Military Law Expert: McChrystal Wasn't Insubordinate.

An excerpt from the Rolling Stone profile of General Stanley McChrystal:

Now, flipping through printout cards of his speech in Paris, McChrystal wonders aloud what Biden question he might get today, and how he should respond. “I never know what’s going to pop out untilI’m up there, that’s the problem,” he says. Then, unable to help themselves, he and his staff imagine the general dismissing the vice president with a good one-liner.

“Are you asking about Vice President Biden?” McChrystal says with a laugh.

“Who’s that?”

“Biden?” suggests a top adviser. “Did you say: Bite Me?”

Article 88 of the UCMJ, referring to insubordination:

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 Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

So do McChrystal's comments amount to insubordination? No, says Eugene Fidell, who teaches at Yale University School of Law and is president of the National Institute of Military Justice. “I don’t really think this is contemptuous," says Fidell. "I don’t think it makes the needle bounce under Article 88. There’s 'contemptuous words' and being disrespectful," Fidell added. "Those are two different things.”

That said, Fidell still believes McChrystal should go. "The real problem here is that an officer at his level has to set an example, and the president has to have complete confidence in an officer at that level," Fidell says. "McChrystal has to resign or retire.” 

"You cannot have a senior official saying this kind of thing," Fidell says. "It’s a democratic society, but you can’t have this kind of dissension at the highest levels [of the military]. People have to get out if they feel that way.”

UPDATE: Since most of the disrespectful comments came from McChrystal's aides and not McChrystal himself, I asked Fidell whether these rose to the level of insubordination under Article 88.

"The officers in his staff are in for some heavy weather, if that’s the water cooler conversation,” Fidell said, predicting that they would face some kind of consequences. But added that he didn't think the anonymous comments amounted to insubordination. He added that administration officials were "entitled to better."

-- A. Serwer

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