PLANK NOVEMBER 15, 2012
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In his press conference today, President Obama thanked General David Petraeus for his service to the country less than a week after he accepted his resignation as head of the CIA. It was the least that Petraeus was owed. But Obama's work isn't done yet—not while another military officer, General John Allen, is still being scrutinized for a possible extramarital relationship. The President owes it to the country to address a nagging underlying issue that has contributed to this week's needless national hyperventilation: the current state of military law pertaining to adultery.
The Uniform Code of Military Justice clearly needs to be rethought. As it stands, it blurs what should be a clear line between acts of misconduct that affects a high-ranking officer’s family and those that weaken his or her ability to lead others.
One relevant section, Article 133, reads as follows: “Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.” And here’s Article 134, which bears directly on the Petraeus case, at least in principle:
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 the court.
In the cases of Avrech v. Secretary of the Navy and Parker v. Levy, both decided in 1974, the Supreme Court rejected challenges brought against this language on the grounds that it is vague and overbroad—even though it manifestly is both.
Even worse, Article 2 of the UCMJ extends its jurisdiction to include “retired members of a regular component of the armed forces who are entitled to pay.” Because Petraeus is entitled to a pension, he falls under the Code. The bottom line: his private conduct is potentially subject to legal scrutiny for the rest of his life. Even if no prudent military lawyer would bring such a case, this legal framework shaped the environment in which Petraeus tendered his resignation.
This is madness. It is easy to imagine circumstances in which adultery might well undermine the ability to command. But throughout our history, leading generals—in all probability including Dwight Eisenhower while he was Supreme Commander of the Allied Forces—have engaged in adulterous affairs. Surely the burden should be on the military to demonstrate a concrete, functional, operational link between the adulterous conduct and military discipline. In the absence of such a showing, the simple fact of adultery should not suffice, and the UCMJ should make that crystal-clear.
At present, it does not. According to the manual that guides the application of the military code, “To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting [my italics] … ”
What does that final phrase mean? Answer: “Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open and notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.”
To be sure, the text continues, “adulterous conduct that is private and discreet may not be service discrediting by this standard.” But in today’s information environment, discretion rarely suffices to prevent private conduct from becoming public knowledge—all the more so in the case of well-known figures such as David Petraeus. In practice, then, there is no area of private life that cannot come under the jurisdiction of the UCMJ.
All this transpires under the aegis of language that has been part of our military law since 1775and that directly traces to British sources from the late seventeenth century. Can anyone seriously argue that public norms have remained unchanged for the past three hundred years? The U. S. military is not—and should not be treated as—a hermetically sealed world. It is part of our society. Adultery is not per se a disqualification for the presidency (Roosevelt, Eisenhower, Kennedy, Clinton); nor is it more generally for positions of military and civilian leadership. It’s time to update our military code, not to subject our leaders to the dead hand of the past.
To the extent that the extant military code affected Petraeus’s decision to tender his resignation, or Obama's decision to accept it, it contributed to a result that is inconsistent with the country’s best interests. As the president reaffirmed as his November 14 press conference, there is no evidence that the former CIA director’s conduct breached national security. If further inquiry establishes that Petraeus’s conduct either led to a security lapse, such as the dissemination of classified information, or posed an unacceptable risk of so doing, that would be a different matter. But based on what we now know, the CIA has been deprived—needlessly—of the services of an experienced and skilled leader, in no small measure because of a vague and antiquated legal text.
18 comments
Everybody who's ever served, including myself, know how ridiculous the ucmj sometimes is. and just as ridiculous to think anything on earth is ever going to be done about it.
- jerrol
November 15, 2012 at 7:37am
jerrol is correct. Military justice, like artificial intelligence, is an oxymoron.
- drofnats1
November 15, 2012 at 8:45am
I agree with this article that the UCMJ should be amended to remove the prohibition against adultery per se. But while the ostensible subject of the article is the treatment of adultery under the UCMJ, the real message is that Petraeus shouldn't have been forced out of the CIA directorship. He is such a Great Man that his dismissal--and for a mere personal pecadillo!--is a profound loss to the Nation. I can't agree with that. Though no harm to national security has yet come to light in this case, the case itself illustrates how clandestine personal improprieties can have unforeseen consequences. When you accept appointment as CIA Director, you accept a responsibility to avoid improprieties in your personal life. Petraeus violated that responsibility. He couldn't be allowed to stay. There are other people who can fill the CIA directorship just as well as, or even better than, Petraeus. Petraeus certainly didn't show the sound judgment you'd expect in a CIA Director when he allowed himself to become attached so closely to Broadwell in the first place--even if adultery were not in issue here. And Petraeus' performance in Afghanistan wasn't so brilliant, either. It strikes me that the author of this article is suffering from the same idolatry of Petraeus, and blindness to any faults he may have, that afflict so many, thanks to what seems to be Petraeus' greatest talent--skillful manipulation of the press.
- BillW
November 15, 2012 at 8:58am
We don't know if his conduct exposed national security secrets, but we do know it exposed Patraeus to be a dumb ass, too dumb to serve as leader of American troops or as head of the CIA. Of course, being a dumb ass has never been a disqualification for either post. Maybe we should consider adding dumb ass as a disqualification for serving in high level national security positions.
- rayward
November 15, 2012 at 9:53am
shame, shame, shame! there's enuff to go around!
- cdmcl3
November 15, 2012 at 10:38am
shame, shame, shame! there's enuff to go around!
- cdmcl3
November 15, 2012 at 10:39am
Actually, the relationship between Petraeus and Broadwell seems already to have created a national security problem. Broadwell seems to have asserted publicly that the Behghazi consulate housed a CIA prison, and to have implied that she knew this through her relationship with Petraeus. If it's true, it's an unauthorized disclosure of classified information--information that Broadwell shouldn't have been privy to; even if it's not true, at the very least her assertion can't readily be refuted and will be believed both domestically and abroad. That has nothing to do with adultery, but it demonstrates that Petraeus exercised culpably poor judgment in allowing Broadwell to be so closely linked to him.
- BillW
November 15, 2012 at 11:08am
The reason the UCMJ has lasted for 200 years is because it is ambiguous. And it will remain so. Regardless of the UCMJ, the military simply does not pursue adultery cases. They will not open that can of worms. To do so would change the focus of the military from national defense to the redress of 1000's of scorned spouses. Adultery is best left to the back door and the back fence. I would also add that in the military there are two types of adultery: deployed and home station. Deployed, with a prostitute, is generally looked upon as on the level of having a Baskin-Robbins ice cream cone when your local Dairy Queen is closed, that is, insignificant. Home station, with another GI or GI's wife, is looked upon as dangerous and stupid--and it will end your career if the commander or first shirt finds out, just not with a courts-martial. As one colonel put it to me, in technical military terms, while deployed to the Philippines--you don't shit in your own backyard. Looks like Petraeus forgot the distinction.
- Vogelfam
November 15, 2012 at 11:41am
This is an excellent piece by Galston. Not because of what it says. I wouldn't know, because I didn't bother to read it. However, the mere fact that Galston is not writing about politics, economics, or finance is a welcome change. I am sure he has something or other to teach the world about adultery. Personally, I don't care what it is. I recently suggested that he try his hand at reviewing ballet as he knows nothing about the political and economic matters on which he typically writes. This piece is a step in the right direction.
- roidubouloi
November 15, 2012 at 12:37pm
Quoting myself from the thread at Galston's "Five Take-Aways" on the election: "Galston should try his hand at ballet reviews. What he knows about economics, fiscal policy, and politics, taken together, wouldn't fill a thimble."
- roidubouloi
November 15, 2012 at 12:39pm
As soon as a man reaches a sufficient level of national power/responsibility, he should be required to 1) divorce his wife and 2) identify his harem and have them pass security checks and wear identity badges.
- skahn
November 15, 2012 at 4:44pm
Don't worry Roi; while Galston has a point about the UCMJ, it wouldn't appear pertinent in the slightest to Petraeus' resignation as head of the CIA. For, while the affair occurred while he was under the rule of the UCMJ, it is totally irrelevant to his position at the CIA. He could still be court martialed under (as I understand it), but again, that proceeding would be unaffected by his continuing to be head of the CIA or a private citizen. Of course, being court martialed would probably compromise his position at the CIA, but one may as well wait to see whether the court martial would materialize. As I understand it, the CIA has a code of conduct that takes a somewhat dim view of affairs on the part of its employees, for very obvious reasons. Now while Petraeus himself is not an employee of the CIA, it would appear difficult to command the respect of one's subordinates once it has become clear that you can't follow the rules they are expected to.
- Nari224
November 15, 2012 at 6:19pm
What some posters know about Galston wouldn't fill a thimble: http://en.wikipedia.org/wiki/William_Galston
- arnon1
November 15, 2012 at 6:50pm
"This is an excellent piece by Galston. Not because of what it says. I wouldn't know, because I didn't bother to read it." Very clever, passing judgment without having read the pertinent material. I will try it sometime.
- arnon1
November 15, 2012 at 6:52pm
Explicitly, arnon, I was not applauding the content of Galston's piece, but the mere fact that he was for a change doing something other than sharing is idiotic thoughts about politics, economics, or finance. It is his silence on these subjects, in which he is an embarrassment to himself and TNR, that is such a blessed relief. Next I hope he writes about baseball, or botany, or Medieval knitting, or lawn sprinklers.
- roidubouloi
November 15, 2012 at 11:06pm
"sharing his idiotic thoughts about politics, economics, or finance"
- roidubouloi
November 15, 2012 at 11:08pm
| roidubouloi "Explicitly, arnon, I was not applauding the content of Galston's piece, but the mere fact that he was for a change doing something other than sharing is idiotic thoughts about politics, economics, or finance." I know, but some of us don't think that Galston's is an idiot who writes about thinks he doesn't know. Disagreeing is one thing calling into question his competence is something else.
- arnon1
November 16, 2012 at 12:18am
There is indeed a difference. But the things that Galston writes here on the subjects of politics, economics, and public finance are so manifestly stupid that he is indeed either incompetent to address these subjects or so overcome by some sort of idiosyncratic ideology of "dumb centrism" that he is rendered incompetent. What he writes on these subjects is so inane that a year or two in which he discourses on adultery would be welcome. I think he actually doesn't have a clue, but believes his credentials entitle him to write as if he did despite his ignorance. He reminds me of academics I have encountered who seem to think that, because they have a doctorate in say, anthropology, all other fields of intellectual endeavor are obvious to them, requiring none to the sort of specialized knowledge that they expect in their own.
- roidubouloi
November 16, 2012 at 7:18am