UCMJ Article 88: When Free Speech is Contempt.
I recently made a social media post depicting a Washington Post link about Lt. Col. Stuart Scheller and the ramifications of his criticisms of the Afghanistan evacuation. Lt. Col. Scheller will be pleading guilty and seek an honorable or general discharge under honorable conditions for speaking out against Pres. Biden’s Afghanistan “exit debacle”. My caption to posting this article read; “If there was EVER a case for an American’s rights under the First Amendment, this would be it.”
As expected, there were a few comments by my friends on either side of the political spectrum. One comment in particular focused on Lt. Col. Alexander Vindman. If you don’t know or recall him, he’s the former director for European Affairs at the National Security Council under former president Donald Trump. He’s also know for being subpoenaed by Congress as a key witness in Pres. Trump’s impeachment trial. There was a brief, but cordially antagonistic exchange between two of my friends from BOTH political spectrums. One friend gave his example that Vindman was considered a “hero” by some, implying Scheller is considered as criminal or un-heroic. Another friend rebutted the comparison as incorrect. Stating that Vindman spoke out under subpoena and duty, whereas Scheller was figuratively “out on the local street corner espousing his personal opinions.” Now, I know both these individual very well and am very aware of their respective thought processes. I also respect them both very much, or else I would not consider them friends. I’ve served overseas with one and work with the other at home.
The fact is, neither of them are wrong in their opinion. And because of that, I choose to dissect that comparison. Let’s start with Lt. Col. Vindman. Yes, he was under oath when testifying to Congress. Yes, he followed the law and spoke out in a legal setting as was his duty under the tenets of his job. It was definitely Lt. Col. Vindman’s responsibility. Not much to dissect there. And in “Black & White”, there’s no argument there. But I wouldn’t say there was heroism in what Vindman did as opposed to courage. Because Vindman did take the courageous step to speak out as he did and risk his professional career, no matter the cost.
But did Lt. Col Scheller? Did he speak out legally? Yes and no.
Yes, Lt. Col Scheller did speak out legally in the sense that he sent a serialized letter to the Secretary of the Navy. (See image below)
Well, he legally submitted his intent to resign his commission, he went against regulations and posting a video of his “dissent” with the Biden Administration on his personal social media page which is covered under Articles 88, 89, 91, 133 and 134.
Now the above is just a small example in the differences between Vindman and Scheller. In my opinion, both men are not “Hero’s” as it were. Both men are dedicated servants to the Armed Forces of the United States. Both men took responsibility for their actions and suffered, or will suffer, their respective consequence. However, I believe there is one thing in which they have in common. They each held their leadership accountable (in a respective sense.) Lt. Col. Vindman recognized and testified to what he saw as an abuse of power by President Trump. Lt. Col. Scheller spoke out on what he saw as an incompetence of power by President Biden.
As Citizens, we (the American public) as well as our Uniformed Military not only have the right, but the responsibility of holding our President accountable. But for those who wear the Uniform, that accountability comes at a cost as stated in United States v. Howe (1967). We who have served were always told that we were to never take an active part in any political event while in uniform. Nor were we to protest or be in active demonstration while in uniform. Those admonitions stick throughout one’s service. But for some, like Lt. Col. Scheller, he felt it necessary to break with tradition. Because in his mind, 20+ years of tradition needed to be hampered by progress. Maybe someday the UCMJ will catch up to reality.
In this age, the lines between right, wrong, logical and what’s deemed offensive are now blurred. Those who have lived in the ‘age of absolutes’ are frustrated with hypersensitivities of the “woke” culture. I suppose it’s because change appears to be forced upon us. And in some cases, these new changes just don’t work in the reality of our human nature. Vindman and Scheller are not much different in what they have done. It’s just our opinions and their consequences that are.
