 Yeah, welcome to our two o'clock show. I'm Jay Fidel. This is Think Tech. The other fellow was my brother Jean Hi, Jean Fidel. Thank you for joining us today My pleasure, Jane Jean is a military justice expert and has been doing that for 45 or 50 years now, but it doesn't show yet And he's taught the subject at Yale Law School and NYU Law School both and we want to talk about an event that happened last week involving a fellow named Stuart Scheller Scheller Who criticized the Joint Chiefs of Staff? Secretary of Defense and the President? in no uncertain terms very very acerbic and Very critical statements. So here under the military in Hawaii the perfect show for us to discuss Because it involves, you know, the basic structure of the military It involves what a person here a lieutenant colonel Stuart Scheller is a lieutenant colonel and this also involves social media as we've never had before and Criticism at least in my experience as we've never had before so gene It seems to me that this is a very unique situation It hasn't really happened and it violates what happened and violates a number of the articles of the uniform Military justice. Can you tell what happened and can you tell us what was violated? well in a nutshell And let me I'm gonna be a lawyer for a minute here Nothing I say should be understood and I imagine I speak for you to Jay as convicting Lieutenant Colonel Scheller of anything I have no opinion as to whether He should be convicted of anything And I think in fairness to him Viewers of this show should At least come away a little better informed but drawing their own conclusions as to whether He has committed some offense I think what we can usefully do is put in front of the viewers the pertinent legal authorities. So that's just a preliminary Observation in a nutshell Colonel Scheller made some comments Inspired I as far as I can determine from The very messy endgame in Afghanistan You know, no one is happy with The way things have unfolded it's they're not done unfolding, but pretty much, you know, we're at an inflection point And You know, many people feel that Let's say mistakes were made or that not all the precautions that could have been taken were taken or The force protection conventional force protection measures weren't taken or that we weren't Johnny on the spot in terms of getting Proactive enough early enough to get our friends out of danger Under the incoming Taliban regime Colonel Scheller Posted on Facebook a video In which he was in his uniform. He's a lieutenant colonel On active duty in the US Marine Corps with 17 years, which is important because he's not retirement eligible And he made comments that were Seem to be quite critical of basically everybody in sight Starting with the president and the incumbent president and The chain of command as a practical man one of the secretary of defense and general milley the chiefs of staff to resign Or or to I think admit a mistake Whether they should be out or not. I don't recall but he was clearly quite critical So that sets the stage There certainly have been Military officers who have let's say gotten crosswise with either the government or the government's policies or the government's leadership. I mean To go back to the Vietnam era. There was a An army junior officer who later became a lawyer by the way Who marched in a an anti-war demonstration in Texas carrying a sign that accused president Lyndon Baines Johnson of being a fascist Misspelling the word fascist by the way he spelled it FAC IST which I suppose is pronounced facist And you know he he was orthographically challenged. That's not what got him into Leavenworth. It was the sign that he was carrying that got him into Leavenworth And there there has certainly been other officers and and and GIs in general who have gotten out of out of formation. If you recall, there was a general McChrystal Effectively got told to retire Because he or members of his staff were critical of The president at that time. I think that was president Obama There they're you know over over the years there there have been people who have What you distinguished This guy was making this lieutenant colonel was making statements about bringing the whole system down That he wanted to bring the whole system down. Well, he reached 70,000 people on social media And then when the Republicans in Congress got hold of it, they brought in millions of people on social media So you had a good number. I don't know what that, you know, the total percentage was in the military participating in a conversation Where this fellow was suggesting that he and he wanted them to bring the system down Right one of the I don't know about bringing the system down as such but but he he certainly seemed to be addressing himself to other active duty personnel And suggesting that they should not be supporting the decision making by the incumbent chain of command that that's I think a fair Nutshell version The question is and It's not the question how many questions that this scenario raise and as I think you mentioned I'm teaching currently in your your alma mater NYU law school A class on military justice and I also run a blog called global justice And I also run a blog called global military justice reform. Take a look at that. Let's take a look at that Interesting for viewers to see this I I posted on the blog Something that the title is Semper Fidelis which was not a play on our last names But on on the it's a reference to the motto of the United States Marine Corps A an armed force that prides itself on obedience and discipline. I mean no kidding So it's pertinent and as you as you can see among the questions that I raised Excuse me Are Are Which articles or punitive articles that the Uniform Code of Military Justice come to mind based on Colonel Scheller's statements and how would you evaluate the government's prospect for obtaining a conviction If you were the officer's commander, how would you dispose of the charges in other words do you say well I don't I'm not going to send you to trial. Maybe I'll give you non judicial punishment or maybe I'll just get rid of you administratively What advice would you give to President Biden if you were the White House counsel because after all President Biden is the commander in chief If the case went to court martial and you were the defense counsel what motions would you make and how would you gauge your chances for success if the facts That have been reported are correct and Colonel Scheller pleads guilty. What sentence would you would judge and what odds would you give that he'll run for elective office And then finally I asked if you were the president the secretary of defense is secretary the Navy because the Marine Corps part of the Navy department Or the commandant of the Marine Corps or a senator or a member of Congress. What if anything would you should you say or do about this situation so there's really a host you could teach an entire course Just based on this one this one episode and this episode, you know, we'll go down on a certain level in the history of American military justice. So where would you like to begin Jay One is, you know, can he can he get out of this on the basis of his First Amendment rights to is can he get out of this on the basis that his statements as to the failure of the strategy and evacuating Afghanistan were true that they were correct. Those valid defenses here. Yeah, as far as the First Amendment is concerned, there are a number of respects in which military personnel, although they have First Amendment rights, their First Amendment rights are not identical with what you or I or our civilian viewers might might enjoy There are certain things you can't say in military that you could say if you were, you know, the, the randomly selected person in the Honolulu telephone directory. So, you know, that's the that's the answer to your first question is not the same. The answer to your second question was Oh, it's assuming that his complaints were true. Yeah, they were valid. The answer is truth is not a defense. The point of the exercise is not sort of philosophical correctness or accurate objective accuracy. The point is obedience and discipline and not breaking ranks basically, or doing things that would corrode the discipline of the force. In a larger sense as a matter of public policy, it seems to me both of those, you know, special approaches in military justice are intended to maintain good order and discipline intended to maintain a military organization that can do what the country wants it to do. So, seems to me that there's, there's a bigger policy question here as to whether Lieutenant Colonel of his own motion can can take issue with strategies that were developed the highest levels of the military and government, or whether that is so difficult to, you know, good order and discipline that we cannot afford to have it. I guess my question really is, if you let him do this, what happens. Well, let's play it out. There are at least two possibilities is actually range. There's a spectrum of options here but let's, let's talk about the options. One option is to do nothing and he has submitted his resignation letter, which means he'd forfeit his entitlement in three years time to, to be retired and to draw retirement pay and get medical benefits. He doesn't have to accept his resignation letter they could just sit on it for a while, while he cools his heels. They, he's been removed as commander of the unit. They could make him assistant Coca Cola machine officer somewhere for a year or two. But they could do nothing and let him go, you know, sooner or later and be done with it. And we'll see, you know where the path leads for him, or they could separate him administratively. And he'd be gone. And he might, some thought might be given to putting him out with a less than honorable discharge. That's probably a cheesy way out. He could be given non judicial punishment, assuming that he has violated some criminal provision in the Uniform Code of Military Justice so called punitive articles. Summary punishment in the Marine Corps is called office hours. I've always loved that phrase and it always brings to mind the analogy. If you forgive me Jay in the Royal Navy in the Royal Navy when an officer is subjected to summary punishment. It's called interview without coffee. I just love, I just love it's so cinematic, but in any event, he could be given a reprimand and told to get to get out. Your, your resignation is accepted. He could also be given a terrible tongue lashing. It's really important here because he can wait, wait, wait, he could be given a terrible performance report or assuming again that he's violated one of the one or more of the provisions of the Uniform Code of Military Justice. He could be charged. And the charges could be referred to a special or general court martial. The court martial is a felony court that could dismiss him as an officer, which is a stigmatizing way of leaving the service. And the question is whichever one of these things ranging from nothing to a general court martial is, are you willing to and is it in the national interest to create a martyr. And probably he has self martyred himself in the sense of, even if he did nothing and he'd be gone, and he would be claiming that he was a martyr to his view of some pretty heavy duty public policy issues. So, you know, letting him go at midnight one night with this final paycheck and not a hearty hand class but you know basically being thrown out or allowed to leave. You know, let me add this though, that doesn't stop the monitor. No, no, when he gets out of the service he can make himself a monitor all the more. Exactly right so the question is, what are the competing considerations. Obviously, if he were charged, and, you know, stung in some way, whether non judicially or in a general court martial. There, there would be a real prospect of martyrdom on the other hand. If you were the commandant of the Marine Corps. But would you consider his behavior tolerable. And if you thought it was intolerable. Would you say well, I'm just, I'm just going to go ahead and treat him no better than I would treat any gunnery sergeant who shot his mouth off, or her mouth off. Because you can't have this that an armed force is not a debating society. It's not the Senate Armed Services Committee. It's, you know, it's a you're supposed to serve give your best advice and basically give your best advice in private. Yeah, it's like that thing came up in the in the Greenville case in 2001, where it was the discussion of the Navy Corps of Inquiry was that you do want to encourage the people in the control room of the submarine to speak their minds, but within the control room, not to the world. And the, the, you know, if you were the trial counselor prosecutor in such a case you would say well, this really is selling the seeds of dissension. It's not simply, I'm going to be Joan of Arc. It's I'm going to be Joan of Arc and I want you all to follow me. And if you if you look at the kinds of things that have been posted the comments that have been posted on some of the news coverage. There are a lot of people that are saying yeah I'm behind you all the way current. So, did you get answers to the questions that you've listed from the bar. How do the students feel about it. Number one I would never disclose the contents of a classroom conversation that's not fair, but but beyond that we're going to defer it till later in the semester. And I hope we do get around to it and we'll know more, you know we'll see, but the interesting issue is as a political matter. Since the commandant of the of the Marine Corps put his foot down on this do what has to be done in order to send the message that this is intolerable in the United States Marine Corps. So does the president who is after all a commander in chief get to be the good guy and do the grand gesture and say no we're not going to we're not going to pursue this. It reminds me of a case that happened under President Kennedy. There came a time when the, the Kennedy administration had called up the reserves for something, and some enlisted man in Massachusetts said it, more or less publicly. This is the Kennedys again they're doing something for political reasons. It was a very hostile, very hostile comment and they be army reserve I think had started a prosecution of this guy and the question came up. At a press conference and President Kennedy was fabulous and press conferences and some reporters said well what about private Jones on Cape Cod you know it's mouthing off about about this call up and how it was all political and that this was right before Easter. President Kennedy said that he had spoken with the Secretary of the Army about this matter, and they had concluded that in keeping with the spirit of the holiday. There really wasn't a need to conduct a court martial. And that was. There are risks on both sides of it, you know, taking affirmative action, finding one of those various articles in the UCMJ and prosecuting at a court martial or even office hours is one way. And of course, you know that does suggest the possibility of modern whatever happens. The guy is trying to make himself a martyr by saying I don't want to pay I don't want the allowances. Just let me out of here, because I want to protest I'm protesting, I want everybody to protest what happened. And there was, you know, two videos we went through that. The first one was taken down already the second one is is worse. Then of course, if you don't do anything, this is the Marine Corps, the Marine Corps, it's all macho, you know the Marine Corps not taking any action at all that just opens it up to the Marines now feeling now feeling really badly that you know the macho went away that the Marine Corps isn't what it used to be. And that the Marine, a lot of Marines would say you know why don't you throw the book at him. So I mean I think this is very divisive in the Marine Corps, and I think one way or the other. There's a fair chance he'll be modern and the Republican Party, both representative was named Dan Crenshaw and Matt Gates have taken a position. And they've sent, they've retweeted this, these videos around around the entire country, the world. They are trying to exacerbate the martyrdom already. So I mean, you know, it's really a hard choice for the President, I think, to take and for that matter the Secretary of Defense and the Joint Chiefs, to find a way to achieve what President Kennedy achieved by calling on a holiday. It's this is a hard one, because both sides are risky. It is interesting though. I don't believe former President, what's his name. Trump, Trump has said anything about this but it but it is interesting because he's the person that made the deal with the Taliban. And, and, and now what you're seeing I don't want to drift off into politics that would be sort of mission creep here, but, you know, it would be awkward for President Trump to fault the incumbent president. The fact that he actually did, you know, get us out of Afghanistan. Anybody can second guess, you know, how things were handled tactically but in terms of the, the basic decision. I think that President, former President Trump is stopped to complain. Well, that wouldn't stop him. I mean, take it's a technical estopement wouldn't necessarily stop him. So my question to you we only have a couple minutes left Jane and I would like to get to this larger piece is how important is this case, this circumstance. The decisions now to be made by the Secretary of the Army, rather than the Secretary of Defense, and the Joint Chiefs and the President on how to deal with this fellow in this, in this context where martyrdom has already started. What do they have to do and why do they have to do it. How important is it to the Marine Corps to morale, you know, to good order and discipline in the United States military. How important is it. This is this a, you know, a turning point of some kind. It's certainly a data point. It's one of those incidents that those of us who have nothing better to do than to study military justice over the long haul. Remember, I mean, we will, we will remember this incident just as you remember various people who, you know, have hit the third rail one way or another in their military service whether it's General Billy Mitchell, or, or other people who have become famous in an unfortunate way let's say. I think this is a tremendously important thing and here's why. The United States Marine Corps is extremely proud organization and justifiably. It has a long history. It's, it's very conscious of that history. It has a brand. And really, that's really the proposition I don't use that word in a casual or dismissive way. The fact is it has a brand in which it has invested an enormous amount of energy and resources and lives and lives. The American knows from the halls of Montezuma. Ewo Jima. And so forth tarawa. These, these are hardwired into American culture, and to permit this to pass. This is an official condemnation of some public nature from the front office. I think would be intolerable for the Marine Corps. I'm not in the Marine Corps, but I know people who are. Certainly there are people in the Marine Corps who are have opinions as to the way cobble occurred and unfolded. That's okay. This is a democracy. But my sense is that people who have a deep investment, whether in the officer core or the staff NCOs the staff non commissioned officers or the junior Marines, they're all bound together in love for their force. They're all in love for the our core. And I think that is going to play a potent role in the decision making. So my, if I were a predictor. I would say the commandant of the Marine Corps of will take steps, whether it's face to face with this officer will be frog marched in and chewed out in a way that he will never forget and the world will be aware of. Whether it's more quiet. And then the question will be, will the president of the United States, save this officer's cookies. And, you know, in terms of reputation and my hunch is that he won't. We can't afford not to address it. And my last question to you permit me my last question it's the, it's the Charles Dickens ghost of Christmas future question. What happens if we do nothing. What happens to the Marine Corps, what happens to the military, what happens to the public and international perception of our military. I think that the damage would be incalculable recruiters will feel the pain. People loved ones of serving personnel will be aware of this. But it will take the entire military community down a notch down a peg in a way that I don't think will serve the public interest. Thank you gene gene find out an expert for decades and decades and military justice, a teacher of military justice at Yale law school and at NYU law school, my alma mater. Thank you so much for joining us today Jean. Thank you.