Those Advocating Sedition Need To Be Held Accountable –Maybe in a Military Court

John Frankenheimer’s famous 1964 motion picture Seven Days in May has been on my mind lately. In this award-winning film, fictional Air Force General James Scott, played by Burt Lancaster, orchestrates a plot for a military take-over of the American government. The general and the military establishment are unhappy with an arms control agreement negotiated by the president, played by Academy Award winning actor Frederic March. Although filmed in black-and-white, the cinematography is memorable and the screenplay by Rod Sterling (famous for his television series The Twilight Zone) is gripping.

The coup seems destined to succeed but is uncovered by an aide to General Scott, Marine Colonel Jiggs Casey, played by Kirk Douglas. After the coup has been discovered and the plotters dismissed, Scott confronts Casey in the Pentagon. “Do you know who Judas was?” Scott scornfully asks his aide.

“Yes, I know who Judas was,” Colonel Casey tersely replies. “He’s a man I worked for and admired, until he disgraced the four stars on his uniform.”

Disgracing the stars once worn on American uniforms seems to be in vogue. The recent accusations of wide-spread voter fraud in the 2020 presidential election being made by two retired senior military officers, Army Lieutenant General Michael Flynn and Air Force Lieutenant General Thomas McInerney, with both arguing that the election has been stolen from President Donald Trump through some sort of massive plot, is disturbing. Flynn and particularly McInerney have spun a fantastic yarn arguing that votes were somehow changed through a cyberattack on voting machines, coordinated by a CIA server in Frankfurt, Germany; that this CIA facility was attacked by an Army unit resulting in several casualties; that the Army effort to stop this CIA operation and other electoral misdeeds is being run by the 305th Military Intelligence Battalion; and that without this treason Trump would have actually received eighty-five million votes.

McInerney claims to have evidence of all this, evidence that for reasons he does not explain has not been submitted in any of Trump’s sixty or so court challenges to the election. He seems to be unbothered by the fact that the 305th MI Battalion is a unit based in Ft. Huachuca, Arizona that trains young enlisted soldiers, has no operational capability, and has not been deployed since World War Two. Moreover, despite the breathless public assertions of Trump’s attorneys about massive fraud, when these same attorneys appear before a judge as officers of the court, allegations of massive fraud suddenly disappear. Instead, evidence of “irregularities” is substituted that has, in all cases, been judged “non-credible.” But this has not prevented Flynn and McInerney from continuing with their wild accusations.

But what is more disturbing than Flynn and McInerney’s fundamental fantasy is the remedy they advocate. As McInerney stated during a right-wing radio interview, President Trump should evoke the 1807 Insurrection Act, that he should declare martial law and suspend habeas corpus, that he should declare the recent election invalid, that he should order a new election supervised by the military, and that those engaged in this imagined treason should be tried before military tribunals.

McInerney is fully unbothered by the enormous logic disconnects in his delusions. He is essentially arguing that a vast array of federal, state and local officials is engaged in a massive, treasonous plot. This plot would include Republican and Democratic governors, secretaries of state, attorneys general, state electoral canvassing boards, local canvassing boards, and thousands of precinct officials and poll workers from eastern Pennsylvania to western Nevada.

This enormous conspiracy would have required the assistance of Chris Krebs, the recently dismissed Director of the Cybersecurity and Infrastructure Security Agency. It would mean that FBI Director Christopher Wray had missed or ignored an enormous web of treachery. And it would mean that CIA Director Gina Haspel has been overseeing a sinister effort to frustrate democracy, and that her organization has been physically attacked by forces controlled by Acting Defense Secretary Christopher Miller. All of these individuals are Republicans appointed to their positions by Trump, meaning that his administration would literally be at war with itself.

Even the fertile mind of Rod Sterling could not imagine such a story, and if he did imagine it, he certainly could have never sold it to a motion picture producer.

But what is actually disturbing here is what McInerney and Flynn are advocating, which is clearly illegal and unconstitutional. They are the ones who need to be held accountable, and by the very institution they have called upon to implement their ludicrous plan: the US military.

Pennsylvania Attorney General Josh Shapiro, when filing his response to the Supreme Court regarding the Texas electoral challenge, said it was a “seditious abuse of the judicial process.” The word “seditious” is the adjectival version of the noun “sedition.” And sedition means, “overt conduct, such as speech and organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or rebellion against, established authority.”

Generals Flynn and McInerney, with their statements, assertions, and calls for extreme action are engaged in sedition. And this is shockingly dishonorable behavior for military officers who swore and oath to “support and defend” the constitution of the United States.

Were Flynn and McInerney still on active duty they could be arrested by military police and charged with violating section 894, article 94 of the Uniform Code of Military Justice, the American military’s judicial code, commonly known in the military community as UCMJ. The UCMJ prescribes and describes both legal offenses and the procedures by which they are to be judged, including courts martial.

The UCMJ allows for the recall of discharged and retired military personnel to face trial for offenses they may have committed while on active duty. In addition, as reasoned by several authorities on UCMJ, retirees can also be recalled and charged for offenses committed during retirement if they have not resigned their commissions and have maintained a voluntary relationship with the military. Under this reasoning, a voluntary relationship includes the receipt of retirement pay.

Neither Flynn nor McInerney have resigned their commissions, and both are quite certainly drawing retirement pay. Section 802, article 2 of the UCMJ states that among those subject to military law are, “Retired members of a regular component of the armed forces who are entitled to pay.” That would include these two retired officers. And article 94 states that, “Any person subject to this chapter who — with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition.”

It is unclear under UCMJ who would file such charges against Flynn and McInerney and order their arrest. Certainly President Trump, who has shown a habit of interfering in UCMJ proceedings — usually to dismiss charges — would not do so. But what might happen in the Biden administration? Might Commander-in-Chief Biden use UCMJ to discipline these two retired officers. Probably not — but he could.

As for Flynn and McInerney’s call that the election be redone and supervised by the military, that is in direct contravention to the Posse Comitatus Act of 1878, legislation prohibiting the use of federal troops to enforce civilian law that was created in response to the presence of federal troops at voting polls. In addition, Section 593 in the Federal Criminal Code (Title 18) states that an officer who “imposes or attempts to impose” changes in conducting general or special elections in a state “different from those prescribed by law,…shall be fined under this title or imprisoned not more than five years, or both.”

Numerous commentators have described Flynn and McInerney as “unhinged.” And they clearly are. But as retired military officers who have not fully severed their ties with the military establishment, they are also advocating steps in support of Trump that are illegal in terms described in both military and civilian law. They could be held accountable. They likely should be held accountable. But at the very least they need to be made aware of their vulnerability to potential disciplinary action, if they still have enough reasoning capacity to care. In any event, they should probably watch Seven Days in May, and listen carefully to the concluding words of fictional Marine Colonel Jiggs Casey.