One of the unanswered questions in the whole McChrystal drama has been about Vice President Joe Biden. In the Rolling Stone article that’s causing all the fuss, it’s Biden, not Obama, who gets a direct-quote diss from General McChrystal, and it’s Biden’s policy, not Obama’s, that he seems to have had a disagreement with. Biden doesn’t exactly have any military standing, though — so does an insult from a general to a vice president mean anything (particularly when the vice president is an advocate of a policy not taken by the president who is the boss of said general)?
Turns out, yes, insulting the VP is actually outlawed under Article 88 of the Uniform Code of Military Justice, which reads:
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 Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
If actual charges were brought (unlikely), this would actually make Joe Biden one of the more consequential vice presidents of recent times: a 1999 Army Lawyer piece [PDF] by Lt. Col. Michael J. Davidson points out that among the 115 cases in which officers were accused of contemptuous speech, “No prosecutions were initiated because of language directly solely at the Vice President, Congress, or a state legislature.” Davidson also offers the reason why a court martial of McChrystal is exceedingly unlikely: “Since the UCMJ was enacted in 1950 only a single known court-martial has occurred pursuant to Article 88.”
The Navy Times points out that under Article 134 of the same code “makes criminal those acts of speech that are prejudicial to good order and discipline or that could bring discredit upon the Armed Forces.” Article 134 is the catch-all article because, well, that’s exactly what it does:
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.
That broad statement wouldn’t be hard to catch McChrystal or his mouthy (and, in the article, often unnamed) staffers under, but it seems equally unlikely that prosecution will occur.
It seems more likely than it did this morning that something bad is going to happen to Gen. McChrystal, though, court martial notwithstanding. CNN is trying to confirm Joe Klein’s report that McChrystal has offered his resignation, and pundits from all around are lining up to say that he should be fired. While I don’t necessarily disagree with that, I still don’t think this is the offense he should be fired for, and I’m curious as to his dismissal now would solve anything.