An Army Reserve staff sergeant who last week wrote a critical analysis of the United States' prospects in Iraq now faces possible disciplinary action for disloyalty and insubordination. If charges are bought and the officer is found guilty, he could face 20 years in prison. It would be the first such disloyalty prosecution since the Vietnam War.
The essay that sparked the military investigation is titled "Why We Cannot Win" and was posted Sept. 20 on the conservative antiwar Web site LewRockwell.com. Written by Al Lorentz, a non-commissioned officer from Texas with nearly 20 years in the Army who is serving in Iraq, the essay offers a bleak assessment of America's chances for success in Iraq.
"I have come to the conclusion that we cannot win here for a number of reasons. Ideology and idealism will never trump history and reality," wrote Lorentz, who gives four key reasons for the likely failure: a refusal to deal with reality, not understanding what motivates the enemy, an overabundance of guerrilla fighters, and the enemy's shorter line of supplies and communication.
Lorentz's essay contains no classified information but does include a starkly critical evaluation of how the Bush administration has conducted the war. "Instead of addressing the reasons why the locals are becoming angry and discontented, we allow politicians in Washington DC to give us pat and convenient reasons that are devoid of any semblance of reality," Lorentz wrote. "It is tragic, indeed criminal, that our elected public servants would so willingly sacrifice our nation's prestige and honor as well as the blood and treasure to pursue an agenda that is ahistoric and un-Constitutional."
The essay prompted a swift response from Lorentz's commanders. In an e-mail this week to Salon, Lorentz, declining to comment further on his piece, noted, "Because of my article, I am under investigation at this time for very serious charges which carry up to a 20-year prison sentence." According to Lorentz, the investigation is looking into whether his writing constituted a disloyalty crime under both federal statute (Title 18, Section 2388, of the U.S. Code) and Article 134 of the Uniform Code of Military Justice.
According to the UCMJ, examples of punishable statements by military personnel "include praising the enemy, attacking the war aims of the United States, or denouncing our form of government with the intent to promote disloyalty or disaffection among members of the armed services. A declaration of personal belief can amount to a disloyal statement if it disavows allegiance owed to the United States by the declarant. The disloyalty involved for this offense must be to the United States as a political entity and not merely to a department or other agency that is a part of its administration."
Under UCMJ guidelines, the maximum punishment in the event of a conviction would be a dishonorable discharge, forfeiture of all pay and allowances, and confinement for three years.
Prosecutions are rare, however, says Grant Lattin, a military lawyer and retired Marine Corps lieutenant colonel, because members of the military "have the constitutional right to express their opinions pertaining to the issues before the public. Short of there being classified material and security issues, people can write letters about military subjects. If you look at the Army Times, you'll see letters from people on active duty complaining about this and that."
For instance, in September 2003, Tim Predmore, an active-duty soldier with the 101st Airborne Division, based in northern Iraq, wrote a scathing letter to his hometown newspaper, the Peoria Journal Star in Illinois. "For the past six months, I have been participating in what I believe to be the great modern lie: Operation Iraqi Freedom," Predmore's letter began. "From the moment the first shot was fired in this so-called war of liberation and freedom, hypocrisy reigned," he continued, labeling the war "the ultimate atrocity" before concluding, "I can no longer justify my service on the basis of what I believe to be half-truths and bold lies."
Going beyond the UCMJ and prosecuting disloyalty as a federal crime is "extraordinarily rare," Lattin says, noting that the last published case was in 1970, in U.S. vs. William Harvey. Under Title 18, Section 2388, it's a crime, punishable up to 20 years in prison, "when the United States is at war, [and a person] willfully causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or willfully obstructs the recruiting or enlistment service of the United States, to the injury of the service or the United States."
In the Harvey case, a Vietnam-era soldier was accused of making disloyal statements by urging a fellow soldier not to fight in Vietnam. "Why should the black man go to Vietnam and fight the white man's war and then come back and have to fight the white man," Harvey told the soldier, adding that he "was not going to fight in Vietnam and neither should [you]." The case was brought before the U.S. Court of Military Appeals, which noted "the language of the comments were on the line between rhetoric and disloyalty," as well as the fact that "disagreement with, or objection to, a policy of the Government is not necessarily indicative of disloyalty to the United States." The court alternately upheld and reversed portions of Harvey's conviction for disloyalty.
As for Lorentz's case, Lattin, who served as a Marine judge advocate, says it's not uncommon for commanders to threaten soldiers with legal action in order to make a point: "If they know there's an offense for a disloyal statement, I wouldn't be surprised if he said, 'Knock it off.'" Lattin doubts that in the end Lorentz will face prosecution for his writings. "After this gets to lawyers and prosecutors who think about the consequences and the First Amendment, I don't think this will go anywhere."