Academic journal article Case Western Reserve Journal of International Law

Anti-War & Anti-Gitmo: Military Expression and the Dilemma of Licensed Professionals in Uniform

Academic journal article Case Western Reserve Journal of International Law

Anti-War & Anti-Gitmo: Military Expression and the Dilemma of Licensed Professionals in Uniform

Article excerpt

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."

I.   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.

II. UNDERSTANDING THE MILITARY EXPRESSION TRIFECTA

Forms of military expression limitations are applicable to most Western armed forces. …

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