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This is TALK OF THE NATION. I'm Robert Smith in Washington. Neil Conan is away.
Two days ago, Defense Secretary Robert Gates announced that the commander of American forces in the Middle East, Admiral William Fallon, will retire early. Officials have suggested that his public disagreement with elements of the president's foreign policy led to his resignation. There's a profile of Admiral Fallon in the most recent issue of esquire magazine.
The article quotes from an interview he did with Al Jazeera. The constant drumbeat of conflict about a potential war with Iran, he said, is not helpful and not useful. Going on with the quote, I expect that there will be no war, he added, and that is what we ought to be working for.
This wasn't the first time Fallon has been willing to speak his mind. His called for more troop drawdown in Iraq, and said the military is neglecting it's mission in Afghanistan.
The retirement of Admiral William Fallon has raised many questions about dissent in the military. Is it acceptable for a man or woman in uniform to criticize a mission - privately, publicly, in uniform or out? We want to hear from our listeners who serve or who have served in the military. Did you ever speak out? And if you didn't, what held you back?
Tell us your story. Our number here in Washington is 800-989-8255. Our e-mail address is email@example.com And you can also comment on our blog, it's at npr.org/blogofthenation.
Later this hour, "Ask Amy" columnist Amy Dickinson will be here to talk about spousal duty in the face of betrayal. When should you stand by your man or woman, and when should you walk away?
But first, dissent in the military. Joining us now is retired General Robert Scales. He served in the Army for more than 30 years. And he's joining us now by phone from Norfolk, Virginia.
General Scales, good to have you with us.
General ROBERT SCALES (Retired, U.S. Army): Hi, Robert. Good to be here.
SMITH: So do you think that Admiral Fallon's comments about the war in Iraq and Afghanistan and about the prospects of a war with Iran went directly against the Bush administration?
Gen. SCALES: Oh, I think they weren't terribly congruent to what the administration was saying. But I think the issue here is not what he said so much as how he said it and the atmospherics that sort of surrounded the way he said it and - oh, by the way, also who the audience was and who he spoke it to.
SMITH: Well, what do you mean by that? The atmospherics and the controversies surrounding this?
Gen. SCALES: Well, I mean, there is a long tradition in the American military that if you're a commander, there - you have a very, very broad opportunity to dissent inside the institution when decisions are being made. And that if once the decisions are made, then your obligation is to support the decision or support the policy or the operation or whatever it happens to be. And your other course of action is to retire or resign and carry on your dialogue outside of uniform. And over the - and this is uniquely American. This is the way the American - a way civil military relations has work since the Civil War, and we've had several very famous generals who've been cashiered, you know, obviously, George McClellan during the Civil War, Douglas MacArthur after Korea, who chose to speak out publicly against the administration policy that they disagreed with while they were in uniform.
SMITH: Well, let's talk about the line here. Certainly, we would expect, I mean, we would require our military commanders, when speaking to their commander in chief or a commander above them, to speak their mind, right?
Gen. SCALES: Absolutely. Absolutely. Without a question.
SMITH: Now, can they - if they disagree with something their commander does or commander in chief, can they talk with members of perhaps another branch of the military...
Gen. SCALES: Of course.
SMITH: ...talk to their men?
Gen. SCALES: Of course. Well, no, that - the senior leadership of the military is very much like a, I guess, you'd almost attempt to call it something like a club. And as long as you keep the conversations inside the club, you can be just as free to dissent as vociferously and as passionately as you desire. It's only when you go outside the confines of the command authorities in the military and begin to speak in public and your views are counter to the administration is when you've crossed the line.
SMITH: Now what about to Congress? That could be seen as speaking publicly but they have a certain responsibility.
Gen. SCALES: No, no, no, no, no, no, no, no. Look at the law. The law is very, very specific. The first thing a senior officer says - and I testify it, I know - is you must raise your right hand and swear that the opinions that you're about to give are yours and are freely given. And so when you talk to Congress, you have the full authority - legal authority to speak your mind freely and openly, and I've done that many times.
SMITH: Now, have other officers gotten in trouble for not following this line?
Gen. SCALES: Of course. We have a rich history. The admiral in 1941, who went against Roosevelt's decision to move the Pacific fleet from San Diego to Pearl Harbor because he thought it was a stick in the eye of the Japanese, was cashiered by Roosevelt. We're all very familiar with the Truman-MacArthur controversy where MacArthur wanted to attack and recapture all of Korean and retaliate against the Chinese. He was cashiered. The most famous, of course, was the famous Lincoln-McClellan controversy after the Battle of Antietam. When McClellan went public to criticize Lincoln's war policy and Lincoln fired McClellan.
This is very much an American - this is very American. Because in our society, the military must be subordinate to the administration. And it's been that way for 225 years. And that's one of the reasons why we're the only Western democracy to never been - that's never been governed by the military.
SMITH: We're talking about dissent in the military with General Robert Scales. We are going to try and get our listeners into this conversation.
Paige(ph) is with us from Tucson, Arizona. Go ahead, Paige.
PAIGE (Caller): Hello. I was in the Army for four years and sometimes the difficulty in the Army is that your get a direct order that you - but you also have a standing order to challenge orders that are illegal. And if the president is ignoring the Constitution, then that calls into a lot of his actions and decisions and judgments, and you have a responsibility to challenge illegal orders, and you have to protect yourself and the consequences.
SMITH: Well, General, does this - if you have an illegal order, is there a place you have to go to? Can you go to the press with that?
Gen. SCALES: No, it's different, that's different. Everything I've just said, everything I've just said before is a difference in policy and the way wars will be conducted. If it deals with things that are illegal, now that completely crosses the line and that's when a commander, even when in uniform, has the obligation - the moral obligation to speak out. I understand what this lady was saying. And she's absolutely right. And, oh, by the way, that goes for generals just as much as it does for anyone else. And of course the incident that always comes to mind about this was My Lai in 1968 where the incident of My Lai was covered up and the military and the nation suffered irreparable damage by simply trying to sweep it under the carpet.
SMITH: Thanks for your phone call, Paige.
Is it always clear when something is illegal and when something is a military member might just consider wrong?
Gen. SCALES: Oh, sure. I mean, read - the Uniform Code of Military Justice is very explicit on that. If you are - if you have been ordered to perform an illegal act, you are not obligated to carry out. And the old saw about I was following orders doesn't apply anymore, and all you have to do is go an look at the Nuremberg War Crime Trials in 1947, '48 to see how a whole new dimension was created when the horrors of World War II were propagated in many ways by Axis generals who claimed after the war they were only following orders.
No, that's - the code of conduct for an officer is very, very explicit in that regard.
SMITH: The frustration for those of us in the media is that we want this rich public debate about military policies. We have it constantly. And we get views from all sides and we talk to people like yourself, a retired Army general. But at the same time, the people who know the most, who know that best, are members of the military. And it would be interesting if there were some way to get them into the public debate without necessarily going outside the chain of command, or do we just have to suck it up?
(Soundbite of laughter)
Gen. SCALES: Look, I don't think there is any major disagreement in policy - particularly as it regards to Iraq and Afghanistan - that hasn't, at one time or eventually, come out into the public media. That's not the issue here.
The issue is a commanding general publicly undermining, if you will, the policy of the administration through public pronouncements directly to the media. There's a difference between that and the famous now - now-famous and ubiquitous Pentagon leaks which occur all the time.
SMITH: with us now to talk more about what is allowed and what isn't within the military is Eugene Fidell. He teaches Military Law at Yale Law School and the Washington College of Law. And he joins us today by phone from his office in Washington D.C.
Welcome back to TALK OF THE NATION.
Prof. EUGENE FIDELL (Military Law, Yale Law School and Washington College of Law; President, National Institute of Military Justice): Nice to be back.
SMITH: So, when you join the military, do you forfeit some of your rights to speak out?
Prof. FIDELL: Well, forfeit is such a harsh word.
SMITH: You agree. You agree to give up certain rights, of course you do, right?
Prof. FIDELL: Yes. But, you know, a long paragraph has to follow. Really, we have, as General Scales correctly indicated, a wonderful tradition in our society of subordination of the military to the civilian leadership. We don't have a history of military coups, touch wood. And part of the overall package of relationships is that people who are in uniform, whether they're buck privates and seamen recruits or generals and admirals, will observe certain limits on their ability to exercise their constitutional rights to free speech.
You and I have, you know, largely untrammeled rights. In the military, it's a little different. For example, a person in the military cannot speak contemptuously - excuse me - an officer in the military cannot speak contemptuously to the president, the secretary of defense, the service secretary, certain other high officials. That doesn't apply to us. And that's one illustration of a situation where the constitutional right of free expression doesn't apply at least to the same extent for a personnel in uniform as it does to civilians.
SMITH: Well, you know, I visited West Point a few years ago and I was really surprised by how much West Point encouraged the cadets there to sort of have this rich discussion about foreign policy and direction. There were entire classes that had as their premise that perhaps what the military is doing was wrong and there are other ways to look at it.
So, clearly, the military has realized that there is a value to that kind of dissent, at least within the military, and to get critical thinking skills within their cadets, right?
Prof. FIDELL: Right. You need that in order to provide the kind of leadership that any modern military force requires. Of course, the military is not a debating society; it's not the Oxford Union. But there are situations in which dissent may not have quite the right, you know, flavor to it. But disagreement maybe not only appropriate but in some situations desirable. To give you an illustration...
SMITH: Oh, no. We need to take a quick break.
Prof. FIDELL: Okay.
SMITH: We're speaking with Eugene Fidell and General Robert Scales, and we're talking about dissent within the military. A little later we'll talk with a former Marine sergeant who founded a group that's meant to make dissent a little easier for men and women in uniform.
We want to hear from you. Our number here in Washington is 800-989-8255. You can send us e-mail, the address is firstname.lastname@example.org
I'm Robert Smith. It's TALK OF THE NATION from NPR News.
(Soundbite of music)
SMITH: This is TALK OF THE NATION. I'm Robert Smith in Washington, sitting in today for Neal Conan.
We're talking about the rule of dissent within the armed forces. There are strict laws governing when military men and women can and cannot speak out on any number of issues, some are on the code conduct and some are culturally enforced.
Guiding us through those laws is General Robert Scales, retired Army general, and Eugene Fidell, he teaches Military Law at Yale Law School and the Washington College of Law.
General Scales has just a few more minutes to be with us. So I wanted to ask you first. Have you seen much of a change in the nature or amount of public dissent coming from the military especially during this war?
Gen. SCALES: Yes. I've seen less of it in this war - let me rephrase that - I've seen more dissent bubbling out indirectly in this war through the media and indirectly through, I guess, folks like me and those who are sort of attuned, I guess, if you will, to sort of the character of the discourse. And I see less and less coming out officially - that is elements of discussion and dissent coming through the chain of command, if you will, from the president on down to the ranks.
There's clearly less maneuver room, if you will, in this administration and during this war to express dissent officially or unofficially, for that matter, than there have been in previous wars.
SMITH: General, we want to take one phone call while you're still on the line. Paul(ph) joins us. Paul is on the air from Parma, Ohio. Go ahead, Paul.
PAUL (Caller): Hi, how are you doing today, sir?
SMITH: Fine. Go ahead.
PAUL: I do not believe that general or Adm. Fallon should have gone public with his comments. I spent 18 years in the United States Marine Corps and although I did not agree many, many times with my superiors and their orders, I don't believe that I should have gone public with any comments about it. If I did, I may as well, as a leader - and this holds specially true if you ask me - with officers, specially high-ranking officers, you may as well just go right before your troops and tell your troops, I don't agree with the orders. We got to carry them out, but I don't agree with the orders. You just shouldn't do that. That does not add for good discipline and good morale.
SMITH: And, you know, General, that's not true just in the military. You get that advice as a manager in any organization, going - passing orders through, yeah.
PAUL: I worked at a large corporation and we even have within the corporation regulations regarding comments about the company in public - you can get fired and that's a legal thing, if I'm not mistaken. They can hold your feet to the fire outside of work if you make disparaging comments about the company.
SMITH: Absolutely. What do you think, General?
Gen. SCALES: Well, first of all, war is not about making a profit. When wars are fought, lives are lost, and so it is a very, very form - a very, very serious form of human endeavor.
And one of the things - I'm also in the corporate world, and one of the things I've noticed to the gentleman's point is that the quality of dissent and foment(ph) and oftentimes the passion of the argument both before, during, and after a war within the military is much, much richer than it is corporate America simply because the stakes are so high, and all you have to do is rifle through any number of publications or listen to public speeches and pronouncements and read the wires to see how rich the discourse is, literally, from private all the way to four-star general.
SMITH: Thank you very much for your call, Paul. And thank you General Robert Scales. We appreciate that you are retired Army general and you can speak your mind. Thanks for joining us.
Gen. SCALES: Thank you, Robert.
SMITH: With us now is Eugene Fidell from Yale Law School and the Washington College of Law. We touched about this a little bit with General Scales, but have you seen a change in military culture about the type of dissent allowed and the amount?
Prof. FIDELL: Oh. I think - yes. I - and let me say that I think his comments have been right on target. I had a sense though that there were other aspects of this that people weren't focusing on.
For example, the current war is the first one of what - let's call the cell phone era. So opportunities for communication - or the Internet era...
SMITH: Yeah. MySpace. Facebook, that sort of thing. Yeah.
Prof. FIDELL: ...opportunities for communication are much different. It's the first war of the digital camera era. So, you know, this does have an effect. Also, remember - and here contrasting with the situation during the war in Vietnam - there's no conscription, we don't have a draft. So everybody who's currently in the service is there - you know, they - not necessarily everybody wants to be there right now, but there are people who came in to the service voluntarily.
The other thing that I think is worth mentioning is that we have, over the last several decades, let's say, had a substantial growth in the number of officers with very advanced degrees. There were a lot of Ph.D.s in the service. These are people who are used to doing independent work, independent thinking, independent study, and some of them are going to be written off as gifted mavericks - wonderful image. But, you know, others contribute to the robustness of debate within the military community. So that's a change, I think.
SMITH: Well, that's what happens when you have a professional Army, any profession part of being a professional is having a lot of opinions and having an invested stake...
Prof. FIDELL: It's true.
SMITH: ...in how things turn out. On this topic, I wanted to go to now to Liam Madden, and he joins us. He served in the Marine Corps for four years and now he is a student at Northeastern University in Boston. He cofounded a group called Appeal for Redress while he was a Marine.
Liam Madden is with us studio at WBUR, a member station in Boston. Thanks for being here.
Mr. LIAM MADDEN (Cofounder, Appeal for Redress; Former Marine): Thank you for having me, Robert.
SMITH: I understand you were in Iraq in 2005, right?
Mr. MADDEN: That's correct. I served in Iraq in Haditha in September 2004 through February of 2005.
SMITH: Did you speak out against the war when you were actually deployed there?
Mr. MADDEN: No. At the time, I felt that my biggest commitment was to the people around me and to ensure that I did my job as best as I could. And that's kind of a personal decision that every person who is serving overseas has to make at that time.
SMITH: But when you came back, did you speak out against the war while in uniform?
Mr. MADDEN: I spoke out against the war - I cofounded this petition of over 2,000 service members who asked Congress to end the war while I was still in the Marine Corps. But the Uniform Code of Military Justice actually cites that you can't do it while in uniform, while on base or while on duty. So, although I was serving as an active duty Marine, I never did it representing - I never spoke out representing the Marine Corps or the Department of Defense. I did it off duty.
SMITH: Now, of course, the media may not take this as a - you may have obeyed the letter of the law and found a loophole for that, but clearly the media would treat this as someone who is in the military, who disagrees with the policies of the military.
Mr. MADDEN: Well, I think it's interesting that you say loophole. I think it's actually a protection that's afforded to members of the military because that's exactly what Americans who expect people who take the oath to protect and defend the Constitution of the United States to be allowed to do, to be able to speak out on behalf of their conscience and do what is right, and that is the highest authority we have is the Constitution. Our duty is to protect that.
SMITH: Eugene Fidell, who is a professor of Military Law, has this been tested in the courts? Does a military member have all the protections for the constitution at all times?
Prof. FIDELL: Well, the answer is no. At times, issues have bubbled up. I remember there was a famous case during the Vietnam War of a junior officer who was engaged in a peace march in which he carried a sign accusing President Johnson of being a fascist. He misspelled the word fascist by the way, and he wasn't punished for bad spelling, but he was convicted at a court martial for treating President Johnson contemptuously or speaking of him contemptuously.
Other issues tend to come up from time to time. For example, there were issues as to whether a G.I. could have a bumper sticker that said, Impeach Nixon, around the time of the Watergate controversy. And it was determined by Army legal authorities that there was no provision on having such a bumper sticker. But it's - a great thing about our society is we're very creative about finding ways to express our view, sometimes in ways that are a little subversive.
SMITH: Well, let's have both of you stick around while we get some of our callers in the conversation. We go now to Ian(ph). Ian is in Blacksburg, Virginia. Hey, Ian.
IAN (Caller): Hello. It's very - I'm happy to be on the program. An issue that is, I think, missing is the difference between the (unintelligible). The Reality of the situation is, you're (unintelligible) being in the armed forces that everyone around you needs to know that you have their back and they have your back, and voicing dissent and voicing a contrary opinion, you are offering up a reception that that may not be the case.
Even for me right now to be on, you know, the air with you, it's a questionable thing for me. I don't know if anyone is going to hear this and I don't know what type of trouble this may cause.
SMITH: Well, thanks for your phone call, Ian. I'm going to take you off the line because we're having a little trouble hearing you. But I'm going to get Liam Madden to respond. Because you were sensitive to how your fellow military members felt while you were actually in the field but, you know, this is the modern age, anything you say can get back to them, and do you think about that when you're speaking on political issues?
Mr. MADDEN: Oh, I agree strongly with the sentiment that there's a big difference between the reality and the hypothetical and I think the reality here is that in the cases like Admiral Fallon resigning it's - in speaking out, it indicates that the reality of the situation is that there's a political entity in power that has a clear record of lying our nation into conflicts. And the reality, in my opinion, is I want a leader that is bold enough and the has the courage enough to not sit on his hands during a reality like that. So reality is an important part to infuse into this scenario and I think it leads me, personally, to the conclusion that we are on a dire situation and we can't be embroiled in any more conflicts based on lies.
And that as a soldier, as a Marine, as a service member, it's the highest priority leaders have, is to ensure that when you sign up for the United States Armed Forces, you do so with trust that your government will put you in harms way only when it is just and only when it is necessary. And that's a trust that's extremely important, and protecting that is just as important to maintaining the sanctity of the oath of services as any other.
SMITH: Let's speak with Fred(ph). Fred is in Wyoming. You're on the air, Fred.
FRED (Caller): Yes, Robert, thanks for taking my call. I served in Iraq as well in April of '04 to April of '05, and I believe that we definitely need to help more dissent within the ranks because ultimately more dissent leads to a more informed policy. And there are troubles within each command to bring the dissent up. I don't believe it's appropriate to go the media directly, but if and when your dissent isn't being taken seriously within your command I think it's up for you - you might want to think taking it outside.
SMITH: Well, thanks for your phone call. Let's go to Bob(ph) now. Bob is in Minneapolis.
BOB (Caller): Good afternoon. I have a question concerning the use - possible use of the classification system by vigorous people trying to restrain their subordinates. If they classify things top secret, it would restrain the subordinates from testifying before open members of Congress. The Congress would go into closed session. Who passes on the eligibility of those members of closed session to hear classified information and could this be used to restrain the passage of information from the military to the Congress? Thank you.
SMITH: Thanks, Bob. Eugene Fidell, you want to take that question?
Prof. FIDELL: Well, certainly members of Congress, particularly members of the committees that are concerned with military and national security issues, do have a clearances and the clearances are given by the executive branch, obviously. Is there a danger of manipulation by withholding a clearance? I don't think that's a significant danger. But I think there is a problem of over-classification. I think things are classified too easily and it's very difficult to get an outside source, let's say, to look over the executive branch's shoulder and say, you know, you classified acts not because it's really national security at risk but because it might be embarrassing. And that kind of thing is very hard to poke into from outside.
SMITH: You are listening to TALK OF THE NATION from NPR News.
Liam Madden, I wanted to ask you a question because I think people - even people who want to hear some forms of dissent publicly might think there's a line which gets crossed, which is, at some point, do you want to hear all of the tactics and military strategy basically debated at the highest levels and in the media. At some point, the unified command isn't there anymore if everything is being run through leaks and statements and press conferences.
Mr. MADDEN: Well, I don't think that necessarily tactics should be open for discussion publicly. I think that's something that - it doesn't make any sense at all to have the government openly discussing what kind of methods we would use to fight a war...
SMITH: To the (unintelligible) policy.
Mr. MADDEN: Exactly. I think that the reality of the situation is that our government has a history of bringing us into conflicts when it is unjust, when it's unnecessary. And that, one of the first lines of defense is a vigilant and, you know, honestly courageous officer corps, enlisted ranks of the military being what is historically been referred to as winter soldiers, people who stand up in times of crisis, during the country's darkest hour and does what's difficult to do but necessary. And I think that is being repeated - it was repeated from Shays' Rebellion - soldiers coming back after the revolution and demanding, you know...
SMITH: Liam we want to try and get one last phone call. Michael(ph) joins us now. Michael is in Oklahoma City. Go ahead.
MICHAEL (Caller): Yes. Hello. I'm Michael in Oklahoma City. I'm a National Guardsman. Just last year, I spent a year in Afghanistan and what I've discover it overtime is it's a lot easier to defend in-house, within the ranks. When I was coming up through the ranks in the 90's as a junior enlisted soldier, it was fairly irritating to hear your superiors say things along lines of, well, if you don't vote for this guy, you know, you're an idiot, or well, I'm not going to have anybody of this particular political persuasion in my squad or my platoon, I'm going to get rid of them.
Today, you know, what I noticed in Afghanistan was it was lot easier for me to talk with my superiors. There was a much more of a common goal and respect for other opinions, you know, to a certain point. I mean, you know, with how you deal with your superiors, of course that never changes. But I guess what I found is that it's more valued internal to the Army. And doing it externally is still frowned upon it. It doesn't matter what everybody thinks about the current of situation. We're given an order, we salute and move out.
SMITH: All right. Thank you very much, Michael. We have run out of time on this. But Eugene Fidell, president of the National Institute of Military Justice. He teaches military law at Yale Law School. Thanks for joining us.
Prof. FIDELL: My pleasure.
SMITH: And Liam Madden is a former Marine sergeant. He is a cofounder of Appeal for Redress. He joined us from the studios of member station WBUR in Boston. Thanks, Liam.
Mr. MADDEN: Take care.
SMITH: Coming up, Silda Wall Spitzer stood next to her man as he admitted to what he call private failings. Should you stand by your spouse when he or she lands on the hot seat? It's time for our weekly visit from 'Ask Amy's' Amy Dickinson. We'll talk about betrayed spouses next.
I'm Robert Smith. It's TALK OF THE NATION from NPR News.