Gen. McChrystal, Rolling Stone, and a Supreme Court Interpretation of the Patriot Act

One of the most important things a military officer can do, not just for one's own career but for the safety of the fighting forces he or she serves with, is to anticipate the needs of the commander. In the case of a general who acts as a theater commander, it is to anticipate the needs of the Commander-in-Chief.

General Stanley McChrystal appears to have forgotten this when making informal off-hand comments regarding the Commander-in-Chief and others in and out of the chain of command to a Rolling Stone reporter who could not get a quick-enough flight of of the Afghanistan area of operations.

A lesson for all officers who aspire to higher levels of command authority: the press is always a potential enemy, for members of the press do not know what they know, then arrange to have it put in print. http://www.google.com/search?q=loose+lips+sink+ships" rel="nofollow">Loose lips sink ships, and sometimes a promising military career.

Regardless of the immediate future for Gen. McChrystal, Rolling Stone seems to have stepped onto death ground itself, and the one rolling stones upon it from the high ground appears to be the Supreme Court of the United States. At the same time, the Supreme Court may have tied the hands of US citizens, committing us to act as combatants in a manner that may have us at odds with the President's constitutional latitude in conducting foreign policy.

For argument's sake, I will assume that the people on the Rolling Stone editorial staff are smarter than a gunny sack of potatoes. I was going to compare them to to a sack of rocks, but I want to at least give them credit for having eyes, even if they were not open. Being smart journalists, those editors and the reporters feeding them stories were reasonably aware of such a thing as the Supreme Court, and they most likely were better informed than the general public that there was a case involving the Patriot Act and freedom of speech on the docket for a decision this month.

For those of us who are not Rolling Stone editors or otherwise haven't been keeping up with current events, the Supreme Court has ruled that anybody who provides any “material support” to government-identified terrorist groups has violated the Patriot Act. The question today is precisely how far did Rolling Stone go out of its way to find itself in court over a Patriot Act violation.

The Supreme Court announced its June 21, 2010 decision in the matter of http://www.supremecourt.gov/opinions/09pdf/08-1498.pdf" rel="nofollow">HOLDER, ATTORNEY GENERAL, ET AL. v. HUMANITARIAN LAW PROJECT ET AL. In the majority opinion, the Court found that an organization which itself is not a terrorist organization cannot provide any material support to a terrorist organization, even if that support might be reasonably considered to be otherwise-protected free speech, as long as that speech provides “assistance” to the terrorist organization.

Part of the Court's reasoning is that even humanitarian assistance, such as showing a terrorist organization skills and techniques for engaging in peaceful negotiations, is prohibited by the Patriot Act because it allows the terrorist organization to use freed-up resources in terrorist activities.

So how much material support did Rolling Stone provide to terrorist organizations by outing McChrystal's comments?

As for us, the Supreme Court decision appears to create a duty for all US citizens to not provide material support to terrorist organizations. Given that most states have “hot pursuit” statutory clauses regarding enemies of the state, and the http://www.fema.gov/emergency/nrf/" rel="nofollow">National Response Framework covering terrorist acts asks ordinary citizens to do without federal or state assistance in response to all-hazard incidents (which specifically includes acts of terrorism by terrorist organizations), the Supreme Court decision also appears to give a green light to those of us who want to spend our own money and go hunting Osama in Pakistan. This may go against the President's authority to conduct our nation's foreign affairs, as the green light for us citizens to go after terrorists may end up disrupting any contacts the President or his administration may have with foreign terrorists, where the purpose of those contacts is the eventual goal of seeking peace between us.


If General McChrystal were an honorable man he would demand a court martial and refuse to resign.

RE #2:

It remains to be seen how many of McChrystal's staff and subordinate commanders decide to retire with him. Perhaps the current state of the economy will convince them to stay until all have their 20 years in.

Senior military commanders need to understand the gonzo journalist's need to be famous in print... especially if the multi-starred tabloid target is wearing a West Point ring.

McChrystal will wind up on the Board of Directors of either a defense contractor or an oil company. He will receive stock options worth millions. He's not going to suffer.

RE #3:

Bets are that there's some money to be made if McChrystal writes a book. Personally, I'd like to see his critique of Dupuy's A GENIUS FOR WAR, but I doubt it would get him on Oprah.

There does seem to be a lot of former general and flag officers involved with the Shaw Group. It's kind of interesting how Shaw Group does not appear implicated in the Gulf of Mexico mess, but maybe deep sea isn't their thing.

If General McChrystal were an honorable man he would demand a court martial and refuse to resign.

No kidding, what an idiot.

How would the General react if a PFC, 6 month enlisted grunt said those types of comments about the General?????

Court martial!

RE #5:

At least with Article 15 non-judicial punishment, there's no federal rap sheet...

What goes for that cannon-fodder private goes for the general who commands him in a theater of war. Though our military has never been big on "obedience unto death," certain standards do have to be maintained.

And if you shoot off your trap to a national magazine, especially how you care not for your superiors (be they civilians or uniformed)? You will pay for your misdeeds. And it's never a little price!

In Gen. McChrystal's case, he was relieved of his command and sent back to the States (he retired today, btw). If it were some shavetail fresh from Hudson High (new 2nd Lieutenant fresh from West Point Military Academy, FYI)? General Court Martial, loss of pay and rank upon conviction, and a Dishonorable Discharge from the U.S. Army.

Like it or not, you do surrender a few rights when you take Uncle Sam's Dollar, eat Uncle Sam's MREs, and wear Uncle Sam's uniform....for you are Uncle Sam's person now, not your own!

That means if you are wise, you wait until you leave the service to tell the world what you truly think about those "higher-ranking" officers you had to serve under (even the civilian ones).

And forget suing under the First Amendment's "Freedom Of Speech" clause--if you are in the military, there is no true freedom of ANYTHING short of what rights you are permitted to have by your superiors. Insubordination is still a crime under the Uniform code Of Military Justice...even for four-star generals.

It's called "Conduct Unbecoming An Officer," and if convicted of this, you lose one step in your rank, half your monthly pay for three months, and may even end up in Leavenworth Disciplinary Barracks (the military side of Leavenworth Federal Prison in Kansas) for your pains.

Of course, had this been in a Fortune 500 company--McChrystal would have gotten the boot with NO Golden Parachute, and much sooner, too!

Compare, contrast--then conclude! --LPR

The SCOTUS ruling about "any “material support” to government-identified terrorist groups is so vague that one would consider the US Gov't. is guilty of it's own laws by offering to train soldiers of other countries and or doing what our "alphabetical" agencies are doing to "further" US interests World Wide!

As with so many things these days, "the devil is in the details" and their Ruling just creates more instead of less confusion, which Lawyers love but common folks just see as more red tape strangling their personal freedom.

In the US we have "Freedom of the Press" and "Free Speech" but we all know that we must be careful what we say or put in print because, well "JUST BECAUSE", one never knows if someone in Power will find fault in what you've done and do who knows what, because they can (i.e. like in the movie "Brazil").

General McChrystal is one of the Army's brightest soldiers and I would not be at all surprised if his talking to Rolling Stone (kinda like a National Reader!) was a perfectly executed pre-planned event that was executed with the full knowledge of the POTUS, for some strategic reason, perhaps to generate public support for something like an much earlier end of the War...

For most folks the news is all about "today", and if History has shown US anything, it is that "We the People" don't find out what's really going on until much later if at all (i.e. the Vietnam War, where the "Free Press" was spot on and the Government was covering up for itself). I, for one, will wait to see what history decides to reveal; I'm betting General McChrystal and his entire Staff will be looked as Hero's instead of a bunch of buffoons!

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