Watada case could define free speech for military

Anna Badkhen, Chronicle Staff Writer

Thursday, February 8, 2007

As opposition to the war in Iraq spreads among Americans, the question of whether servicemen and women have the right to voice their own criticism of the war has come to the forefront.

Next month, an Army court-martial at Fort Lewis south of Seattle is expected to determine the extent to which the troops must give up their right to free speech as it decides whether 1st Lt. Ehren Watada, 28, the first commissioned officer to be court-martialed for refusing to deploy to Iraq and denouncing the war as illegal, violated the Uniform Code of Military Justice by making his anti-war statements public. Other officers have refused to deploy, but none has done so publicly.

The outcome of his trial has implications that go beyond Watada's freedom. The eventual decision could set an informal precedent establishing the limits of free speech in the U.S. military, say experts on military law.

"Suppressing free speech in any form does not come naturally to democracies, but military discipline requires it," said Loren Thompson, a defense analyst at the Lexington Institute, a centrist think tank in Arlington, Va.

"It is set in stone that military people don't have as much freedom of speech as civilians -- but how much less is highly flexible, it is judge-determined," said Reber Boult, an attorney in Albuquerque who has worked in military law. "Other military judges will see what happened to Lt. Watada and be influenced in their decision."

Watada, from Honolulu, refused to deploy to Iraq with his 3rd Brigade of the 2nd Infantry Division in June, saying the war was unlawful. He accused the Bush administration of falsely using the attacks on Sept. 11, 2001, as a pretext for invading Iraq, and said U.S. troops have mistreated the Iraqis.

"The wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it's a contradiction to the Army's own law of land warfare," Watada said in a video statement he released at a news conference in Tacoma, Wash., in June, when he publicized his decision not to deploy to Iraq. "My participation would make me a party to war crimes."

Watada's lawyers argue that the lieutenant was entitled to speak against the war under the rights to free speech granted by the U.S. Constitution. But military prosecutors say his public defiance violates military law and that Watada's statements have disgraced him and the military.

The discrepancy between the case military prosecutors are trying to make and the defense Watada's lawyers are offering illustrates the inherent disparity between the rights of civilians and military personnel, said Kathleen Duignan, executive director of the National Institute of Military Justice, which promotes fairness in military justice.

"The rights are obviously not the same as they are for civilians," Duignan said.

"Clearly you give up your rights as a member of the military," said one Army officer familiar with the case, who spoke on condition of anonymity because he was not authorized to comment on the issue. "The military can tell you to go run up that hill and kill somebody, and you'll probably die."

The U.S. Supreme Court has defended curbing the rights of military personnel on several occasions, recognizing, in 1953, that "the military constitutes a specialized community governed by a separate discipline from that of the civilian." Curtailment of some constitutional rights is necessary to maintain discipline among the troops, said the Army officer.

Some military experts agree.

"Any public criticism of government war policies by military personnel erodes the authority of the command structure. Soldiers are free to think what they want and vote accordingly, but when they question war policies in a public setting, they are eroding the command structure that makes the whole enterprise work," Thompson said.

How much -- or how little -- troops can talk about their political views is open to interpretation.

The Uniform Code of Military Justice, a federal law enacted by Congress, specifically prohibits officers from using "contemptuous words" against the president, Congress and some government officials, and from showing "disrespect" toward superior officers.

But Watada is charged under the more broadly-phrased Article 133 of the code: "Conduct unbecoming an officer and a gentleman."

"Article 133 is essentially the catchall for anything, intended to encompass cases like this," said Duignan. "The military makes an argument that anything that could be considered to be detrimental to discipline in the armed force" falls under this article.

Military experts and service members often disagree on how far the code limits the troops' rights.

James Carafano, a senior research fellow at the Heritage Foundation and a former director of military studies at the Army's Center of Military History, said officers can express their political views as long as they are not talking as members of the military and are not wearing a uniform.

"As an individual, he can have all the right he wants," Carafano said.

But the Army officer said officers remain members of the military as long as they serve, in uniform or out, and therefore cannot ever express their political opinions in public.

"We don't get to decide to do or not what the civilian leadership tells us to do, and that's what keeps the military subjugated," he said.

At a time when public discontent with the Bush administration's Iraq strategy is at an all-time high, the last thing commanders want to see is ranks of free-speaking officers offering their anti-war opinions in public and setting example for other troops, Duignan said.

"If everybody refuses to deploy, there would be no way to deploy for war," she said.

E-mail Anna Badkhen at abadkhen@sfchronicle.com.

Well, it really boils down to what kind of country you want to live in.

If you want to let your military be outspoken and trying to shape your nations policies I'd suggest you move to some place like Nicaraugua or Haiti.

I'm disappointed that he is only charged with one:

Art 92 - Failure to obey written order or Regulation
Art 87 - Missing Movement
Art 88 - Contempt towards Officials

and here's one special for this case:

Art 134-1 Impersonating a Commissioned Officer;

If he is so concerned for Civilian Iraqi's and war crimes why wouldn't he want to lead troops and set the example?

At least the kids that tell me they only joined for the college money are being honest.

1SG White

I agree, that's why I went. But the "impersonating" article is stretching, and yet I understand.
How is your adaption to the investor-based-world? Have you come to grips with this place yet?
If so...tell me how...I'm still tryin'. Tryin' to understand the mission and the eventual outcome.
And all those who ony know it from the evening news...for the few seconds they watch.

Every Day is different... I've been doing a little investing myself see http://www.kiva.org and possibly buying a place up in the mountains far far from the nearest Wal-mart...

As far as my mission it's all about raising the boy and caring for the neighbors, family and the next guys on the rotation...... the rest is just silly bullsh!t.

As they say:

God grant me the serenity to accept the things I can not change, the courage to change the things I can, and the wisdom to know the difference.

PEACE

That's why the wife and I live on a rock road that goes to and from no where. We can raise enough to keep us and our animals alive. Bought the wife a loom and next year I'm learning how to card and spin.

Seems I heard that prayer someplace 1st Sgt, one day at a time, eh?

I have only cursery knowledge of the 12 steps, but the prayer has always been one that I lean to on occasion.

I'll bet the wife was thrilled with the loom; was that a Valentines day gift? LOL

Actually it was her birthday present. She's been making scarfs and such so far, it's big enough though to make a piece of fabric up to 36 inches wide so she can actually weave cloth and make clothing with it.

The previous year for her birthday I got her a sewing machine that does embrodery. Boy is it swell. You can take a pattern and digitize it then upload it off the laptop computer into the sewing machine. It will stitch any image you can scan. She even put my three up, four down and the bomb on a pair of my skivie shorts.

And I'm an old reformed (one day at a time) drunk so I know that prayer intimately.

say a prayer for Wataada, I'm sure he'll need a few before all is said and done.