Watada Case Could Define Free Speech For Military

Watada Mistrial could define free speech in the military
by Anna Badkhen

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.

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