Almost 2 million U.S. military retirees are currently subject to military criminal jurisdiction (courts-martial) for any alleged misconduct, in addition to their state and federal criminal exposure. This military jurisdiction is not just for crimes committed while they are were on active duty and discovered later, nor is it only for uniquely military crimes. It is total. Every military retiree can be court-martialed for behavior engaged in long after they took off their uniform, due only to the fact that such retirees receive a military pension.
This troubling overreach poses grave constitutional concerns. The military justice system not only utilizes unique (often substandard) criminal procedures, it also includes an incredibly broad expanse of uniquely military crimes. Its penal code includes both common law crimes like murder and theft, plus offenses that simply aren’t crimes in the civilian arena, ranging from adultery to being late to work. The U.S. Supreme Court should take advantage of a current opportunity to fix this aberration by granting a military retiree’s pending court-martial appeal.
For example, should retired Admiral Bill McRaven, the famous former US Navy SEAL and previous commander of Special Operations Command who oversaw the Osama Bin Laden raid, be criminally prosecuted for publicly taking issue with President TrumpDonald TrumpFormer Sen. Heller to run for Nevada governor Overnight Defense & National Security — Milley becomes lightning rod Joint Chiefs Chairman Milley becomes lightning rod on right MORE in his widely-cited August op-ed? Of course not. He can’t be so charged in any civilian jurisdiction because the First Amendment shields Americans from jail time for uttering or writing disparaging words about their political leaders. This shield has become one of our strongest civil liberties.
However, while American civilians have robust speech rights, Americans in uniform do not. Service members can be court-martialed for a wide swath of speech that is constitutionally protected for civilians, such as retired Admiral McRaven’s op-ed critical of the commander-in-chief. Since the military justice system extends to its retirees (and has been increasingly used to court-martial such pensioners), purely military crimes like contemptuous speech and conduct unbecoming an officer extend to all military pensioners. This is wrong three times over — on the constitutional front, the fairness front and the necessity front.
Yes, the military should be able to prosecute its troops when necessary. Most Americans exposed to high-profile courts-martial understand the necessity of a special military justice system. Most typical crimes committed by service members, such as theft, assault, and drug use, destroy the military’s valuable good order and discipline. So does conduct (including speech) that isn’t criminal outside the military, like being late to work, desertion, failure to obey and insubordination. Such breakdown in unit cohesion risks mission failure and jeopardizes national security, and hence must swiftly be punished by the special community it most directly harms.
This nexus between harmful conduct and its deleterious effect on military discipline justifies crimes within the military that are untenable outside of it, such as misbehavior by a sentinel or adultery. It also supports military crimes that would be plainly unconstitutional outside the military. For example, disrespect toward a superior commissioned officer, sexually-harassing speech and words contemptuous of the president or Congress are each military crimes that constitute First Amendment-protected speech if uttered by a civilian. The direct connection between such speech by those in uniform and its resultant harm squares these crimes with current free speech jurisprudence.
But this strong nexus exists only for those actually in uniform. For military retirees, the potential negative effect of a pensioner’s conduct on good order and discipline is too speculative and sketchy to justify putting aside constitutional safeguards, both procedurally and substantively. The military argues that this anachronistic retiree jurisdiction is based on the illusion that a military pension is a type of retainer pay, requiring retirees to be ready to be involuntarily recalled to active duty when needed. The Supreme Court squarely disagrees, at least in the tax context, instead characterizing military retired pay as a pension for services rendered. In further rejoinder to the military’s argument, the military reserves are the forces that stand ready — and drill regularly to remain ready — to be called to active duty when national security demands, not octogenarian retirees.
If and when a military retiree engages in criminal conduct, the state or U.S. attorney should appropriately prosecute him or her, not the military through a court-martial primarily designed for swift imposition of punishment for offenses harmful to the services. Hopefully the U.S. Supreme Court will take advantage of the case before it to end this unfair overreach. If not, Congress must act to end this unconstitutional military criminal jurisdiction over military retirees who are civilians receiving a monthly check for proud service rendered to their country.
Rachel E. VanLandingham, Lt Col, USAF (ret.), is a professor at Southwestern Law School and vice president of the National Institute of Military Justice.