Not-So-Free Speech
It is commonly assumed that the First Amendment right to engage in political speech is abridged by military service. Loyalty and duty have often been viewed as inconsistent with criticism of the military or its civilian commanders.
First Lt. Ehren Watada refused to deploy to Iraq, but he's also facing charges for "making four public statements criticizing President Bush and the Iraq war."
Watada, a 28-year-old Honolulu native who enlisted after the Sept. 11 attacks, said he gradually came to the conclusion that the Bush administration had lied about the basis for war and had betrayed the trust of the American people, making Watada ashamed to wear the uniform. In media interviews and in a speech at a peace convention, Watada also said that the Iraq war was "not only morally wrong but a horrible breach of American law," and that soldiers could stop it by refusing to fight.
At this point, Watada's opinions are widely shared. With good reason, many will view Watada's complaints as prescient, not disloyal. The military argues that it has the power to punish Watada for unbecoming conduct, but punishing a soldier for speaking the truth won't sit well with public opinion. The climate is ripe for a decision that respects Watada's right to be a vocal participant in American democracy.
Watada's attorney, Eric Seitz, argued last week that even military personnel could voice dissent, particularly on issues of such public importance as war. In motions to dismiss the charges of unbecoming conduct, Seitz argued that Watada's dissent was respectfully delivered and did not rise to the moral failings the military code was meant to punish, which include "dishonesty, unfair dealings, indecency, indecorum, lawlessness, injustice and cruelty.""Whether or not one agrees with Lt. Watada's conclusions, it was no sign of personal degradation or moral unfitness for him to speak his conscience on gravely important issues of war and peace," Seitz argued.
Seitz also argued that Watada was being selectively prosecuted; he noted that several high-ranking retired military officials had criticized the war effort and not been charged with any offenses. Retired officers who draw a military pension are still subject to military law.
But two of those cited in Seitz's motion, Army Maj. Gens. John Batiste and Paul D. Eaton, said in interviews that they drew sharp distinctions between Watada's conduct as a still-active-duty officer and their own remarks after they left the service.
"It is totally inappropriate if not unauthorized for an active-duty officer to publicly criticize the chain of command," said Eaton, a 33-year military veteran who led the Iraqi security forces training program before stepping down last January. He subsequently called then-Defense Secretary Donald H. Rumsfeld "incompetent" and urged Rumsfeld to resign in an op-ed article.
The unbecoming-conduct charges carry a maximum sentence of four years.
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