Anti-war & anti-Gitmo: military expression and the dilemma of licensed professionals in uniform.

• Author: Lebowitz, Michael J.
• Position: Divided Loyalties: Professional Standards and Military Duty

Military justice is unique not only for its separate legal code, but also for its impact on licensed professionals in uniform. Physicians and lawyers are ethically bound by their licensing requirements. But put a military uniform on these professionals, and they are subject to punitive action under the respective codes of their nation's armed forces. For a uniformed professional facing a desire to speak out against war or military policy, regulations governing "military expression" can be a "career killer." This article examines the unique dilemma facing licensed professionals who are caught up in a trifecta of free-speech restrictions, personal beliefs and ethical licensing requirements. Cases originating in the United States, United Kingdom, and Guantanamo Bay highlight the legal and career ramifications affecting those who could not legally balance the military expression trifecta. This article further considers potential remedies to assist uniformed licensed professionals who experience this "crisis of conscience."

1. INTRODUCTION II. UNDERSTANDING THE MILITARY EXPRESSION TRIFECTA A. Military Expression Limitations B. Personal Beliefs C. Professional Ethical Requirements III. MILITARY EXPRESSION AT GUANTANAMO BAY A. GTMO-Specific Factors B. Trifecta Violations C. Going Beyond Military Expression IV. REMEDIES V. CONCLUSION I. INTRODUCTION

   Much has been made of medical professionals and lawyers who assisted in controversial post-9/11 practices such as harsh interrogations and combat operations) As such, this paper instead focuses on those licensed uniformed professionals who personally oppose the actions of their military employers. Some would call these doctors and lawyers "anti-war." (2) And, it is these professionals who--perhaps more than anyone else in uniform--are caught between a trifecta of licensed ethical requirements, rules limiting servicemember military expression, and their own consciences. (3) This paper analyzes the military expression rules surrounding licensed professionals in uniform, and the resulting dilemma such requirements create relating to those who wish to act on their personal beliefs.

   In addition, the military commissions process at Guantanamo Bay, Cuba (GTMO) is noteworthy in this context because it serves as a sort of laboratory for legal professionals as they navigate the military expression rules. (4) In a number of instances, military prosecutors, defense attorneys, and supposedly neutral Judge Advocates have engaged in a messy literal war of words. (5) This scripted "war" relates specifically to attacks and counterattacks emanating from personal beliefs that are typically frowned upon under military regulations. (6) Among the carnage relating to action derived from personal belief, one experienced military attorney was sent to prison at Fort Leavenworth, Kansas, others resigned in protest, careers were stunted or ended, and others were threatened with sanctions. (7) An odd result then seemingly developed where military prosecutors found themselves constrained in their speech well beyond typical rules outside of GTMO, while military defense lawyers continued to get away with speech activity that runs counter to military regulation and practice. (8)

   Part II of this paper analyzes the three elements that make up the unique dilemma and additional pressures facing those licensed professionals in uniform who experience a "crisis of conscience." Part III focuses on the veritable military expression laboratory that has developed among some uniformed attorneys participating in the detainee and military commissions process at Guantanamo Bay, Cuba. Part IV offers some remedies that can be used to assist both the licensed professionals who find themselves personally conflicted and potential whistleblowers.

2. UNDERSTANDING THE MILITARY EXPRESSION TRIFECTA

   Forms of military expression limitations are applicable to most Western armed forces. (9) This is not to say that these servicemembers do not have free speech rights, as they certainly do. (10) American soldiers, sailors, marines, and airmen undoubtedly retain First Amendment rights, for example, as do U.K. troops under Article 10 of the European Convention of Hu man Rights. (11) In fact, the military expression regulations are theoretically written and interpreted equally among servicemembers. (12) Saying that, however, an additional charge of conduct unbecoming an officer and a gentleman applies specifically to commissioned officers as opposed to enlisted servicemembers. (13) This officer-specific rule is in place mostly because of the higher standard and level of leadership responsibility bestowed upon commissioned officers. (14) In addition, it should be noted that licensed professionals in uniform--to include doctors, lawyers, and chaplains--generally serve in such capacities as officers. (15) As such, licensed professionals are essentially treated under the same military expression rules as their fellow officers regardless of duty position. (16)

   In terms of speech, whistleblower rules exist to assist servicemembers in providing a conduit to express their concerns to investigators. (17) For example, the Military Whistleblower Protection Act in the United States is designed to protect servicemembers from retaliation after reporting what the servicemember perceives to be wrongdoing. (18) The report does not have to be per se wrongful, as the servicemember is protected only if he or she is issuing the report out of a good faith, reasonable belief. (19) Like its federal whistleblower counterpart, the military version is very specific on items relating to whom the report can be made, timelines, and investigatory process. (20) Specifically, military whistleblowers can report perceived wrongdoing to any member of Congress, a commander, and investigator general. (21) Importantly, neither the media nor human rights organizations are covered. (22)

   1. Military Expression Limitations

      The rules and regulations pertaining to military expression generally limit the level of personal viewpoints and political activities that can be espoused under the perception of official capacity. (23) These limitations have been carved out for servicemembers specifically due to the "specialized society" of the military that places special emphasis on morale and good order and discipline. (24) It is this niche within the military mission that justifies criminal charges against soldiers who speak or act upon their personal beliefs. (25) In fact, these criminal charges differentiate military expression rules from limitations on certain activities by government employees. (26)

      In the United States, both the Supreme Court and the Court of Appeals for the Armed Forces (CAAF) have consistently upheld such limitations. (27) In Europe, Article 10 (2) of the European Convention of Human Rights provides governments with the ability to regulate freedom of expression for items such as national security, protection of health or morals, and prevention of disorder or crime. (28) With respect to licensed professionals in uniform, the underlying punitive laws do not distinguish between servicemembers who do and do not require licenses to fulfill their missions. (29)

   2. Personal Beliefs

      All officers certainly are not mindless robots, which means that they do weigh issues of politics and military within their own minds on a daily basis. (30) Servicemembers, for example, can use their personal judgment to refuse to commit what they deem to be an unlawful order. (31) This personal conscience element, however, certainly does not absolve servicemembers from repercussions as most "soldiers of conscience" have been punished for "failure to obey a lawful order." (32)

      Typical examples pertain to servicemembers who refuse to deploy to combat zones. These individuals often base their publicly stated beliefs on the notion that participating in what they claim to be an unlawful war effectively renders such participation unlawful. (33) Licensed professionals on occasion have joined numerous other officers and enlisted soldiers in making this argument. (34)

      A good example is the case of Flight Lieutenant Malcolm Kendall-Smith, a medical doctor in the U.K. Royal Air Force. (35) In 2005, Kendall-Smith refused to serve in his medical capacity in Basra, Iraq. (36) His rationale was that to deploy would be tantamount to an "act of aggression" in a military operation that he already publicly denounced as akin to a Nazi war crime. (37) Kendall-Smith ultimately was court-martialed and jailed on charges relating to his refusal to deploy, as well as periphery charges of failure to obey a lawful order. (38) During the trial, the doctor passionately articulated his personal dilemma between the trifecta of his military duty, personal beliefs and medical profession. "I would wish to restate that I have two great loves in life, medicine and the Royal Air Force," Kendall-Smith said. "To take the decision that I did caused me great sadness, but I feel I had no other choice." (39)

      In this case, Kendall-Smith was treated like most other war resisters who made their cases public. (40) The court's presiding officer informed the doctor that the court-martial panel did in fact believe he was acting on moral grounds. (41) The officer then added that Kendall-Smith displayed an "amazing arrogance" in how he proceeded to act upon his personal beliefs. (42) "Obedience of orders is at the heart of any disciplined force," the court stated. (43) "Refusal to obey orders means that the force is not a disciplined force but a disorganized rabble. Those who wear the Queen's uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences." (44)

      In the United States, Terrence Lakin represents another medical doctor who publicly refused to deploy on the basis that his personal beliefs trumped duty to follow orders. (45) Faced with a deployment to Afghanistan to...