Permitted Activities of Active Duty Service Members Who Attend Winter Soldier Panels

On February 19, the DOD updated directive 1344.10 pertaining to Political Activities by Members of the Armed Forces. The new directive implicitly permits active duty service members to engage in public speech at nonpartisan political activities. Therefore, active duty service members who attend the "Winter Soldier" panels may:

  • Atttend while off duty (as long as their commanding officer doesn't deem it "off limits"),
  • Attend while not wearing their uniforms,
  • Participate as spectators,
  • Make monetary donations,
  • Express their personal opinions as a public speech* in their personal capacity and not as a representative of the Armed Forces), as long as:as long as:
    • they do not use contemptuous language (i.e., "fascist," "thief," "murderer," "tyrant," "fool," and "gangster") against high officials (i.e., President, Vice President, Secretary of Defense).
    • The new DOD directives do not specifically state that active duty service members may make public speeches at nonpartisan political activities and events. However, it may be implied since the DOD thought to add in paragraph 4.1.2.5 that active duty armed service members may not make speeches at partisan political activities and events.

NOTE: Active duty service members should also be aware that a person who admits to participation in war crimes may subject him or herself to prosecution in civilian federal district court or to prosecution efore an international tribunal, as well as prosecution in Military Court. [1]     

Discussion

The right of active duty service members to participate in political activities is governed primarily by Department of Defense Directive 1344.10, Political Activities by Members of the Armed Forced on Active Duty.  The directive permits service members on active duty to: register, vote, and express his or her personal opinion on political candidates and issues, but not as a representative of the Armed Forces; make monetary contributions to a political organization; and attend partisan and nonpartisan political meetings, rallies, or conventions as a spectator when not in uniform.[2] 

Note that expressions of personal opinions include signing a petition for specific legislative action so long as the signing does not obligate the service member to engage in partisan political activity.[3]  However, personal expressions do not include the use of "contemptuous words."[4] You can't call the President, Vice President, Secretary of Defense, or a few other high government officials what article 88 of the UCMJ calls "contemptuous words." Service members have gotten into trouble for using "fascist," "thief," murderer," "tyrant," "fool," and "gangster" in relation to such people.[5]

Active service members should also be aware of directive 1350.6, which allows commanders to place certain establishments "off limits."  The commander may do so if:

  • the commander beliefs that the activities taking place there include counseling members to refuse to perform duty or to desert; pose a significant adverse effect on Service members' health, morale, or welfare; or otherwise present a clear danger to the loyalty, discipline, or morale of a member or military unit.[6]  Therefore, any service member who wishes to attend the Winter Soldier panels should make sure that their commanding officer has not barred his unit from doing so.

Another issue for active duty service members to be aware of if they participate in the Winter Soldier discussion is DOD Directive 1344.10 also instructs active duty service members participating in permissible political activities to �Savoid any outside activities that may be prejudicial to the performance of military duties or are likely to bring discredit upon the Armed Forces.[7] This is a catch all category whose language is borrowed from Article 134 of the UCMJ and could theoretically be applied to certain protests.  Considering that the subject matter to be discussed may include allegations of war crimes committed by the U.S. Armed forces, it is possible, though unlikely, that any active service member attending the "Winter Soldier" panels as a spectator could be charged with violating Directive 1344.10.

[1] For more information on the legal liability of making public statements, see Memo from Louis Front to Todd Ensign Re: Legal Exposure of Veterans Who Testify at Public Forums to Expose War Crimes Activity in Iraq and Afghanistan, available at http://www.ivaw.org/publicdocuments/CS_Memo_11_5_07.pdf.

[2] DOD Directive 1344.10, para.4.1.

[3] Id at para.E 3.2.5.

[4] Id at para E 3.3.11.

[5] Military Law Task Force, National Lawyers Guild, available at http://www.nlgmltf.org/leaflets/GI_Rights_legal_demonstration.html.

[6] DOD Directive 1350.6, para 3.5.2.

[7] DOD Directive 1344.10, para E 3.6.2.