Permitted "griping" reached its apogee in World War II when enlisted cartoonist Bill Maudlin said, "The few cartoons I had done about a general had a definitely insubordinate air about them." While there were regulations requiring a censor's permission before classified information could be discussed, the military made no institutional effort to restrain expressions of opinion or comment on unclassified matters until the inception of the Cold War.
During the Vietnam era there were three noteworthy U.S. trials involving service members' expressions of opinion. All involved officers, which suggests that officers are considered to have obligations that restrict their public speech in circumstances that would not restrain an enlisted person.
In the first of these cases, U.S. v. Howe (1967), Lt. Howe was convicted of two offenses involving the use of a sign he carried in an anti-war demonstration, which violated Article 88 (contemptuous words directed against the president; a similar charge against Watada was dropped before trial) and Article 133. His commanding general reduced the punishment to dismissal (the equivalent for officers of a dishonorable discharge) and confinement to hard labor for a year.
In 1971, Capt. Thomas Culver, an Air Force lawyer, was convicted and sentenced to dismissal and a fine for participating in an anti-war demonstration in London. Because he had served honorably in Vietnam, Culver was not sentenced to imprisonment.
Earlier, in 1968, Capt. Howard Levy, a physician required to serve because of his participation in an Army scholarship program, was convicted of conduct unbecoming an officer for telling the special forces enlisted men he was expected to train that they were liars and thieves and killers of peasants and murderers of women and children.
He expressed the hope that "when you get to Vietnam, something happens to you and you are injured." These opinions -- routinely expressed by civilian opponents of the war -- led to Levy's conviction of dismissal, and a three-year sentence to confinement.
Levy challenged his conviction, claiming that Articles 133 and 134 (conduct prejudicial to good order and discipline, of which he was also convicted) were unconstitutionally vague.
In Parker v. Levy (1974), six members of the Supreme Court concluded that "While members of the military are not excluded from the protection guaranteed by [the Constitution's free speech provisions in] the First Amendment, the different character of the military community and of the military mission requires a different application of those protections.
"The fundamental necessity for the imposition of discipline may render permissible within the military that which would be constitutionally impermissible outside it." Three justices disagreed, concluding that they could not "believe that such meaningless statutes as these could be used to send men to prison under a Constitution that guarantees due process of law."
This is the context in which the Watada case is being tried. He's an officer who criticized his military and civilian superiors' policies in a public forum. Precedent suggests he will be convicted and dismissed. His military record, his lawyer's skill, the jury's mood and his commanding general will determine whether he will be imprisoned as well.
Precedent also suggests that post-trial challenges, claiming that he was treated unfairly, will also fail. Yes, the soldier is also a citizen, but he must take extraordinary care about the circumstances surrounding his expression of dissent.
Michael Noone is also a retired U.S. Air Force judge advocate. He has served as distinguished visiting professor at the U.S. Military Academy.