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Dissent case will test limits of officers' speech

January 07, 2007|Teresa Watanabe | Times Staff Writer

Do military officers have the right to publicly voice dissent about their commander in chief and U.S. war policy?

That question highlighted last week's pretrial hearing at Ft. Lewis Army base near Seattle for 1st Lt. Ehren Watada, the nation's first commissioned officer to refuse deployment to Iraq. Watada faces a court-martial and six years in prison for failing to deploy with his Stryker Brigade last year and for making four public statements criticizing President Bush and the Iraq war.

"This is an important case that will test the limits of dissent within the Army officer corps," said Eugene R. Fidell, president of the National Institute of Military Justice in Washington, D.C.

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.

Civilians would unquestionably be free to make such remarks under the 1st Amendment, but Army officials argue that soldiers voluntarily surrender some of that freedom when they choose to join the military. Watada's statements constitute the criminal offense of "conduct unbecoming an officer," Army officials argue.

"While service members do have freedom to speak, what you say must be in keeping with good order and discipline in the military and with national security," said Ft. Lewis spokesman Joseph Piek.

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.

Americans should not let sentiment against the unpopular Iraq war lead them to endorse behavior that undermines the military system and threatens national interests, Eaton said.

"The American people have to have absolute faith that when the call to duty goes out, soldiers do precisely what their commander in chief asks them to do," Eaton said.

"What the American people can't have is an Army of people who on any given day can wake up and say, 'That's not what I want to do.' "

Batiste, who commanded the 1st Infantry Division in Iraq until March 2005, also said he had been careful not to criticize the war effort until he made what he called a "gut-wrenching decision" to resign from the military after 31 years. Batiste subsequently called for Rumsfeld's resignation and blasted U.S. policy for failing to commit enough resources to win the war, for watering down Geneva Convention prisoner protections and for promoting democracy over security.

"You don't [criticize] in public -- not while you're wearing the uniform," Batiste said. "It's contrary to the culture and norms of the military."

Others have hailed Watada as a courageous soldier of conscience, including retired U.S. Army Col. Ann Wright and international law expert Francis Boyle.

Fidell of the military justice institute said officials chose not to prosecute soldiers who put "Impeach Nixon" bumper stickers on their cars in the 1970s. In contrast, he said, officials successfully pursued unbecoming-conduct charges against a military doctor who urged soldiers not to fight during the Vietnam War; the conviction was upheld by the Supreme Court.

Lt. Col. John Head, the military judge in Watada's case, is expected to issue a written decision this week on whether to dismiss the unbecoming-conduct charges before Watada's February court-martial trial. Those charges carry a maximum four-year sentence.

Head will also rule on whether to grant Watada's request for a hearing on the legality of the Iraq war. The lieutenant is arguing that the Bush administration failed to obtain proper authorization for the war and that the Nuremberg principles adopted after World War II require soldiers to refuse illegal orders. But Seitz said the judge indicated last week that he would probably not permit the hearing.

teresa.watanabe@latimes.com

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