The topic of war is not one lawyers are generally qualified to address. To be sure, there are rules of engagement and principles of national relations that can properly be considered by lawyers. And once in a while, the Supreme Court hands down an opinion addressing the the president’s war-making power. But the topic of war is more of a political question than a legal debate.
When it comes to punishment, though, lawyers may claim their rightful province. Deterrence, retribution, perhaps even justice — these are things we learn to consider from the start. And “contempt” and “rehabilitation,” well, those too are something we lawyers know more than a little about.
In the current debate over General Stanley A. McChrystal, it is worth asking what, if anything, McChrystal is guilty of and how, if at all, he should be punished for his conduct. On the first issue, it seems clear that McChrystal was recklessly, if not willfully, contemptuous of…someone. But who that person is makes a big difference. See, for example, the “Contempt for Officials” crime:
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 Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.
10 U.S.C. 888.
On the second issue, that of punishment, the statute leaves it basically up for grabs what the proper punishment should be. By most accounts McChystal is a successful, perhaps even brilliant, general. And, after all, generals have really only one goal: to win wars, not to massage emotions. Generals engage in wars in which people die, not wars in which the greatest casualty is hurt feelings. Or so the argument goes. It may be that the crime of which McChrystal is guilty may be a crime not of insubordination, but of disrespect; not one which will jeopardize an entire mission, but one which will impair his ability to effectively lead by example.
Eagleionline Question(s) of the Day: Did McChrystal commit any crime? Which one? And if so, how should he be punished? Can McChrystal be rehabilitated?