MILITARY JUSTICE; Soldier tests free speech limits

(By Rebecca Carr, originally published in the Atlanta Journal Constitution, July 9 2006)

Washington --- Ehren Watada is a soldier who doesn't want to fight in Iraq.

Watada, 28, an Army first lieutenant based at Fort Lewis, Wash., insists that he is not a conscientious objector. He has even offered to fight in Afghanistan. But he contends that agreeing to fight in Iraq would violate his oath as a soldier to resist "unlawful orders."

At a June 7 news conference, Watada denounced the war and accused the Bush administration of lying in order to start it. As a result, the Army formally charged Watada last week with publicly declaring the war "illegal," criticizing the president and refusing to deploy to Iraq with his unit last month.

Watada's case, his attorney says, raises important questions about the First Amendment rights of soldiers and what punishment they should face for questioning the actions and orders of superiors.

The Army, and some legal experts, say Watada does not have the right to openly criticize the war in a way that would be contemptuous toward a superior officer, including the commander in chief. He also does not have the right to disobey an order to fight, they say.

Watada, wearing civilian clothes at his news conference at a Tacoma, Wash., church, told reporters that he had researched the evidence for going to war in Iraq and concluded that the country entered the war under false pretenses.

"The war in Iraq violates our democratic system of checks and balances," he said, according to military charging documents released by the Army. "The wholesale slaughter and mistreatment of the Iraqi people is not only a terrible moral injustice, but a contradiction to the Army's own law of land warfare. My participation would make me party to war crimes."

In addition, Watada said he became "ashamed of wearing the uniform" after reading about "the level of deception the Bush administration used to initiate . . . this war."

The next day, Watada's superior officer told him that those statements could be considered "unbecoming of an officer and a gentleman" and "contemptuous" against a superior officer --- both violations of the Uniform Code of Military Justice, according to Eric Seitz, Watada's lawyer.

Now that Watada has been charged, the next step is for an Army officer to conduct a pretrial inquiry known as an Article 32 investigation, which is similar to a grand jury investigation in civilian criminal courts.

The officer will review the charges and hold a hearing on evidence. If the officer agrees with the charges, he will order a court martial.

If Watada is convicted, he could face seven years in a military prison, forfeiture of all pay and a dishonorable discharge.

"You can't decide afterward that it's unlawful," said Sheldon Smith, an Army spokesman at the Pentagon. Commissioned officers are expected to weigh their personal feelings against the well-being of the troops they are appointed to command, he said.

Watada's words and refusal to deploy could cause other soldiers to think negatively about the war, Smith said. "What message does it send? They are putting their lives on the line to do what is honorable, and the man who is supposed to be in charge of them is backing out?"

Legal experts say that a soldier's right to free speech is a gray area, and cases involving it are rarely prosecuted in a military court. The last time a soldier was prosecuted for making contemptuous statements about a superior officer was in 1965, when an officer took part in a Vietnam war protest.

A late conversion

In 1974, the U.S. Supreme Court ruled that the military code trumps free speech rights for certain kinds of expression. While military personnel are not excluded from First Amendment protection, the court found that there may be occasion to restrict speech to ensure discipline in the ranks.

"It may seem ironic that some of the very constitutional rights that soldiers swear an oath to defend are not always or fully available to the soldiers themselves," said Paul K. McMasters, ombudsman at the First Amendment Center, a nonprofit educational organization based in Virginia. "But the military deems that condition essential to its mission."

The military can restrict service personnel from displaying political bumper stickers, wearing religious garments and criticizing the president in public, said Jonathan Turley, a professor of law at George Washington University who specializes in constitutional issues.

But enforcement is not always consistent, Turley said. Usually the military will ask soldiers to tone down their speech or remind them to be apolitical rather than prosecute them, he said.

What constitutes disrespectful language is vague and subject to interpretation, said Seitz.

"You do not surrender your First Amendment rights when you become a soldier," he said.

The "Nuremberg principles" that evolved from an international inquiry into the atrocities of World War II dictate that an officer has an obligation to reject orders he or she considers illegal, Seitz said.

Carolyn Ho, Watada's mother, said her son believed that he had a duty to disobey illegal orders.

"He is sending that message to all the armed forces, the message that they need to examine carefully the war they are choosing to fight," Ho said.

Watada says he joined the Army in a patriotic fervor the summer after he graduated from Hawaii-Pacific University in the summer of 2003. His view about the war did not change until January of this year, when his commanding officer told him to research Iraq because he would soon be sent there, according to Ho.

As Watada researched the roots of the war, he realized that the Iraqi weapons of mass destruction cited as a rationale did not exist, his mother said.

"He weighed the circumstances and felt that he had no choice but to say no," said Ho.

An uphill struggle

So Watada told his commander that he could not support the war. He tried to resign his commission, but by March of this year, it became clear that his superiors were not going to accept his resignation. He hired Seitz, a well-known military defense lawyer, and began negotiations behind the scenes.

When those negotiations sputtered, Seitz said Watada decided to go public with his views on the war. He has stopped talking to the media until the investigation is over.

Most legal experts and peace groups say that Watada has a difficult road ahead to avoid punishment for criticizing the war and refusing to deploy.

"I think he's trying to break new ground, but I think he's going to dull his pickax in the process," said Eugene Fidell, a Washington lawyer who specializes in military legal issues.

The question is whether the government will prosecute him for disloyalty or for the more straightforward violation of refusing to deploy with his unit.

"I don't think he has too much legal ground," said Theo Sitther, a lobbyist at the Center on Conscience and War, a nonprofit organization founded 65 years ago by religious groups to support soldiers who object to fighting.

"When you join the military, you lose your right to be an individual," Sitther said. Even the term GI, a common label for soldiers, stands for "government issue," he said.

But James R. Klimaski, a member of the National Lawyers Guild Military Law Task Force, said he does not think the Army will prosecute Watada for speaking his mind on Iraq.

"I don't think they would want to prosecute him for what he has said because then they would have to try the reasons for why we went to war," Klimaski said. (The Military Law Task Force is an anti-war group that began in the 1960s, counseling draft resisters, according to the group's Web site.)

Watada is not alone in his complaints about the war.

Recently, a group of retired generals called Defense Secretary Donald Rumsfeld unfit for service, citing flaws in the administration's statements and pre-war intelligence on Iraq. But those officers are retired, and some of them kept their complaints to themselves while serving in Iraq.

The military has allowed other forms of free speech during the Iraq and Afghanistan wars, including ones that have made the Pentagon look bad.

Pictures taken by soldiers, for instance, formed the cornerstone of allegations about the abuse of Iraqis by U.S. troops in Abu Ghraib prison.