"The soldier is also a citizen." This statement, attributed to both George Washington and Napoleon, is one of the fundamental precepts of a democratic society. Citizens in democratic societies are encouraged to express their opinions about the wisdom of their government's actions and policies.
Does membership in the armed forces somehow limit freedom of expression? And, if it does, how are those limits to be set?
The court-martial of Lt. Ehren Watada for "conduct unbecoming an officer and gentleman" in violation of Article 133 of the Uniform Code of Military Justice, exemplifies the issue. Watada's "unbecoming conduct" was publicly criticizing the U.S. military involvement in Iraq.
All democratic societies start from the premise that the military, as an institution, should be politically neutral, subordinate to civilian authorities, and that military superiors should not proselytize their subordinates. However, national treatment of individual soldiers' expression of political opinion (and, thus, the opportunity to dissent) varies.
"France, Poland and Spain treat the armed forces as 'La Grand Muette' in the French tradition, putting extensive restrictions on soldiers. Belgium, Italy and the United Kingdom take a more lenient, yet still restrictive, approach, while Denmark, Germany, Luxembourg and the Netherlands not only tolerate but also support political activities to a certain extent," reports Georg Nolte in the book "European Military Law Systems."
The U.S. Uniform Code of Military Justice is based on the 1776 American Articles of War, which were drawn almost verbatim from the British Code, so we can expect to see in both a "more lenient but still restrictive approach" to military expressions of political opinion.
The American Articles, like their British model, restrained speech in ways quite unthinkable in the civilian community. Profanity was prohibited in the articles as "traitorous or disrespectful words against the United States in Congress assembled, or the legislature of any of the United States in which [the soldier or officer] be quartered," as well as "reproachful or provoking speech or gestures."
Subsequent versions of the Articles retained these offenses.
In practice, they were rarely enforced. Col. William Winthrop, who prepared his Military Law and Precedents in 1886, was unable to find any instances of punishment for political speech until the Civil War. In that war, although there were instances of courts-martial for disrespect toward military superiors, journalists routinely quoted unnamed subordinates' allegations of their superiors' incompetence.
Long after the war, air power advocate Gen. William "Billy" Mitchell was court-martialed in 1925 for the opinions he expressed in a press release in which he accused the war and naval departments of "incompetency, criminal negligence and almost treasonable administration of the national defense." The language was considered "conduct of a nature to bring discredit upon the military service." Mitchell was convicted and sentenced to five years' suspension from duty without pay or allowances, which the president reduced to half pay. Mitchell resigned, but internal dissent continued unabated.