Posted on Oct 4, 2018
Can military service members criticize former Presidents at any level?
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Thinking specifically of The Hatch Act, can military service members criticize former presidents at any level? This was brought up in an ROTC discussion about the Army Profession and Civilian-Military Relations.
Edit:
I was corrected on my use of the Hatch Act in this situation, it does necessarily apply (See below, "John Monette"). There are a few key parts to this question: "service members", "former", "any level". So more specifically, I suppose we are then referring to UCMJ, USC (United States Code), and the other policies in place restricting us from criticizing our leadership. To what extent does such apply to former presidents?
--------------------------------(NOTES BELOW THIS LINE)----------------------------------
Thank you to everyone for contributing; it's been wonderful to get so many voices with differing opinions in on the conversation. Such is what makes RallyPoint so great. Here are things I gathered from the conversation and from other readings I have looked into:
- BLUF:
Yes, but it depends. The key is to understand the difference between being critical and being contemptuous. None the less, a service member's legal right to free speech is upheld in this case.
- Start with the WHY:
People consistently respond to this question with "Why bother?" This response seems to come from differing opinions on history as a discipline and in part, a perspective on what democratic politics should consist of. Personally, I am frustrated by this response, but it certainly has value and requires attention. I greatly appreciate the push-back.
First, we must understand the potential difference between critiquing and criticizing. Criticism can have a negative connotation attached to it and this is not my intent. I am drawing from a democratic ideal of political liberty directly attached to historical studies, though certainly with my own goals in mind. I think we all have to agree that the "WHY" behind our actions is always at some level biased and perhaps driven by an agenda, but such is not always a bad thing. "Democracy gives us the right to disagree and is designed to use the energy of creative conflict to drive positive social change. Partisanship is not a problem. Demonizing the other side is." - Parker Palmer
Second, the keyword in this question is "former". We need to recognize the difference as changing "former" presidents to "current" presidents alters the conversation entirely. My question was and is a matter of legality/ethics. In the forum however it takes on various forms. Another way of phrasing it might be: "Can we ask hard questions of our former presidents and come up with potential answers to those questions while staying within the proper legal parameters as former/present military service members?"
Third, critique is beneficial. Such is obvious to us as this concept is used on privates in their formative beginnings, and well into our military careers. As citizens of a republic, there ought to be room for criticism of former leaders. Furthermore, when we conduct classes around historical battles and the people involved we also practice healthy criticism (hopefully within proper historicism). An example I often use involves our country's history on foreign policy. I believe valuable political, social, and cultural discussions can be had around President Wilson and his part in publicizing the ideology behind "every nation has a right to self-determination". There are legitimate criticisms about this that ought to be discussed by us as citizens, especially considering the importance of our ability to vote.
- Big Picture:
In 1958 Congress passed the Former Presidents Act. This gave a departing president an annual pension of $25,000 per year. It is now just over $200,000 per year. As well, funding is available for the ex-president to furnish an office and staff for a little over four years. Other than this, former presidents no longer have any status in the government.
Furthermore, the 22nd and 12th amendments give limits that we interpret as serving no more than two terms as President, and possibly a third term as vice president, though such is a contested issue among constitutional scholars. There is no other legislation in place to limit a former president's future work in government roles. Thus, former presidents may at some point re-enter the chain of command or federal service.
This is where the Hatch Act comes into play. Military reservists or Guardsmen who also work as federal government civilians are subject to the Hatch Act as well as UCMJ. Members of the active-serving armed forces however are subject to Department of Defense Directive 1344.10, which is similar in policy to The Hatch Act but holds different legal ramifications.
Example:
John Quincy Adams elected into the House of Representatives in 1830, serving until 1848.
William Howard Taft selected to the Supreme Court in 1921, serving to 1930.
- Political Science:
As a republic we have offices of service rather than positions of nobility. The difference being that our offices of service are not personal endowments of rank, meaning we do not identify the person and their position as synonymous for the rest of their life. Thus, we should understand the Presidency as a role more so than a rank. When someone no longer occupies their government office they resume ordinary citizenship status, to include presidents.
This is somewhat different than what we experience in the military. A retired Army Captain may be referred to by their rank. Their retirement earns them certain customs and courtesies in society and in the military according to official policies that define personnel as retired. However, a former president is no longer referred to as Mr. or Mrs. President and most every courtesy given to them is traditional rather than a strict regulation or law.
- Legal Details:
As Christopher Thompson pointed out, service members cannot be persecuted under the Hatch Act, UCMJ Article 2 (for active duty and retired service members), or United States Code Title 18, Section 871.
DoD Directive 1344.10 reads:
"Commissioned officers shall not use contemptuous words as prohibited by section... Activities not expressly prohibited may be contrary to the spirit and intent of this Directive." This seems to support the BLUF as stated above. However, as others have stated, especially William Bentley, DoD ethics regulations can cover a lot of different situations. There is a lot of room for interpretation and legally, any sort of negative conduct could be subject to UCMJ, especially in light of Article 134 which covers good order and discipline.
- Takeaway:
Reading over Article 88 of the UCMJ seems to infer that only current presidents are of any legal concern to military personnel. Though former presidents have legally exited the office and thus the chain of command, morally we understand the ethical obligations of military service and give the proper respect when speaking of former presidents and their work irregardless of our personal political beliefs.
Likewise, we ought to remember the legacy of the presidential office and our profession. Presidents carry an important current of policy from one generation to the next; criticism of their actions do not take place within a vacuum. As the gentleman below writes "you may find yourself not only criticizing the former but the current in the same breath." (Aaron Kennedy) You might call this intellectual hospitality, meaning, that as we engage with the ideas of former presidents we remain humble and fair in our analysis.
***This could all be tied into the Army's current work on redefining Army professionalism which implies a lifelong obligation to represent the Army Ethic and the U.S. military profession (as seen in recent revisions to ADP 1-0).
Edit:
I was corrected on my use of the Hatch Act in this situation, it does necessarily apply (See below, "John Monette"). There are a few key parts to this question: "service members", "former", "any level". So more specifically, I suppose we are then referring to UCMJ, USC (United States Code), and the other policies in place restricting us from criticizing our leadership. To what extent does such apply to former presidents?
--------------------------------(NOTES BELOW THIS LINE)----------------------------------
Thank you to everyone for contributing; it's been wonderful to get so many voices with differing opinions in on the conversation. Such is what makes RallyPoint so great. Here are things I gathered from the conversation and from other readings I have looked into:
- BLUF:
Yes, but it depends. The key is to understand the difference between being critical and being contemptuous. None the less, a service member's legal right to free speech is upheld in this case.
- Start with the WHY:
People consistently respond to this question with "Why bother?" This response seems to come from differing opinions on history as a discipline and in part, a perspective on what democratic politics should consist of. Personally, I am frustrated by this response, but it certainly has value and requires attention. I greatly appreciate the push-back.
First, we must understand the potential difference between critiquing and criticizing. Criticism can have a negative connotation attached to it and this is not my intent. I am drawing from a democratic ideal of political liberty directly attached to historical studies, though certainly with my own goals in mind. I think we all have to agree that the "WHY" behind our actions is always at some level biased and perhaps driven by an agenda, but such is not always a bad thing. "Democracy gives us the right to disagree and is designed to use the energy of creative conflict to drive positive social change. Partisanship is not a problem. Demonizing the other side is." - Parker Palmer
Second, the keyword in this question is "former". We need to recognize the difference as changing "former" presidents to "current" presidents alters the conversation entirely. My question was and is a matter of legality/ethics. In the forum however it takes on various forms. Another way of phrasing it might be: "Can we ask hard questions of our former presidents and come up with potential answers to those questions while staying within the proper legal parameters as former/present military service members?"
Third, critique is beneficial. Such is obvious to us as this concept is used on privates in their formative beginnings, and well into our military careers. As citizens of a republic, there ought to be room for criticism of former leaders. Furthermore, when we conduct classes around historical battles and the people involved we also practice healthy criticism (hopefully within proper historicism). An example I often use involves our country's history on foreign policy. I believe valuable political, social, and cultural discussions can be had around President Wilson and his part in publicizing the ideology behind "every nation has a right to self-determination". There are legitimate criticisms about this that ought to be discussed by us as citizens, especially considering the importance of our ability to vote.
- Big Picture:
In 1958 Congress passed the Former Presidents Act. This gave a departing president an annual pension of $25,000 per year. It is now just over $200,000 per year. As well, funding is available for the ex-president to furnish an office and staff for a little over four years. Other than this, former presidents no longer have any status in the government.
Furthermore, the 22nd and 12th amendments give limits that we interpret as serving no more than two terms as President, and possibly a third term as vice president, though such is a contested issue among constitutional scholars. There is no other legislation in place to limit a former president's future work in government roles. Thus, former presidents may at some point re-enter the chain of command or federal service.
This is where the Hatch Act comes into play. Military reservists or Guardsmen who also work as federal government civilians are subject to the Hatch Act as well as UCMJ. Members of the active-serving armed forces however are subject to Department of Defense Directive 1344.10, which is similar in policy to The Hatch Act but holds different legal ramifications.
Example:
John Quincy Adams elected into the House of Representatives in 1830, serving until 1848.
William Howard Taft selected to the Supreme Court in 1921, serving to 1930.
- Political Science:
As a republic we have offices of service rather than positions of nobility. The difference being that our offices of service are not personal endowments of rank, meaning we do not identify the person and their position as synonymous for the rest of their life. Thus, we should understand the Presidency as a role more so than a rank. When someone no longer occupies their government office they resume ordinary citizenship status, to include presidents.
This is somewhat different than what we experience in the military. A retired Army Captain may be referred to by their rank. Their retirement earns them certain customs and courtesies in society and in the military according to official policies that define personnel as retired. However, a former president is no longer referred to as Mr. or Mrs. President and most every courtesy given to them is traditional rather than a strict regulation or law.
- Legal Details:
As Christopher Thompson pointed out, service members cannot be persecuted under the Hatch Act, UCMJ Article 2 (for active duty and retired service members), or United States Code Title 18, Section 871.
DoD Directive 1344.10 reads:
"Commissioned officers shall not use contemptuous words as prohibited by section... Activities not expressly prohibited may be contrary to the spirit and intent of this Directive." This seems to support the BLUF as stated above. However, as others have stated, especially William Bentley, DoD ethics regulations can cover a lot of different situations. There is a lot of room for interpretation and legally, any sort of negative conduct could be subject to UCMJ, especially in light of Article 134 which covers good order and discipline.
- Takeaway:
Reading over Article 88 of the UCMJ seems to infer that only current presidents are of any legal concern to military personnel. Though former presidents have legally exited the office and thus the chain of command, morally we understand the ethical obligations of military service and give the proper respect when speaking of former presidents and their work irregardless of our personal political beliefs.
Likewise, we ought to remember the legacy of the presidential office and our profession. Presidents carry an important current of policy from one generation to the next; criticism of their actions do not take place within a vacuum. As the gentleman below writes "you may find yourself not only criticizing the former but the current in the same breath." (Aaron Kennedy) You might call this intellectual hospitality, meaning, that as we engage with the ideas of former presidents we remain humble and fair in our analysis.
***This could all be tied into the Army's current work on redefining Army professionalism which implies a lifelong obligation to represent the Army Ethic and the U.S. military profession (as seen in recent revisions to ADP 1-0).
UCMJ
Office of the President (POTUS)
Freedom of Speech
Politics
Government
Edited >1 y ago
Posted 6 y ago
Responses: 120
80
80
0
What a fascinating question. You should get some sort of prize for this one. Sure, it is flawed. The Hatch Act doesn't really apply (as others have already explained more than adequately). What follows is purely opinion. Please do not act on it without checking with competent authority. It appears that any such prohibition is dependent upon your status. For example in Article 88 of the UCMJ: 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". Without researching this too deeply, I suspect that enlisted personnel would be precluded under some provision relating to insubordination. However, whatever your status, that would apply only to a sitting President. Past Presidents have no standing in the chain of command. Thus, I would infer that an criticism of a past President would not be punishable.
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PO1 David Shepardson
My first thought was, not in uniform and not identified as a member of the military, and be careful not to be sucked into a public forum like the news media.... however, I personally would not do it when I was serving. (and with the political climate now, no.)
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1LT (Join to see)
PO2 Michael Martin - Thank you for the support! Yes, your conclusion has been the general consensus; that regulations and articles on ethics can and have been drawn upon to persecute active and former service members for numerous things. So, the underlying factor for any real legal problem in our lives is the fact that we served. Rank is considered in one way for some things, but the bottom line is the bottom line. The President is the top dog.
This is where the nuance comes in though. A former president is not a superior. A former president is now a citizen. So, in one major way, the questions is answered upfront and backed up legally. The rest of the discussion just clarifies the why and provides evidence to the claim. This way were not just going around claiming whatever we think is right, but have actual evidence to back us up when we teach others where exactly their legal freedoms are.
This is where the nuance comes in though. A former president is not a superior. A former president is now a citizen. So, in one major way, the questions is answered upfront and backed up legally. The rest of the discussion just clarifies the why and provides evidence to the claim. This way were not just going around claiming whatever we think is right, but have actual evidence to back us up when we teach others where exactly their legal freedoms are.
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Michael McCann
Getting rid of that act would help find traitors and spies exponentially faster cause the criminal can “work” more out in the open and to voice his opinion possibly with a coworker the spy can relate to or sees a similarity between each other.
If your captain trying to become part of the presidents protection team I wouldn’t post my face and I won’t say I’m in RTC because if they find out what school you go to you they’ll know what branch are in it’s like shooting somebody down range don’t fucking do it
If your captain trying to become part of the presidents protection team I wouldn’t post my face and I won’t say I’m in RTC because if they find out what school you go to you they’ll know what branch are in it’s like shooting somebody down range don’t fucking do it
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If you are on active duty, discretion is the better part of valor. That is be very careful about what you say. Once you leave the service by separation or retirement, the situation is different. Then you are just like any other citizen; feel free to speak your piece.
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PV2 Duane Schlender
One could honestly debate the use of "private citizen", however, that debate might blow up the rallypoint servers... With an intact oath, I personally disagree that I am a "private citizen". I am a citizen, yes. but a duty bound public one.
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MAJ Michael Poplawski
Gen Patton was looking forward to his retirement so that he could voice his opinion. He did not live to see it. Makes you wonder what he would have said.
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1LT Rich Voss
MAJ Michael Poplawski - Sir, when people ask "who would you like to meet, past or present", I think that I would have liked to have been General Patton's driver for awhile. Just NOT at the end. (I was 4th AD during active duty & visited his grave)
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1LT (Join to see)
MAJ Michael Poplawski - Well, he probably would have just said more stuff on how important it is to be absolutely and utterly violent, but in very colorful and inspiring language.
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This is a touchy subject. While there may or may not be ‘hard regs’ to state one way or the other, always ask yourself ‘is this professional’? As long as you can say yes to it, do what your collar or wallet can afford. You are entitled to free speech. You’re also entitled to the after effects of free speech. Talking about a President is different than talking ABOUT a President if you feel what I’m sayin.
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GySgt William Hardy
In today's political climate it is more about who hears it than what you actually said. If you still have any military status, it is better to say nothing in public and be very careful of what you say in private.
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SGT Harold Ball
If you are active duty or retired military, article 88 covers this & it is against the USCMJ to speak badly of the President.
Any of the above mentioned personnel who do speak out against the president, called for impeachment, to have him dragged out of office, ect, should be brought up on charges.
Keep your pie hole shut!
Any of the above mentioned personnel who do speak out against the president, called for impeachment, to have him dragged out of office, ect, should be brought up on charges.
Keep your pie hole shut!
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SSG Alfred Woods
Yes, he would be the Former president, not the sitting president. The idea of criticizing any "member of government," that is actively serving duties within governmental concerns and is or is not directly in your chain of command is a No-Go. However, if the member is no long working in a capacity of governmental affairs, he\she, can suck washers and spit nuts....
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Cpl Robert Robertson
If you are on active duty especially in public and in uniform It would be the wiser path to leave Presidents out of one's discussions
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