Fire at Will?

President Obama removed Gen. McChrystal from his job as top commander in Afghanistan. Can he fire him altogether?

The president removed Gen. Stanley McChrystal from his job as top commander in Afghanistan on Wednesday. Earlier in the week, Rolling Stone published an article in which McChrystal and his subordinates were quoted making derisive comments about the administration; pundits were soon arguing over whether Obama should “fire” the general for insubordination. Is the president allowed to put a military man on unemployment?

No. The president is the commander in chief of the armed forces, not the CEO. As such, he doesn’t enjoy Donald Trump-like powers to summarily fire service members. The most the president can do to an officer on his own is recall him from an assigned post. That’s what happened to McChrystal, who no longer commands U.S. and NATO forces in Afghanistan but remains a four-star general on active duty, for now. For very high-ranking soldiers, this sort of move usually leads to a voluntary retirement, because it signals an end to any further career advancement. (Federal law promotes this “up or out” system in the military. Top brass who are passed over for promotion are eligible for early retirement.) The president can also marginalize an officer by assigning his duties to someone else or announcing his successor a year in advance. If McChrystal declines to retire, and Obama wants him out of the service entirely, the president can recommend that the general face a court-martial or an administrative separation board. But Obama can’t dictate the outcome.

Job security in the military depends on years of service and rank. Commanders wouldn’t have a hard time sacking any enlisted member who served for fewer than six years, as long as that member’s discharge status was honorable or general. Senior enlisted members, officers, and those accused of misconduct are entitled to a hearing. If the problem is incompetence, mental illness, drug abuse, homosexuality, or parental duties getting in the way of a soldier’s job, the administrative separation board handles the case. Accused criminals appear before the dreaded court-martial. Both panels consist of soldiers at the same rank or higher than the respondent.

McChrystal’s behavior could subject him to a court-martial. Various military rules have prohibited soldiers from bad-mouthing politicians since the nation’s founding, and more than 100 soldiers have been punished for the offense. (The snarky comments of McChrystal’s coterie put Obama in good company. More soldiers have been prosecuted for criticizing Franklin Delano Roosevelt and Abraham Lincoln than any other president, by far.) These days, such behavior is outlawed by Article 88 of the Uniform Code of Military Justice, which entered into force in 1950 and remains relatively untested. It has only been used once, when a Vietnam-era Army lieutenant was fired and sent to jail for carrying a sign that said “Let’s Have More Than A Choice Between Petty Ignorant Fascists in 1968” on one side and “End Johnson’s Fascist Aggression in Viet Nam” on the other. McChrystal’s comments aren’t nearly as provocative, so there’s no way of knowing how a court-martial would decide the case.

Gen. Stanley A. McChrystal

Not all fired generals go quietly. Many commentators have compared McChrystal’s comments to the conduct of Gen. Douglas MacArthur, the Supreme Commander of Allied Forces in the Pacific during the Korean War. MacArthur repeatedly butted heads with President Truman. He launched an unauthorized offensive and openly campaigned for Republican politicians. When MacArthur penned a letter to Rep. Joseph Martin of Massachusetts advocating the bombing of China, Truman removed him from his post. While MacArthur grandiosely proclaimed that “old soldiers never die, they just fade away,” he did not. The celebrated general delayed his retirement for more than a month, staying in the limelight long enough to belittle the president’s foreign policy in an address before Congress and to serve as the star witness in an investigation into the conduct of the Korean War. Fortunately for Obama, there is no indication that McChrystal intends to pull a MacArthur.

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Explainer thanks Geoffrey Corn of the South Texas College of Law, Michelle Lindo McCluer of the National Institute of Military Justice at the American University Washington College of Law, and Sean Watts of Creighton University School of Law.

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