The Limits of Free Speech in the Military:
Can Public Expressions of Discontent by U.S. Troops in Iraq Be Punished?

By DEAN G. FALVY
Thursday, Jun. 19, 2003

As if the fruitless hunt for weapons of mass destruction and persistent rumors of intelligence manipulation weren't annoying enough, the Pentagon faces a new headache: rumblings of discontent from soldiers in the field.

The putative liberation of Iraq has turned into grinding, dangerous occupation duty - exacting a steady toll in lives and morale. And some disgruntled troops have begun complaining about ambiguous missions and delayed homecomings.

You know things must be serious if an Army private feels compelled to bend the ear of a New York Times reporter to get a message to the Secretary of Defense. After all, Mr. Rumsfeld has asserted the power (so far unchecked) to assign cages at Guantanamo Bay to people whom he deems "enemy combatants," not excluding American citizens. In other words, you don't mess with this guy.

And something about the Secretary's demeanor suggests that he would not be amused to find the words "Rumsfeld" and "sorry ass" in the same sentence, let alone as the ramblings of a distant subordinate on the front page of his Sunday Times.

So is Private O'Dell in deep trouble? Surprisingly, he may not be. Military conduct codes do not reach his comments.

The Military and Free Speech

The military is perhaps not the best career choice for someone bent on the vigorous exercise of civil liberties. As countless drill sergeants have informed their new recruits, "We're here to defend democracy--not to practice it."

Qualities valued by an open society--respect for the individual, independent thinking, skepticism about leaders, the nobility of principled dissent--do not tend to thrive in a military environment. For obvious reasons, self-sacrifice, discipline, order and obedience to authority tend to be emphasized instead. For every Tom Cruise who wishes it were otherwise, there's a Jack Nicholson to bark at him, "You can't handle the truth!"

Surely, without respect for the chain of command, a military organization would simply disintegrate in the heat of battle. So it is not surprising that the free speech rights of soldiers are sharply curtailed when it comes to criticizing their superiors.

But how sharply? Not as much as you might think. Private O'Dell, at least, seems to be in the clear.

Why O'Dell's Comments Are Not Punishable Under the UCMJ

But a closer look shows that O'Dell's comments fall outside Article 88, which states:

"Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct."

Fortunately for O'Dell, he's a private - not a "commissioned officer." He can be thankful for his lack of stripes, because there is no way Article 88 can be applied to him without them.

It turns out that O'Dell was wise in his choice of targets as well. For if he had "behaved with disrespect" toward a superior commissioned or non-commissioned officer - from Gen. Tommy Franks down to his own platoon sergeant,. he could have been subject to court martial under Articles 89 and 91 of the UCMJ. These articles apply to all soldiers, including enlisted men and women. But the civilian officials who are specifically protected from criticism in Article 88, including the Secretary of Defense, are not mentioned in Articles 89 and 91.

Why the UCMJ Treats Speech By Enlisted Men and Officers Differently

What is the reason for the difference? Why can a foot soldier dis the civilian Secretary of Defense, but not the Army Chief of Staff? Is the Pentagon simply taking care of its own?

Not likely. The UCMJ is not the product of military fiat, but rather a 1950 act of Congress. Congress intentionally chose to narrow the prior version of Article 88, which had covered all soldiers, in order to ensure that it applied to officers but not enlisted personnel. From a policy standpoint, why did it chose to do so?

First, Congress probably recognized that the primary purpose of Article 88 should be to prevent active military officers from meddling in politics--a persistent problem in other republics, both ancient and modern.

At the same time, there was probably a recognition that earlier versions of Article 88 had overreached in punishing the views of rank and file soldiers. While serving in previous conflicts, dozens of enlisted men were court-martialed for expressing mildly derogatory views about Presidents Lincoln, Wilson and Roosevelt, even in private conversation and correspondence.

That makes sense, for many enlisted personnel are not far removed from civilian life. Their military service is more likely a temporary status than a career choice.

Indeed, in the case of draftees, who provided the bulk of the U.S. fighting force in the Civil War, both World Wars, Korea and Vietnam, it is not even a voluntary status. In a democracy, to deny conscripts the right to voice criticism of their own civilian leaders--very often the same ones who sent them to fight and die--seems grotesque.

Moreover, it was arguably in Congress's own self-interest to let enlisted personnel speak out. Practically speaking, the grumbling of enlisted personnel can give valuable signals to elected officials about the true course of military campaigns, which may otherwise be filtered out by overly optimistic generals. Congress is more powerful when it can contrast optimistic assessments such as Rumsfeld's with on-the-ground complaints like O'Dell's.

Why Officers Must Still Hold Their Tongues

Commissioned officers are not so lucky when it comes to political expression. In recent years, Article 88 has ensnared several would-be commentators.

Actual court martials have been very rare. But administrative punishments, forced retirements and potentially chilling warnings have not.

During the Vietnam War, an Army lieutenant was successfully court-martialed for marching in an antiwar demonstration while carrying a sign that assailed President Johnson's "ignorance" and "fascist aggression."

More recently, a number of military officers faced disciplinary action after drawing attention to deficiencies in President Clinton's moral character - an activity which for civilians seemed to constitute a hearty national pastime throughout the 1990s. These cases, while relatively few in number, became emblematic of Clinton's difficult relations with the military, particularly its professional officer corps.

For example, Maj. Gen. Harold Campbell was compelled to retire after referring, no doubt affectionately, to the "gay-loving," "womanizing," "draft-dodging" and "pot-smoking" President in a speech at an Air Force banquet. Other officers received reprimands for characterizing their Commander-in-Chief as a "lying draft dodger," a "moral coward," and an "adulterous liar" in letters to their local newspapers.

Even retired officers may be at risk when they speak out - as Lt. Col. Michael J. Davidson noted in his July 1999 Army Lawyer article, "Contemptuous Speech Against the President." Davidson noted that Article 88 may apply to retired commissioned officers by virtue of other articles of the UCMJ.

No charges have been brought against a retired officer for such an offense since 1942, and most retired commentators are probably oblivious to the risk. But the theoretical possibility does exist.

One wonders whether retired Lt. Col. Oliver North thought about it when he declared that Clinton "is not my Commander-in-Chief." Or if retired Lt. Col. Robert Patterson, a former military attache in the Clinton White House, worries that he might be court-martialed for his recently-published, best-selling tell-all screed, Dereliction of Duty: The Eyewitness Account of How Bill Clinton Endangered America's Long-Term National Security. Yet somehow one suspects that such a prosecution would not be at the top of the Pentagon's priority list under Donald Rumsfeld.

Comments by officers during the aftermath of the 2000 election might have been a bit more risky, as the counting of military absentee ballots became embroiled in the Florida recount controversy. At that time, Democrats attempted to challenge certain military ballots based on the technicalities of Florida election law. In response, some officers became so vociferous in their criticisms that two major military commands issued general warnings about Article 88. One cautioned officers that "this is not the time to send e-mails or otherwise get involved in an improper or unprofessional manner with the continuing controversy over the presidential election." Another even suggested that commanders use the opportunity to conduct educational sessions "on the question of civilian control of the military." (In the end, however, no officers were charged, and the Democrats hurriedly dropped their challenges to military ballots.)

The Rare Criticism President Bush Has Faced From the Military

As befits a Commander-in-Chief in more or less perpetual wartime, the current President Bush generally enjoys enthusiastic support from the nation's officer corps. But there are exceptions.

In May 2002, Air Force Lt. Col. Steve Butler sent a letter to the editor of the Monterrey County Herald, alleging that President Bush knew about the impending 9/11 attacks, but "did nothing to warn the American people because he needed this war on terrorism." Col. Butler offered the following theory about the Bush presidency:

"His daddy had Saddam and he needed Osama. His presidency was going nowhere. He wasn't elected by the American people, but placed into the Oval Office by the conservative supreme court. The economy was sliding into the usual Republican pits and he needed something on which to hang his presidency.... This guy is a joke. What is sleazy and contemptible is the president of the United States not telling the American people what he knows for political gain."

After the letter was published, Col. Butler was suspended from his position as vice-chancellor of the Defense Languages Institute.

If they are allowed to, the tempest may well remain confined to its teapot. But if the occupation drags on, and many of the hundreds of thousands of foot soldiers serving in Iraq begin to feel as Private O'Dell does, that could spell trouble for President Bush in next year's election.

There's no telling whether the rumbling among the rank and file represents a ripple or a gathering wave. But at least one thing is clear: the law won't do much to stop it.


Dean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law.

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