Permitted Activities of Active Duty Service Members Who Attend War Panels

On February 19, 2008 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 "Winter Soldier" or protest panels and events 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:
• • 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.

Discussion

On February 19, the DOD updated directive 1344.10 pertaining to Political Activities by Members of the Armed Forces and clarified participation in non-partisan political activities. Paragraph E.2.4 defines a non-partisan political activity as "Activity supporting or relating to candidates not representing, or issues not specifically identified with, national or State political parties and associated or ancillary organizations or clubs." It further states that active duty service members may attend nonpartisan political fundraising activities, meetings, rallies, debates, conventions, or activities as a spectator when not in uniform and when no infernce or appearance of official sponsorship, approval, or endorsement can reasonably be drawn." Iraq Veteran's Against the War is a nonpartisan organization, and therefore, the Winter Soldier panels would qualify as a nonpartisan political activity.

The new directive implies that active duty service members may engage in speeches while attending non-partisan political activities. While it does not specifically state that active duty service members may make public speeches at nonpartisan political events, it does not say that active duty service members are prohibited from doing so. In contrast, paragraph 4.1.2.5 specifically states that active duty service members may not speak before a partisan political gathering. Hence, it is implied that active duty service members may make speeches as long as they adhere to the regulations regarding such speech (i.e. make it clear that the statement is made in their personal capacity and not as a representative of the armed forces, they do not use contemptuous words). It once again should be noted 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 before an international tribunal, as well as prosecution in Military Court.[1]

[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/