Kimberly Rivera, a conscientious objector and pregnant mother of four was recently sentenced to 10 months in jail because she refused to serve in the Iraq war. Her NLG attorney James Branum said in a Democracy Now! interview: “She talked to a chaplain about it. The chaplain largely pushed her aside, did not give her the counsel that she really needed. And so, when she came home on leave, she took other steps. And it’s unfortunate that she did not get the legal advice and information she needed to seek status as a conscientious objector.”
This case is illustrative of the crucial need for legal counsel for dissenters within the military, a role that the NLG’s Military Law Taskforce (MLTF) has fulfilled since the mid 1970s.
During the Vietnam War, the Guild formed military law offices overseas in Japan and the Philippines. There lawyers provided legal counsel to GIs who had been subjected to discharge, court-martials, and non-judicial punishment. NLG attorneys also represented conscientious objectors facing courts-martial in the U.S.
One example of a case handled by Guild lawyers came out of an incident in 1974 when 60 sailors refused to operate an aircraft carrier, the USS Midway, based in Yokusuka, because of the poor conditions onboard. The sailors also had indications that the ship was carrying nuclear weapons on board, which would have been in violation of the status of forces agreement with Japan. Their refusal was considered a significant offense by the military; bordering on desertion. NLG attorneys defending the sailors asserted that they had an obligation not to sail because the carrier did in fact have nuclear weapons on board and they were obligated not to comply with illegal orders.
The judge closed the courtroom when defense attorneys broached the presence of nuclear weapons. The sailors were found guilty but NLG attorney Bill Schaap appealed and won a reversal of the conviction because no public trial was provided.
In another case handled by NLG attorney Reber Boult, Marines in Iwakuni, Japan handed out a one-page printout that consisted of a half-page reproduction of the Declaration of Independence with the other half bearing the Declaration "translated" into contemporary English. The GIs behind the printing were ultimately forced out of the Marine Corps.
When the war was winding down and Guild attorneys were coming back from Asia, they realized that there was a continuing need for military organizing and representation. According to past NLG president and long time MLTF member David Gespass, they called it a task force because they were not sure that it would be needed permanently.
David Gespass, Kathy Johnson, Nancy Stroll, and Dick Engle at the NLG’s Military Law Ofﬁce in Yokosuka, Japan. 1974. Photo courtesy of David Gespass
MLTF Executive Director Kathleen Gilberd states that, immediately upon formation of the task force, lawyer and legal worker members were deeply involved in a wide range of work. Guild members provided support to conscientious objectors and to GIs who were involved with underground newspapers. These were also the early days of sexual harassment complaints and the MLTF consulted with many female military members about their grievances. The Task Force along with LAMBDA Legal Defense Fund and the ACLU challenged the policy around denying service to queer individuals in a number of cases such as that filed on behalf of Washington state National Guard Colonel Margarethe "Grethe" Cammermeyer, who was the highest ranking officer to challenge the policy.
In the 1980s and 1990s, the MLTF provided expertise on military regulations and administrative procedures used for discharge including the military’s early HTLV3 policy. This policy was developed by the military to kick people out for their sexual orientation based on what they told their doctors. The MLTF represented Brian Kinney in a lawsuit along with the ACLU in San Diego that resulted in a change to the entire policy. The military now maintains confidentiality requirements around HIV, which according to Ms. Gilberd is a significant development considering that there is very little confidentiality in other arenas in the military. Brian Kinney learnt that the policy had changed two weeks before his death in 1986.
Challenges to Representing Dissenters in the Military
According to MLTF members, it is much harder to represent military dissenters than those in the civilian world as there are laws against dissent and organizing. Service members are also limited in petitioning the government, cannot join a union, and cannot engage in any concerted act of disobedience. As such, service members have to be very conscious of what they cannot do or say. Compounding this are trial procedures where odds are stacked against dissenters. Because of the convening authority system, the commanding officer chooses the jury pool and the jurors as well as the investigating officer. In short, the commanding officer is judge, jury, and prosecutor in the military justice system.
The MLTF continues to represent GI resisters and provide military counseling to individuals who are AWOL and are trying to get out of the military. The Task Force also works closely with Iraq Veterans against the War on Operation Recovery, a campaign seeking recognition for the right to heal for veterans and for Iraqis and Afghanis. The MLTF also provides counseling to service members around obtaining medical retirement. The military routinely discharges people based on symptoms of their illness such as anger issues related to post traumatic stress disorder. These soldiers risk other than honorable discharge and loss of military and veterans’ benefits.
MLTF also works in cooperation with the Service Women’s Action Network to stop sexual assault by producing educational materials, helping service members file complaints, and assisting those who face reprisals for speaking out.
“There is deep-seated misogyny and a culture of violence against women in the military which manifests itself in a much more intense fashion than in society as a whole,” says Kathleen Gilberd.
The Crackdown on Military Dissent
Dissent is also growing in the ranks of current and former soldiers over the poor quality of available medical and psychological care.
NLG members Jim Klimaski and David Gespass were involved with representation of Private Mark Hall, who was based in Fort Stewart. He was told he must involuntarily extend his active duty service in December 2009 but refused to go back to Iraq. He wrote a song complaining about what was happening in Iraq and was charged with communicating threats to his commanding officer. He was then sent to Kuwait in preparation for a court-martial. He requested to be discharged instead of facing a court-martial and, with the help of his MLTF attorneys, ultimately succeeded.
According to Mr. Gespass, the crackdown is worse now than during the Vietnam War.
“Back then, towards the end of the war, there was so much resistance that they really could not control it the way they do now,” Mr. Gespass explained. “Service members who stand up now assume much greater risk because fewer people are doing so.”
There has also been a change in regulations. Today, commanding officers can take preventative action against service members who plan lawful protests. According to Ms. Gilberd, the MLTF’s director, this was at least in part a response to the Occupy movement.
The shift in regulations means that GIs planning protests can be hit with bad performance evaluations and in some cases even discharged. These soldiers can also receive "counseling statements," essentially bad marks in their record, for engaging in dissent. In one case, the command threatened to engage in preventative action and the soldier backed off.
It goes without saying that service members need the MLTF now more than ever.
This piece is based on interviews with MLTF Executive Director Kathleen Gilberd as well as MLTF attorneys David Gespass, Jim Klimaski, and Reber Boult.