| GI RIGHTS |
Members of the military have rights under the U.S. Constitution and under the military's own regulations. The military doesn't like this very much-so they don't tell you much about your rights and often limit your rights. If you want to attend a peace or other demonstration, or want to speak out, then you want to know about your rights.
Here is some basic information about your rights regarding demonstrations, protests, dissent, and plain old saying what's on your mind. Once you've read this, it would help to read the regulations (counseling services have them and there are various routes to them on the Internet). You can get more information by talking to a lawyer or counselor experienced in military law--he or she can help interpret the law and regulations and give you legal backup. The regs give you important ways to protest what's going on in Iraq, Afghanistan, the Philippines, and elsewhere.
But the regulations also impose important limitations you need to know about; we'll talk about those. These limitations say people in the military don't have as much constitutional right to express themselves as civilians do. Courts have upheld a good many of the limitations; some of them haven't been to court yet, when they do they might be held unconstitutional (we think they should be).
This right is explained in Department of Defense (DoD) Directive 1325.6, "Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces." It tells commanders to preserve service members' "right of expression . . . to the maximum extent possible, consistent with good order and discipline and the national security."
Of course it puts limits on the right. The demonstration must be off base and in the U.S. You must be off duty and not in uniform. Also your activities must not "constitute a breach of law and order," and you can't do it "when violence is likely to result."
That last part is pretty vague, so vague that we think you'd have a constitutional defense unless you were really rowdy or knew things were going to get violent. Prosecutions under these vague regulations have so far been uncommon but it would be a huge hassle or worse if you did have to fight disciplinary action or prosecution and maybe lose and get fined or confined. They seem to think having vague rules intimidates you. We think they know they're on shaky constitutional ground if they try to use them against peaceful protest activity.
Be careful about organizing groups of GI's to do things about the conditions of service. There's a statute, 10 U.S.C 976, to prevent labor unions in the military (they want you to work together in combat but not to make things better for yourselves). This law hasn't been used much so it's hard to tell how far they might try to stretch it. Talk to a lawyer or counselor if you think you might be getting close to it.
DoD Directive 1325.6 affirms these rights and there's how-to-do-it in DoD Directive 7050.6.
But there are some limits here, too. You can't say things that encourage violence or urge others to violate the regulations, you can't communicate with "the enemy" by writing letters to Iraqi officials or soldiers, and you can't call the President, Dick Cheney, Donald Rumsfeld, or a few other high government officials what article 88 of the UCMJ calls "contemptuous words." Service people have gotten into trouble for using "fascist," "thief," murderer," "tyrant," "fool," and "gangster" in relation to such people (but officers didn't get in trouble for saying things like that about President Clinton). Article 88 says it only applies to an officer but if they really want to go after an enlisted person for saying these things they'd probably try to use the catchall, art. 134's "to the prejudice of good order and discipline in the armed forces, or conduct of a nature to bring discredit upon the armed forces."
Art. 117 of the UCMJ outlaws saying ugly things about people, but that's so broad it's probably unconstitutional unless used against really super awful statements. You're in more substantial danger if you say things that could make GI's desert, disobey lawful orders, or refuse to do their jobs.
You can, subject to all of these limitations, write, publish, and distribute things like newspapers, leaflets, and web pages. You can write letters to the editor as long as they're not part of an organized letter campaign for a political candidate or party (the Army deals with electoral political activity in its Regulation 600-20 Appendix B). It all has to be while you're off duty and without using military paper, ink, computers, phones, or other supplies or equipment.
You can put a bumper sticker on your car. Yard signs off base are governed by the same rules as other writings (unless it's displayed by a civilian resident and so gets the benefit of civilian free speech rules); in base housing they're iffy, subject to local orders, and probably with more leeway for those on issues ("No War") than for politicians (Vote for Bush").
And, of course, you can't say or imply that you are speaking on behalf of the military. Civilian spouses and children are just that-civilians. Off base, they aren't governed by the military's limitations. For on base activity, the command can issue orders that take away their right of expression almost the same as service members.
DoD Dir. 1325.6 allows it and then specifies the limitations. One of them is you are not allowed to distribute such literature on base. If the command finds that you have more than one copy of anything, they may claim that you intend to distribute it.
And you should remember other general rules about communicating, mostly the same as described in the part about what you can say. You don't want to have literature that calls for the violent overthrow of anything, assassination of anybody, or blowing up anything but the military's targets. You don't want to have material that violates sexual harassment regulations, and you don't want to have racist literature. Civilians have the right to have all of these things.
It's a right you should exercise. And it's also perfectly legal to talk with and get help from a military counselor--a non-attorney who can give information about discharges, administrative complaints, and many of your rights.
With the rights talked about here, we've also mentioned the main limitations on the rights--limitations the military uses to make it more difficult for folks to speak out about their opinions and to protest unjust policies and unjust wars. Unfortunately, as you know, the military can restrict things you do off base as well as on, and can punish you for violating the UCMJ (which, in effect, requires you to obey most civilian laws) even out in town. It's important to know how far the regulations protect you, and not assume the protection is perfect.
Another limitation is that courts have allowed the military to require its members to submit some things for approval before mailing or publishing them. For example look at the Supreme Court's decision in Brown v. Glines, 444 U.S. 348 (1980). In civilian life this would absolutely violate the first amendment of the Constitution; it's called "prior restraint."
The U.S. Supreme Court, in cases where GI's were seeking rights similar to those of civilians, has said, "the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that it is the primary business of armies and navies to fight or ready to fight wars should the occasion arise. . . . An army is not a deliberative body. It is the executive arm. Its law is that of obedience." (We think armies and navies would most effectively fight for democracy if the soldiers and sailors had democratic rights themselves but the courts don't agree and, in any event, many believe it's been a long time since the U.S. military has done much fighting for democracy.)
The Court was writing in the context of the battlefield and preparing for it, but military commanders, given this inch, try to take it a mile. When they do so they can come up against the fact that both the Supreme Court and the Court of Military Appeals have said the law of blind obedience "does not reach all disagreement with, or objection to, a policy of the Government." According to the courts, that allows GI's a good bit of free speech off duty, off base, and out of uniform.
The main regulation carries this forward by saying "The Service members' right of expression should be preserved to the maximum extent possible, consistent with good order and discipline and the national security." But then it leaves figuring that out to "the calm and prudent judgment of the responsible commander."
Yeah, sure.
You don't have to be in the military long to find out that commands sometimes ignore the rules and retaliate against whistleblowers and troublemakers and protesters. Sometimes innocent and completely legal actions can lead to retaliation--poor performance evaluations, bad recommendations, and bogus disciplinary charges. Sometimes folks are labeled as troublemakers and face informal harassment from co-workers and superiors (but sometimes this backfires-it produces admiration from co-workers).
There are several ways to challenge this sort of thing. Getting some legal assistance is the first step-you can talk with a military counselor and/or an attorney who's familiar with military law. They can give you information about ways to challenge illegal retaliation--sometimes through Article 138 complaints, which commands really hate, sometimes through the Military Whistleblower Protection Act and sometimes through other legal channels. And an attorney or counselor can help you put together a complaint or can communicate with your command about the problem. In fighting back against harassment like this, it helps to be able to show that you don't deserve the bad marks and, if possible, to show that your protest activities were the real reason the command developed an attitude and took action against you.
Since the war in Iraq started, lots of soldiers have talked to the media, both in Iraq and in the states, saying they want to come home and the war is wrong. Some have talked and written to members of Congress to oppose the war. Many have marched in demonstrations. So far, the military hasn't done much to stop this, because the dissent is strong and because many Americans support soldiers who want to come home now. But some commands have threatened soldiers and sailors, even for actions like these that are completely legal. And experience teaches us that retaliation and false charges can be serious. The best way to protect yourself is to be prepared in advance-before you use your rights, read the regulations for yourself. Talk with an attorney or counselor and try to arrange in advance for legal backup in case your command develops an attitude.
It's also important to think about whether you are vulnerable-whether there is anything in your record or any action pending against you that might be a problem if your command wants to cause you trouble. Here, too, an attorney or counselor can help you to be sure you have as much protection as possible against harassment or retaliation.
And remember, if officials ask you questions about subjects that could get you in trouble, even if you believe you were in the right, you don't have to answer. But you can't lie. Saying "I don't know" when you do know is a lie.
If we don't speak out, we deny our rights all by ourselves. If we don't use the regulations that let us protest a bad war, the regulations just sit there. But if we don't protect ourselves while we protest, then the protections in the regulations end up being useless. Some advance preparation is the best way to use these rights; knowledge is power. And using your rights is important for you, for others caught in a bad war, for democracy, and for all of us.
DoD Directive 1325.6. Guidelines for Handling Dissident and Protest Activities Among Members of the Armed Forces. Also has a provision that tries to prevent racial, gender, religious, or ethnic hatred. The individual branches have their own regulations which implement this Directive. AF Instruction 51-903, AR 600-20 Appendix B (having to do with partisan politics); MCO 5370.4B, and OPNAVINST 1620.1B. These regulations also deal with racial, gender, religious, or ethnic hatred. There are also often local directives.
DoD Dir. 1334.1. Wearing of the Uniform. Prohibits wearing uniform at certain events, including demonstrations.
DoD Directive 1354.1. DoD Policy on Organizations the Seek to Represent or Organize Members of the Armed Forces in Negotiating or Collective Bargaining. Prohibits members of the military from joining a union, attempting to enroll other members in a union, or striking.
DoD Directive 7050.6. Military Wistleblower Protection.
10 U.S.C. § 976. Makes it illegal for members of the military to unionize.
10 U.S.C. § 774. Establishes limited right to wear conservative items of religious apparel while in uniform (For details on implementation, see DoD Directive 1300.l7).
10 U.S.C. § 1034. The Military Wistleblower Act - Protects right to complain to Congress and the Inspector General, and protects members from retaliation for filing complaints.
UCMJ Art. 138. Establishes the right to complain to a higher officer when wronged by your commanding officer.
The GI Rights Hotline: girights@objector.org, 800-394-9544; from overseas: 215-563-4620
Central Committee for Conscientious Objectors 630 20th Street #302, Oakland, CA 94612; 1515 Cherry St., Philadelphia, PA 19102. girights@objector.org
American Friends Service Committee - New England Region 2161 Massachusetts Ave., Cambridge, MA 02140, 617-661-6130, afscnero@afsc.org
Center on Conscience & War 1830 Connecticut Ave. NW, Washington, DC 20009, 202-483-2220 or 800-379-2679, nisbco@nisbco.org
NLG Military Law Task Force 318 Ortega Street, San Francisco, CA 94122, Kathleen Gilberd -- co-chair, KathleenGilberd@aol.com, 619-233-1701 or Marti Hiken -- co-chair, mlhiken@pacbell.net, 415-566-3732 www.nlg.org/mltf
Northcoast WRL / Humboldt Committee for Conscientious Objectors (NCWRL-HCCO): 1040 H Street, Arcata, CA 95521, 707-826-0165, HCCO-Help@sbcglobal.net
Quaker House of Fayetteville, NC 223 Hillside Ave, Fayetteville, NC 28301, 910-323-3912 or 919-663-7122
Seattle Draft and Military Counseling PO Box 20604, Seattle, WA 98102, 206-789-2751, sdmcc@scn.org
War Resisters League 339 Lafayette Street, New York, NY 10012, 212-228-0450, wrl@warresisters.org
www.dtic.mil/whs/directives/ (official site for DoD Directives) http://www.objector.org/helpingout/military-sites.html (lists official regulation websites for all branches (contains link to CCCO website, which has other useful links)