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Gen. Boykin and the Pentagon's Power to Punish
Sarah Whalen, Special to Arab News
PHILADELPHIA, 30 October 2003 — By now the world knows that three-star US Army Lt. Gen. William Boykin, deputy undersecretary for intelligence, has, often in uniform, for two years told Church and prayer breakfast audiences not only that Muslims hate Americans “because we’re a Christian nation, because our foundation and our roots are Judeo-Christian, and the enemy is a guy named Satan,” but that terrorism can only be defeated “if we come against them in the name of Jesus.” Additionally, Gen. Boykin states that “God revealed” to him that demons not only inhabit parts of the Middle East, but that he has photographed of them, specifically flying like black smudges over Mogadishu, where Boykin once confronted and arrested a Muslim warlord who, the general claims, said he’d placed his trust in Allah, but was defeated because he worshipped “an idol” which was defeated by Boykin’s “bigger” God.
“This just doesn’t reflect what the government thinks,” Bush protested to reporters on Air Force One, and again to world leaders while traversing Asia recently on tour. Condoleezza Rice held to Bush’s line that the war against terrorism was not a war of religion, as did US Secretary of State Collin Powell, but only by the thinnest of allusions to Boykin, and both Rice and Powell sidestepped questions about whether Bush explicitly condemned Boykin’s comments. But even so, it’s fair to say that, in response to Boykin’s remarks, the Executive Branch publicly asserted that the US is fighting a conventional war against terrorism that has nothing to do with religion. And specifically, nothing to do with Islam.
And some senators and congressmen have similarly denied that America’s “War on Terror” is properly a “War on Islam.” But does the Pentagon agree?
Probably not. And this is important, not least of all because the Pentagon is actually fighting the war.
If it did agree with the Executive, the Pentagon could easily and immediately silence its preaching, outspoken general who regales fellow “Christians” with photographs of the supposed “Prince of Darkness” flying skyward over Baghdad, and claims that the military enemy facing US soldiers in the Middle East is “Satan” in the guise of the human enemy, most of whom are Muslim. But instead, the Pentagon has refused to even criticize Boykin, let alone remove or reassign him as some Muslims have requested. The Pentagon is supported by Roberta Combs, president of the Christian Coalition of America, who said, “Gen. Boykin has constitutional First Amendment rights including speaking out about religious matters in the public square.” And Dr. James Dobson of Focus on the Family averred that Boykin’s “words were consistent with mainstream evangelical beliefs and he had a right to express them.” Gen. Richard Myers, chairman of the Joint Chiefs of Staff, declared that Boykin “broke no rules speaking to churches.” And no less a Pentagon authority than Defense Secretary Donald Rumsfeld defended Boykin’s “outstanding record” of military service, and insisted that he couldn’t prevent military officials like Boykin from making controversial statements: “We’re a free people. And that’s the wonderful thing about our country.”
But Rumsfeld is wrong. Can the Pentagon stop Boykin from talking? Yes, and easily. Rumsfeld’s claim is correct only in theory — at least to some extent, a person’s constitutional rights, including the right to freedom of speech, are not forfeited upon enlistment or conscription into the US armed forces. But in fact all military personnel, including generals of all “star” ranks such as three-star Boykin, are governed by a special group of laws that sometimes restricts both soldiers’ freedoms of behavior and expression — the US Code of Military Justice. And the code and the legal cases that discuss it make clear that in the military, you can’t always say what you want.
Unless what you’re saying pleases the Pentagon.
If your speech pleases the Pentagon, they let you keep talking. Church groups, Rotary Clubs, universities, and even Fortune 500 companies. But if the Pentagon doesn’t like your speech, they can order you to shut up. And if you don’t shut up, whether you’re in the public square or at a prayer breakfast or in a barracks, they can do far worse to you, like take away your rank and pay, and throw you into jail for years.
Because whether you’re a genral or the most bottom-rung private, discipline and obedience is what military service is all about. Both American historians and lawyers have long recognized a definitive trend in balancing between military discipline as required under the Military Code, and an individual’s exercise of his constitutional civil rights — a trend that tilts strongly in favor of the military at the expense of individual liberty. This tilt was strongly proved in the 1974 US Supreme Court’s ruling in Parker Vs. Levy, stemming from Army Capt. Levy’s 1967 court martial conviction for speaking his mind on a sensitive subject at the time — the Vietnam War. Capt. Levy had publicly stated on numerous occasions that he “would refuse to go to Vietnam if ordered to do so,” and that US “Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.”
The US Army charged Levy under two “catchall” articles of the US Code of Military Justice: Article 133, which punishes “conduct unbecoming of an officer,” and article 134, the “General article” which more forcefully punishes “all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital (that is, punishable by death).” Levy’s army court martial found his outspoken “free speech” criticizing the war punishable under both these articles, and sentenced him to dismissal from service, forfeiture of all pay and allowances, and three years’ imprisonment at hard labor. Levy then appealed his conviction to the Federal Courts.
Writing for a six-member majority, Justice William Rehnquist held that Levy’s remarks were “unprotected under the most expansive notions of the First Amendment” because the military’s need for obedience and discipline of its soldiers trumped the soldiers’ personal civil rights when these came into conflict with military views and objectives. Rehnquist reasoned that while “members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be unconstitutionally impermissible outside it.”
Over time, the US Supreme Court has focused more and more on the convenience of the US military, and less and less on the civil rights of individuals within the military’s ambit, so much so that it is now fair to say that it leaves the duty to protect the civil rights of military members largely in the hands of military authorities themselves, effectively narrowing access to civilian justice on the grounds of “military necessity” and by viewing the military as “a specialized society separate from civilian society.” This view frankly allows the military almost complete freedom to punish soldiers for speech it doesn’t like, and reward speech that pleases it.
There remains one important check on the military’s power, and that is its ultimately civilian leadership — the president, who is its Commander-in-Chief. President Bush could easily discipline, relieve, or even remove Boykin from military service if he wished. There is famous precedent for this Executive power over even the highest echelons of the military. Then-President Harry S. Truman had similarly relieved Gen. Douglas MacArthur from his command in 1951, at a particularly dangerous and delicate turning point in the Korean War, because of published remarks and a letter MacArthur wrote to a Republican congressman that implicitly criticized Truman’s political handling of the war. Truman held that these exercises of freedom of speech by MacArthur, a brilliant, imperious, and outspoken general and hero of the Battle of Inchon, constituted “insubordination,” and he relieved the popular general of his command.
But neither MacArthur nor the case for and against protecting his outspokenness just faded away. Protracted and bitter hearings were held by the US Senate committees on the Armed Services and on Foreign Relations in which MacArthur testified as to his own motives for speaking out publicly, and Truman was defended by the distinguished Secretary of Defense George C. Marshall, a World War II hero and former army chief of staff, secretary of state, and general of the army. When a senator asked Marshall if he would have spoken out during World War II if he had believed that some Executive policy was not in the country’s best interests, Marshall declared that this had in fact happened to him, and rather than speaking out publicly, he consulted privately with the president to affect policy change: “I honestly thought that it was ruinous” to the country “for me to come out in opposition to my commander in chief.”
So the question is, do Boykin’s remarks and ideas about flying, black-smudge demons and the satanic nature of the present Middle East conflict oppose those of his commander in chief? If they did, and Boykin felt the same urgency as MacArthur did, he could conceivably take it upon himself to appeal directly to Congress as a means of making his position known to the public. This aspect of US constitutionalism was actually discussed during the MacArthur hearings, and Marshall agreed with one senator’s suggestion that “a man commanding as chief of staff or a man commanding one of the great armies of this country” might one day have to determine “whether his loyalty was to his country first or whether it was to the administration in power,” although Marshall disagreed that this scenario was valid in MacArthur’s case.
But Boykin is unlikely to so confront his commander-in-chief, not least because Boykin believes that God, rather than the US Supreme Court deciding in tandem with the American public, put Bush into office. Boykin simply doesn’t need to confront anyone. Boykin is a mere taste of things to come. Boykin’s beliefs are rapidly becoming mainstream American ones, increasingly seen by the Pentagon as necessary to push the international war on terrorism forward even as both military and civilian enthusiasm lags. Notably, the Department of Defense has not issued even one new guideline or restated any existing ones that deal with Boykin’s position — something it would have done immediately had there been any true controversy within the Pentagon. In his latest leaked memo, Rumsfeld asks: “Are we capturing, killing or deterring and dissuading more terrorists every day than the (Islamic schools) and the radical clerics are recruiting, training and deploying against us?” Is the military war enough? And the answer is obviously, no. Something new must be found, a “new institution” that “seamlessly focuses the capabilities of several departments and agencies” on fighting terrorism. And the ideological drive to found such a novel, “seamless” institution will clearly come from men like Boykin, who seamlessly can see the war in terms of black and white, good against evil, Satan, demons and idols against the “Judeo-Christian God.”
Boykin’s “apologies” have themselves been interesting convolutions of diction and grammar, but strangely, they seek not to explain how Boykin views Islam, but rather to take it totally out of the picture. “Peaceful” Muslims are okay, is the official line of both the Bush administration and the Pentagon. Non-peaceful Muslims, for whatever reason, are officially thrust into the realms of satanic darkness.
But there is some cross-over, some room for Islamic interpretation of Boykin’s remarks, whether the Pentagon and the Bush administration recognizes it or not. Muslims believe not explicitly in demons but in jinn, beings created by God from the “smokeless fire” who like men, can be either good or evil, and who sometimes cross over directly into the physical world. Think about that black smudge on Boykin’s photograph, the smudge that Boykin says “God revealed” to him, and wonder whether that dark, demonic presence, if real, is there because of godless “idol worshippers,” marginalized Muslims, or because of a great Christian army that is now, apparently, killing thousands in the name of the Judeo-Christian God.
It’s a question best pondered soon. Despite his many heartfelt speeches on just this topic, Boykin and his brotherhood may be the very last of us to know.
— Sarah Whalen teaches at Loyola University School of Law. She taught Islamic Law at Temple Law School in Philadelphia, and is admitted to practice before the US Court of Military Appeals.
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| Earth, a planet hungry for peace |
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| The Israeli apartheid (security) wall around Palestinian population centers (Ran Cohen, pmc, 5/24/03). |
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| The Israeli apartheid (security) wall around Palestinian population centers in the West Bank (Ran Cohen, pmc, 5/24/03). |
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