have been able to claim he was protected from government prosecution by the First Amendment. Political speech by uniformed members is regulated under the law and the Supreme Court has long upheld restrictions on and punishment for inflammatory speech by service members. Like his earlier support for the “Stop the Steal” event and comments about the need for “battle” and “sacrifice,” the Texas comments present a danger even despite his retired status: Flynn’s identity as a general officer, retired or active, carries the gravitas of that rank and reputational credibility. In this context, Flynn’s statement in Texas has earned him serious consideration for legal accountability under the military justice system.

The federal government  has a ready mechanism for dealing with conduct that threatens to undermine “good order and discipline among the troops” or reflects serious breaches of customary norms of officership. That venue is a court-martial: a criminal trial that includes the legally acceptable due process protections (including standards of evidence, presumption of innocence, representation by qualified defense counsel, the opportunity to cross-examine witnesses, the privilege against self-incrimination, and others) afforded civilians in state criminal trials. The application of these procedures to Flynn would be unusual – given his high rank, position in partisan public discourse, and retired status – but neither prohibited nor unprecedented.

Retiree Court-Martial Jurisdiction

Court-martial jurisdiction in the U.S. military is purely based on an individual’s status as a member of the armed forces.  Numerous categories of personnel are subject to court-martial jurisdiction, not just servicemembers on active duty.  For example, cadets at West Point and midshipmen at the Naval Academy are subject to the UCMJ, as are prisoners of war, and reservists under certain conditions. Even some civilians could be court-martialed, provided they are “accompanying the force in the field” during war or a contingency operation (for example, Department of Defense (DoD) contractors assigned to a tactical unit while deployed).

Most relevant to any potential court-martial for Flynn is current, though challenged, court-martial jurisdiction over retired members of a regular component of the armed forces who are entitled to pay. In this case, Flynn is a retired member entitled to handsome pay by virtue of his rank. He is therefore subject to Court-martial jurisdiction for offenses he commits in that status – it does not matter whether the alleged misconduct happened before he retired or afterward, and it does not matter (for the sake of jurisdiction) that his conduct had no direct military nexus (although it is not difficult to see how commentary by military members or retirees that advocates unlawful usurpation of legitimate rule through military means implicates the very interests the UCMJ is meant to protect).

There are litigation efforts underway challenging this broad jurisdiction to recall retirees for offenses committed either during active service or after retirement. These challenges revolve around a legal question and a policy dispute. First, there is the question of whether a retiree’s unlawful acts in fact arise “in the land and naval forces” as defined by Congress, and are therefore subject to military courts jurisdiction. In Solario v. United States the Supreme Court determined that “[t]he jurisdiction of a Court-martial depends solely on the accused’s status as a member of the Armed Forces…”  The Court goes on to say that “The plain meaning of Art. I, § 8, cl. 14, of the Constitution-which grants Congress plenary power “[t]o make Rules for the Government and Regulation of the land and naval Forces”-supports the military status test…” Critics challenge whether a retired service-member is in-fact “in the land and naval forces.”  However, the current state of the law is that retired service-members are in the land and naval forces.

Second, these cases raise a policy question about the need to recall retirees to active duty in order to face justice. Critics of retiree jurisdiction argue that circumstances that led to the establishment of the military’s ability to prosecute retirees under the UCMJ have changed (e.g. since the Civil War retirees are hardly ever called up, the military has created a reserve component, etc.,). They point to the dearth of retiree prosecutions in recent decades as demonstrating the limited necessity for having to call retirees back into active service and argue that retiree recall for court-martial is outdated – despite the fact that a relative lack of prosecutions of recalled retirees could suggest any number of things that have nothing to do with the potential need to recall retirees or the validity of the policy.

Recent history including conflicts in Afghanistan and Iraq provide a poor precedent in a broader historical context and are short-sighted in view of concerns around “Great Power competition.” The U.S. military recently pivoted away from counter-insurgency to focus on potential conflicts with near peer competitors. In the event of such a conflict, the need for forces would much more closely resemble the full mobilizations that occurred during the two World Wars or even the existential conflict of the Civil War. The U.S. military would need all able-bodied Americans to fight, especially those who have previous training and service in the armed forces to support the scale of a conflict involving millions of service-members (at their height, in contrast,  recent counter-insurgency conflicts only involved tens of thousands of service-members). In the event of such a full mobilization of human resources, the military would have no use or desire for retiree service-members who support anti-government activities or sentiments.  Therefore, a policy that provides flexibility and preserves criminal jurisdiction over retired service members is not absurd out of hand. Indeed, this jurisdiction would help to preserve the eligibility of retired service members by encouraging them to show self-restraint and avoid disqualifying conduct.

Future conflicts may require this flexibility to preserve overall force levels, and perhaps more importantly, certain strategic assets. The value of a general officer – retired or not – is in his or her ability to spot, understand, and execute strategic imperatives – in other words, general officers by their very nature are strategic assets. These assets take decades to develop, involving advanced education and training, increasing responsibility, and experience leading diverse organizations and units with a variety of missions and purposes. Flynn himself, as head of the Defense Intelligence Agency (DIA) prior to retiring, was the U.S. military’s senior uniformed intelligence officer.  To achieve this position, he spent decades in roles of increasing responsibility and complexity including numerous deployments to the Middle East and culminating in his leadership of the DIA. Preserving the integrity of these human strategic assets, including through sustained court-martial jurisdiction, is a crucial element of preparation for future conflicts.

This strategic value was illustrated by the recall of General Peter Schoomaker, a retired four-star general who was recalled to active duty during the start of the Iraq war, to be the Chief of Staff of the Army (the senior general in the Army) from 2003-2007. General Schoomaker’s recall was voluntary and not for disciplinary purposes, but the point is that these senior officers are strategic assets in our national security system that may be recalled when needed. Their value is lost when they commit acts that make them unfit for further service.

The Flynn case presents the ultimate counterpoint to the challengers of retiree recall. It is at least possible to argue that his actions and words in Texas undermine the oath he took as an officer to support and defend the Constitution.  As a general officer in the retired reserve, he has an obligation to continue fulfilling this oath of office, if nothing else. This is especially true given his continued entitlement to enjoyment of the rank of lieutenant general and to wear the uniform in retiree status.

Notwithstanding the two pending cases challenging jurisdiction over retirees, as the law stands now, Flynn is within the jurisdiction of a potential court-martial by virtue of his retiree status. However, beyond this jurisdictional threshold, any court-martial would have to allege specific conduct in violation of the UCMJ. So, what crime(s) could potentially be charged, and what would be the implications of a possible prosecution on civil-military relations?

Crimes Potentially Implicated

In the UCMJ, there is no dearth of charges a military prosecutor might consider implicated by speech like Flynn’s. Article 94 prohibits and punishes sedition, Article 82 prohibits and punishes solicitation to commit illegal acts, including sedition, Article 133 prohibits and punishes “conduct unbecoming an officer and a gentleman,” and Article 134 prohibits – among other things – disloyal statements when they are “prejudicial to good order and discipline” or “are of a nature to bring discredit upon the armed forces.” The most compelling of these offenses are what would be considered the strictly military offenses, that is, those that do not have a parallel violation in a civilian justice system.

For example, Article 134 is a catch-all charge that allows commanders to deter and punish the kind of conduct that detracts from their ability to sustain morale, cohesion, and obedience to lawful orders, as well as for conduct that – in the view of a hypothetical public – could undermine or sully the armed forces’ reputation.  The Article 134 “disloyal statements” offense  requires certain elements be proven beyond a reasonable doubt: that an accused made a certain statement; that the statement was communicated to another person; that the statement was disloyal to the United States; that the statement was made with the intent to promote disloyalty or disaffection toward the United States by any member of the armed forces or to interfere with or impair the loyalty to the United States or good order and discipline of any member of the armed forces; and that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

On their face, statements suggesting that an armed military-led coup to overthrow the United States’ legitimately elected commander-in-chief to a crowd could meet these elements. In fact, the participation of active-duty military members in the January 6th insurrection supports the argument that rhetoric like Flynn’s prior to that event was not only suggestive but elicited seditious behavior that could meet the elements and their definitions under Article 134. Only a full investigation could determine whether there was a causal link between Flynn’s exhortations and the conduct of service-members during the January 6th attack on the capital.

Article 133 is another broad punitive article which is likewise punishable only in the unique professional community of the military. The offense is committed when any accused commissioned officer (and this would, per Article 2 of the UCMJ, include retired commissioned officers) did or omitted to do certain acts; and that under the circumstances, these acts or omissions constituted conduct unbecoming an officer and a gentleman. Although there has been public skepticism, including on this forum, of charging Article 133 violations in Flynn’s case,  I would much rather prosecute the charge of violating Article 133 given these facts than defend them. It is hard to imagine conduct more compromising to the standing of a general officer in the U.S. military than advocating for the overthrow of a democratically elected government with a military coup. Further, charging just the strictly military offenses of violating Article 133 or 134 cures any potential issue of preemption which prohibits the charging under general articles those offenses that could be charged under specific articles (i.e. Article 92 sedition).

While the type of ambiguity inherent in charges of violating Articles 133 or 134 may fatally doom the charge in the civilian criminal justice system, these offenses are subject to punishment at court-martial and could certainly be pressed by a clever judge advocate. The penalty for the most serious offenses enumerated above includes death or imprisonment for life, dismissal from the service and total forfeitures of pay and entitlements. For the general offenses, Articles 133 and 134, the penalty would still include dismissal from the service.

The Argument for a Court-Martial

So far, much of the commentary around Flynn’s possible court-martial jeopardy focuses on the fraught politics involved in recalling him and the legal argument that retiree court-martial jurisdiction – for any retiree – is unconstitutional. What’s missing has been a frank discussion of whether statements such as those he has made can degrade or prejudice the armed forces’ actual discipline (even if only among a few violent breachers of the Capitol), the public’s esteem for an independent, non-partisan armed forces, and the customs and norms that impose an exceptionally high, but achievable, standard of care and responsibility on officers both active and retired. In the context of retiree jurisdiction that, while under challenge, continues to be the law today, these latter considerations should be paramount. While Flynn could certainly be held accountable for some of his actions in a civilian Article III court, the choice of military court venue uniquely addresses the needs of the force to maintain good order and discipline and for leaders’ accountability for violations of uniquely military offenses.

If there is a decision to pursue a court-martial in this case, it should not be hindered by the false concept that the legal foundations of retiree jurisdiction are unsound. Those legal foundations are still firm. The lack of recent retiree recall cases underscores that in many situations such jurisdiction is unnecessary and should calm fear that this prosecutorial tactic will be wielded haphazardly. Seditious speech calling for the disruption of the nation’s civilian leadership through military force must be taken seriously – that’s why it is a crime under both “regular” federal law and the UCMJ. Such speech from a civilian is deleterious to the national security; however, when the remarks come from a retired general officer they are especially corrosive to that which sustains a credible, effective, and trustworthy fighting force – and to the maintenance of a military subordinate to legitimate civilian political authority regardless of partisanship or policy.

Civil-Military Relations Implications

If the Pentagon – specifically, the Army’s Office of the Judge Advocate General and the Secretary of the Army – are contemplating prosecuting Flynn under the UCMJ, the public should expect that the calculus will not be arbitrary.  At the direction of Congress, the president has promulgated a list of generic factors that commanders and their advising judge advocates should consider before deciding whether and how to prosecute any given case.  By executive order, this list of non-binding disposition factors is meant to balance the chain-of-command’s demanding interests in maintaining good order and discipline for the sake of mission readiness and mission accomplishment and the equally demanding (though for other reasons) civil rights of the accused.  These factors are almost identical to the prosecutorial standards and norms found in the American Bar Association’s Criminal Justice Standards for the Prosecution Function, the National District Attorneys Association’s National Prosecution Standards, and the Department of Justice’s Principles of Federal Prosecution. 

However, several factors are unique to the quirks and demands implicit in military justice: “the mission-related responsibilities of the command;” “whether the offense occurred during wartime, combat, or contingency operations;” the “effect of the offense on the morale, health, safety, and good order and discipline of the command;” and the “impact and appropriateness of alternative disposition options . . . with respect to the accused’s potential for continued service.”  Those quirks and demands have been held, by the Supreme Court, to support a separate criminal justice code that contemplates punishing certain actions or speech otherwise protected by the Constitution.  Nevertheless, some considerations are deemed “inappropriate” and therefore ought not influence the prosecutorial decision: among them, “lawful political association, activities, or beliefs,” and “political pressure to take or not to take specific actions in the case.”  That is to say, each case should be decided on its own case-specific facts and legal merit, not partisan-based political management nor the political values of the accused.

Nevertheless, the term “political” is not defined in the disposition guidance, or anywhere in the UCMJ or Manual for Courts-Martial, and the disposition factors listed by the president at Congress’s request are salutary but only advisory.  It is worth noting that, while advocating sedition may be a form of “political association, activity, or belief,” it is by definition not lawful.  Ultimately, any decision with regard to Flynn – to prosecute or not – is a “civil-military relations” dilemma, and not just a constitutional question of whether Congress can and should exercise legal jurisdiction over retirees. There are at least three related issues that warrant discussion as prosecutors consider the impact on civilian-military relations of a potential court-martial for Flynn: norms of civil-military relations, the signaling function of such a prosecution, and the standards of professionalism.

Norms

First, nothing in the Constitution, statutes, case law, military doctrine, or military regulations specifically lay out what the civil-military relationship is “supposed to be” in day-to-day practice.  It is as Justice Jackson said of the presidency in his Youngstown Sheet & Tube v. Sawyer (the “Steel Seizure Case”) concurrence: we “may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves.” Article I and Article II of the Constitution grant legitimate civilian political authority, in the form of Congress and the president, the power to determine military affairs from war-waging strategy to personnel management. The UCMJ is, after all, a federal statute constantly under revision and scrutiny by Congress; it delegates many quasi-prosecutorial authorities to the executive branch; it even creates its own judiciary that includes, ultimately, civilian judges.  Laws also prohibit military members from engaging in partisan activity in their official capacity, and the military’s own “sedition” statute criminalizes acts undertaken “with intent to cause the overthrow or destruction of lawful civil authority, in concert with any other person, [which cause] revolt, violence, or any other disturbance against that authority.”

But nothing outlaws a retired general officer from personally running for political office or speaking at political rallies to complain – whether reasonably, unreasonably, or in a way that spreads baseless and absurd conspiracy theories  – about current administration policies or the individual members of the government.  This conduct has been, however, constrained by norms until recently. Norms, according Harvard Law professor Daphna Renan, are “unwritten rules of legitimate or respect-worthy behavior,”  Only norms, generated over decades and reflecting shared personal and institutional values, have tended to shield the public from the perception of a hyper-partisan, or even dangerously seditious, ex-general stoking embers of public discontent.  But as research from historians and political scientists has shown, and as headlines reveal, those norms have been eroding for some time.  Notwithstanding their decreased power to regulate behavior, breaking such a norm could be interpreted, as Fred Kaplan recently wrote, as “conduct unbecoming an officer,” a prohibited category of behavior that has itself long been part of the military’s disciplinary norms. Given the relative paucity of black letter law on how the civil-military relationship ought to operate, these guiding norms are important enough to consider protecting with tools available to the military justice system.

Signaling

Second, there is a great danger that the public may tend to associate the position taken by a high-profile retiree, speaking authoritatively with assumed military credibility, with the rest of the active-duty military, or at least its senior leaders currently still in uniform. Indeed, research has demonstrated that much of the public does not consciously distinguish between the things senior active-duty officers say or do from those of retirees. Mike Robinson wrote that “retired officers with the imprimatur of the institution are ubiquitous figures in politics as appointed officials, media commentators, and political activists, despite norms against such behavior.”  This association is nothing new, and is at least partly the consequence of political elites “lionizing” the armed forces for ostensible partisan advantage.  If the public generally does not distinguish between retired and active-duty officers in their perception of these officers’ conduct, then the armed forces’ reputation for non-partisan subservience to civil authority is – at best – subject to skepticism and incredulity.

The appearance of active-duty support for the likes of Flynn and what he has advocated is enough to drain public support and confidence in its military which usually maintains high degrees of both.  That support and confidence are – to put it mildly – fairly important for recruiting and retaining high quality enlistees and officers from a broad cross-section of the American landscape.  Under this view, Flynn’s inadvertent or deliberate messaging could be thought of as “conduct of a nature to bring discredit upon the armed forces,” another civil-military relations concern long embedded in the military’s criminal code. An appropriate response to the highly partisan political signals being sent by Flynn would be a countersignal from the armed forces’ military and civilian leadership to indicate to the public that Flynn’s conduct does not represent the military.  A court-martial would be an unusual, but highly visible, way to send that signal, carrying significant consequences for him personally.  Afterall, Flynn’s behavior is also both unusual and highly visible, and carries significant consequences for the profession of arms and the public’s trust in it.

Standards of Professionalism

Third, the kind of opinions publicly offered by Flynn should be distinguished from the  professional dissent, disagreement, or even disobedience in the exercise of moral agency that helps characterize the roles and expectations of senior military officers in the exercise of their official duties.  Those who might suggest that Flynn is merely (though passionately) offering a form of expertise-laden dissent and performing a duty informed by his decades of experience as a military intelligence professional and leader have it wrong.

A true professional, in the role of an expert “agent” working on behalf of another principal, adheres to various fiduciary-like duties, such as care, candor, competence, loyalty, and diligence.   We could call this the Three Rs Standard: a professional is respectful of the principal-agent relationship to which they belong; a professional recognizes (by conforming to) norms that have come to give shape to that relationship over time; and a professional accepts and adopts a responsibility to the public writ large that their membership (current or former) entails.  This responsibility includes protecting the service-oriented functions and service-oriented reputation of that profession so that it remains trustworthy enough to be used wisely. This standard, as two giants of civil-military relations Samuel Huntington and Morris Janowitz both believed, is fundamentally no different than that governing other citizens possessing specialized training, expertise, and experience who work in service of the public: doctors and lawyers.

Ironically, it is Flynn’s own long experience in uniform as both a national security practitioner and advisor that indicts him: his actions and words demonstrate a knowingly culpable disregard for all three of the rules in this “standard.”  It is axiomatic, at least to military professionals, that a professional’s duty is to follow and enforce the standard. Flynn’s failure to do so indicates that he has abandoned a core aspect of the very professional identity on which he bases his claims to credibility. Accordingly, it would be appropriate to initiate proceedings to publicly divest him of this claimed authority.

Ultimately, the dilemma of what to do about Flynn’s comments suggests that there is far more at stake in the decision over Flynn’s inane and incendiary polemics than whether the evidence supports a charge under the UCMJ and whether he could legally be tried by court-martial.

What Flynn has argued for is not merely partisan grandstanding or wonk-ish policy advocacy of interest to few political elites; Flynn has openly suggested that crimes should occur, the target of which would be the very government still sending him paychecks, for reasons and with methods that are directly contrary to the Constitution he swore an oath to uphold when he first commissioned as a lieutenant and at his eight subsequent promotions in rank.   In this light, any decision over what to do – legally – with Flynn must account for the civil-military relationship rules and norms his actions have implicated.  Doing so fully comports with the considerations that the Manual for Courts-Martial already acknowledges are particularly relevant to military justice: “the effect of the offense on the morale, health, safety, and good order and discipline of the command;” and the “nature, seriousness, and circumstances of the offense and the accused’s culpability.”

Conclusion

The ongoing debate about whether Flynn could or should be held accountable for his actions must consider the fundamental purpose of the military justice system, which is to maintain good order and discipline in the force. This discourse must be based in the law as it now stands, not what some commentators and advocates wish the law to be. Only when a comprehensive inquiry determines there is sufficient evidence to support an offense under the UCMJ – committed by an actor subject to the lawful jurisdiction of a military court –  will an appropriate military convening authority be in a position decide whether to court-martial Lieutenant General (ret.) Flynn.

Full consideration of the facts, law, and policy will re-establish the nuanced balance in civil-military relations to ensure service members remain in a position to serve if called upon. Speech by military members in retiree status cannot go so far as to violate prohibitions in the UCMJ, especially when the retired member continues to enjoy the privileges of that highly regarded status.

Disclaimer: The opinions and analysis in this essay represent those of the authors in their personal capacity based on both professional experience as judge advocates and their scholarly interests in military justice and civil-military relations.  They do not represent the official views or positions of the Army Judge Advocate General’s Corps, or those of any particular organization they are employed in, and should not be considered in any way legal advice or an opinion on the wisdom or prudence of any particular course of action in this matter.

Editor’s note: For a different view, readers may be interested in Eugene R. Fidell’s Getting Real About General Flynn.

Image: WASHINGTON, DC – DECEMBER 12: Former General Michael Flynn departs a protest of the outcome of the 2020 presidential election outside the Supreme Court on December 12, 2020 in Washington, DC. (Photo by Tasos Katopodis/Getty Images)