You are an active duty GI and you want to know if you can participate in anti-war demonstrations.
You figure that you have Constitutional rights to protest, to speak freely, to go to demonstrations when not representing yourself as a soldier in uniform, and to pass out and take leaflets.
You believe that being an American citizen is above being a soldier, and this entitles you to the rights of free expression, free speech, freedom to assembly, freedom to your own moral convictions.
You have read:
DOD 1300.17 restrictions on practicing religious beliefs
DODs 1334.10 & 1325.6. stating your views; taking part in peaceful protests or in off base gatherings while off-duty & out of uniform; possessing one copy of literature or leaflet
Article 138 of the UCMJ requesting redress from a commanding officer
Article 31 of the UCMJ refusing to make a statement about a crime Article 124 prohibiting disloyal statements Articles 89 & 91 of the UCMJ restricting freedom of speech
These DODs and articles spell out what you can and can’t do. But you still don’t know if it’s okay to march in that demonstration this next week. You have made a decision not to wear the uniform, but you are debating about whether to carry a sign that says “stop the war now!” And you’re not sure what your rights are if the demonstration turns violent and you get caught and swept up in it. And, can you pass out leaflets? Can you announce to people that you are active-duty and oppose what the military is doing?
Unfortunately, you realize that you are back where you started. You have no idea what you can and can’t do. Besides, your commanding officer ain’t yo’ mama, and he’d love to hang you up on anything.
What do you have to think about and understand before you participate in the upcoming demonstration? What are the realities you face? Can you rationalize your right to march with your friends and family members? In 1987, the U.S. Supreme court, under the leadership of arch conservative William Rehnquist, issued a decision in Solorio v. U.S., which overturned decades of Supreme Court precedent concerning military jurisdiction over GIs who engage in “off-base” criminal conduct.
Prior to Solorio, military courts did not have jurisdiction over military personnel who committed offenses in the civilian community unless it could show some sort of “service-connected nexus that made such jurisdiction appropriate. But in Solorio, the Court held that the military has concurrent jurisdiction over military personnel, even if the offense were committed off-base, out of uniform and were totaley unrelated to the military objective.
While military courts were not obligated to assume jurisdiction in such cases, they were free to do so if they wanted to.
The implication of Solorio are enormous for GIs currently serving in one of the United States’ imperial struggles in Iraq, Afghanistan, Colombia, the Philippines, or elsewhere in the world.
So, what are the rights of GIs in participating in off-base anti-war activities under the current political regime?
It does not look good. Looking into the state of the law, it is clear that this is a dangerous and unpredictable minefield. Because Solorio gives the military jurisdiction over GIs on or off base, the question is whether military personnel can face prosecution for protest actions taken off base? While the apparent and obvious answer to this is “of course people can engage in lawful and peaceful protest.” (After all, what are Americans allegedly fighting for in the first place?), the reality is that such actions could certainly result in prosecution under the UCMJ.
Military Courts, backed by the U.S. Supreme Court, have consistently held that rights under the First Amendment and Freedom of Association can be lawfully restricted when applied to military personnel. Participating in an off-duty civilian demonstration, while wearing a uniform, is regularly prohibited by the military. Engaging in activities or conduct that affects “morale” or the “military mission” can be lawfully prohibited. Engaging in conduct “unbecoming an officer” or that “undermines the effectiveness of response to command” are illegal. Similarly, the military can lawfully regulate GIs access to areas under its authority, to leafleting and activities deemed contrary to “military necessity” or to “good order and discipline.”
The military prohibits actions involving:
- conduct bringing discredit upon the armed forces
- violation of general orders
- conduct which undermines good order and or morale
It is difficult to imagine how a creative prosecutor couldn’t attempt to convict a GI of any public display of contempt, anger, or disagreement with whatever George Bush, as commander-in-chief, demands. Article 134, the “devil’s article,” could be applied to almost any legitimate protest activity that a GI could engage in whether on or off -base.
So what does a lawyer say to you about such a contradiction? You are headed out of the door, banner in hand, ready to protest the war, demanding your rights as an American citizen.
Does a lawyer or counselor say to you that the First Amendment’s promise to the American people that we can speak, assemble, protest lawfully and petition for change are hollow shells? Absolutely Not! But to suggest that those rights under the current regime will not result in repression or retaliation, charges brought against you under military jurisdiction, and arrest, is simply disingenuous. The best that can be said is that if GIs or civilians fail to insist upon and exercise these rights, then we all run the risk of losing them forever. While no court has explicitly said that peaceful and lawful opposition to imperial wars will hereafter be dealt with as criminal offenses, such is clearly the goal and strategy of the Bush/Rumsfeld/Ashcroft axis.
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.
MLTF flyer on rights of servicemembers to participate in Occupy Wall Street protests