A military tribunal I can support
You see, the Uniform Code of Military Justice applies not only to active duty service members, but also to "retired members of a regular component of the armed forces who are entitled to pay." Duke retired from the Navy, which clearly puts him in that category.
While it is the DoJ's responsibility to conduct fraud investigations involving government contractors (according to the Army's Field Manual on criminal investigations), it is not within the DoJ's purview to restore the honor of the Navy. Justice did not include in its plea agreement a violation of Title 18, USC, Section 207, which states that retirees that can be punished by up to a year in jail for scamming the government for their own gain.
I believe that an example must be made of Cunningham that proves even war heroes cannot risk our service member's lives by subverting the contracting processes. Do I know that people were hurt or put at risk by Cunningham's specific actions? Honestly, no, but that's beside the point. Trust was placed in Cunningham as an officer and as a congressman to follow the rules which exist to protect both public funds and the lives of our service members. He violated that trust. Therefore, the Navy should begin court martial proceedings against Cunningham, charging him with "conduct unbecoming an officer and a gentleman," Article 133 of the UCMJ, and those proceedings should decide whether or not Cunningham should keep his rank and his retirement pay.
Is this harsh? Damn straight.
But it's also supported by law. In 1987--the year Cunningham retired, incidentally--the Court of Military appeals reminded everyone of the following in their finding in Overton v. the United States of America.
Retired army and naval officers have been subject to court-martial jurisdiction since the Civil War. Act of Aug. 3, 1861, ch. 42, Sections 18, 24, 12 Stat. 290, 291; Rev. Stat. Sections 1256, 1457 (1878 ed.). Article 2(a)(6), in particular, traces its lineage to the Naval Service Appropriations Act of 1916, ch. 417, 39 Stat. 589-591. See also Naval Reserve and Marine Corps Reserve Act of 1925, ch. 374, Sections 6, 10, 43 Stat. 1081-1082, 1083; Naval Reserve Act of 1938, ch. 690, Section 6, 52 Stat. 1176. Before enacting Article 2(a)(6) of the UCMJ in 1950, Congress considered the testimony of several witnesses that court-martial jurisdiction over persons in an inactive duty status was unnecessary and unfair and should be limited. Uniform Code of Military Justice: Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on Armed Services, 81st Cong., 1st Sess. 706, 749, 864-870 (1949); Hearings on S. 857 and H.R. 4080 Before a Subcomm. of the Senate Comm. on Armed Services, 81st Cong., 1st Sess. 329-330 (1949). Congress rejected the argument that these persons were simply pensioners who were no longer members of the armed forces in favor of the conclusion that these persons were still members of the military who receive lesser pay for current but reduced services and thus should continue to be subject to court-martial jurisdiction. Because "Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military" (Solorio v. United States, slip op. 12) and because "'judicial deference * * * is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged'" (ibid. (citation omitted)), Congress's judgment on this subject is entitled to respect from the courts.Update: You must click over to the comments of the crossposted version of this article at Main and Central. Len Cleavlin, who blogs at Dark Bilious Vapors was Overton's defense lawyer in the case and suggests that to court martial Cunningham would be violating protections against double jeopardy. He also says that, while he thinks the current court would go along with such an action, liberals ought not be siding with them.