Speaking freely:
When troops are critics, civilian standards don’t apply
By Kelly Kennedy
Times staff writer
A Navy chaplain who stood in front of the White House in street clothes recently protesting what he called “religious harassment” by the Navy for not allowing him to pray “in Jesus’ name” told Army Times on Jan. 6 that he would repeat the action the following day, noting this time he had been “invited to appear wearing his uniform.”
Just one problem: In an immediate response to the initial incident, L.E. Pyle Jr., commanding officer at Naval Station Norfolk, Va., wrote the chaplain with the warning that he “not … wear your uniform for this appearance or any other appearance without my express prior permission.”
Whether Klingenschmitt intended to follow that order remained unclear at press time.
The issue seems fairly clear-cut. Whereas controlling what troops say while in civilian attire has sometimes proved a tricky matter, there are some things service members are clearly not allowed to do while representing the military.
Officials have several options under the Uniform Code of Military Justice by which to hush soldiers, whose First Amendment rights are restricted. Those restrictions generally are aimed at maintaining good order and discipline so that public criticism of members of one’s chain of command is forbidden.
Although such criticism and prosecution for it have historically been rare, a soldier today has more opportunities to run afoul of the UCMJ than ever before. Accounting for the increase in opportunity is the explosion of new information technologies, including the Internet, Web logs, personal video cameras and cable television.
Considering that, soldiers have proved notably deferential to the restrictions.
In fact, no Article 88 cases, which bar commissioned officers from using “contemptuous words” against the president, vice president, Congress and others, have been prosecuted since 1965. More to the point, a quick search of Article 134 cases, a catchall provision to enforce good conduct, showed just one finding for disloyal statements over the past 10 years — a not-guilty, as it happens, according to Pentagon spokeswoman Maj. Elizabeth Robbins.
Still, some soldiers have learned from personal experience where their rights to free speech end.
While serving in Iraq, Army Reserve Staff Sgt. Al Lorentz wrote an article for an anti-war Web site entitled “Why we cannot win,” detailing why he thought the war in Iraq was doomed to failure. Soon after, a note from Lorentz appeared on the Web site: “Because of my article, I am under investigation for very serious charges which carry up to a 20-year prison sentence.”
After an investigation, however, no charges were brought, Lorentz said, and he is continuing to write.
The key here, he says, is that “I am writing now (and this only after making doubly sure with the [judge advocate general]) as a civilian,” Lorentz said. “Although I am a reservist, I do not address my correspondence with my rank, nor refer to myself as a soldier, nor speak while on active duty ... or any sort of orders.”
That, according to Robbins, is what all soldiers should do.
“That’s just basic public affairs guidelines,” she said. “You run it by your public affairs officer, who then strongly encourages you to say, ‘The views expressed here are my own.’”
Article 88 has been around since the 1700s, but was updated when the UCMJ was created in 1950 to apply only to officers. Congress figured that since wars at the time were fought mostly by draftees, they shouldn’t lose their constitutional right to free speech.
But subordination of the military before civilian leaders helps prevent the military coups that have plagued some other nations, said Eugene Fidell, president of the National Institute of Military Justice and a retired officer of the Coast Guard Reserve.
Exceptions tend to occur when an official “gets out of line a little bit,” Fidell said, as President Clinton did when he lied under oath during the Monica Lewinsky scandal. In that connection, at least three officers were punished for inappropriate speech about Clinton.
More recently, Air Force Lt. Col. Steve Butler was suspended from his position as vice chancellor of the Defense Languages Institute, in Monterey, Calif., after he accused President Bush in a letter to a local paper of knowing about the Sept. 11, attacks before they happened.
Still, no one has faced court-martial.
“I think it’s more embarrassing when it’s a senior officer, so you’ll see it in the news, and then you don’t ever see it again,” said Kathleen Duignan, executive director of the National Institute for Military Justice. The articles “are leverage that commanders use to spirit them out quickly and avoid embarrassment.”
Moreover, said Grant Lattin, a military lawyer and retired Marine Corps lieutenant colonel, “most people know what the line is, because they have common sense.”
UCMJ on speech
Military speech issues can fall under four articles of the Uniform Code of Military Justice:
Article 88: “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.”
Article 89: “Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.”
Article 91: “Any warrant officer or enlisted member who treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office; shall be punished as a court-martial may direct.”
Article 134: “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.”