Ehren Watada, Free Speech, and the Military

First Lieutenant Ehren Watada is being court martialled for making public remarks disparaging his chain of command. His attorneys say he’s covered by the 1st Amendment.

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.”

Eaton and Batiste are exactly right: There’s a magnitude of difference between the speech of retired officers and serving ones. (Although retired general officers, especially those very recently on active duty, are in a somewhat nebulous world in between those categories.) The Uniform Code of Military Justice applies very different standards to military personnel than could Constitutionally be applied to civilians. Soldiers simply do not enjoy the full protection of the Bill of Rights and the Supreme Court has upheld that time and time again.

Watada is potentially in violation of several Punitive Articles for his speech, in addition to perhaps more serious ones for refusing a lawful order to deploy:

    Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

    Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.

    Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

    934. ART. 134. GENERAL ARTICLE
    Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.


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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. LJD says:

    He can say whatever he wants from Leavenworth.

  2. Richard Gardner says:

    Watada is being charged with:
    Art 87 Missed Movement – “through design miss the movement of Flight Number (redacted), with which he was required in the course of duty to move”
    Art 133 – As stated above – For making Disgraceful and disrespectful statements (3 specifications)

    The full charges are here

  3. just me says:

    Military service members surrender some of their rights, when they join the military. All of them have access to the UCMJ and are aware of what they should and shouldn’t say.

    I also can see where an officer critical of the mission and CIC openly could cause some moral issues-after all would you want to be the enlisted guy serving with an officer who wasn’t committed to the mission?

    Is it a difficult situation to be in? Yes, but difficult situations are not an excuse to violate the UCMJ.