Counseling Military Conscientious Objectors During Wartime
By Kathleen Gilberd
During the Gulf crisis, many of us counseled military Conscientious Objectors (COs) under extremely difficult circumstances. We encountered command responses not seen since the Vietnam War, as well as newly-created obstacles to successful claims. Our experiences provide some valuable lessons for counseling during future military actions. Some of them are common sense counseling approaches which we would use in counseling COs under any circumstances, but which are even more important in the middle of military actions.
Service members need to be aware of all of their options.
During the Gulf crisis, there was a fair amount of discussion of Conscientious Objection and resistance in the press, and some peace groups developed publicity materials which emphasized conscientious objection as the alternative to service in the Gulf. Many soldiers and sailors who came to us stating that they wanted to file conscientious objection claims did so because they had heard or read about COs and did not know any other options were available.
While it is always important to make sure that GIs are aware of all the discharges for which they might qualify, crisis conditions make it even more important that potential COs are given full descriptions of all of their alternatives. In many cases, this will simply reinforce their belief that conscientious objection is the route they should take, but many will find that hardship, medical, homosexuality, or other discharges fit them as well or better.
For active duty personnel, of course, conscientious objection claims should normally not be accompanied by any other discharge claim. For these individuals, it is even more important that all bases for discharge be explored before a CO claim is initiated. This is not the case, however, with recruits seeking separation from the military's Delayed Enlistment Program, under which young people sign up for the military up to a year before going on active duty. Members of the Individual Ready Reserve (IRR) have had some success raising multiple discharge claims.
During the Gulf crisis, many of us found military commands more resistant to CO claims than they had been in the past. GIs filing CO claims during a period of heightened militarism should be forewarned about the biases they will encounter and about the possibility that their commands are likely to be more receptive to other discharge claims. This is particularly true for clients who also have disciplinary problems. Returning AWOLs or UAs should understand the possibility that filing a CO application will make commands more punitive in disciplinary proceedings.
GIs and counselors need to be prepared for shortened preparation time.
The crisis situation of the Gulf War created incredible time problems for CO applicants. Most of us are used to spending a minimum of three to four weeks working with COs to ensure that their applications are well-prepared and that letters of support are sufficient. For applicants facing imminent activation or deployment during Operation Desert Shield, the reality was much different. However, it is essential that we urge GIs to spend as much time as possible writing and rewriting their applications before submission. The temptation to turn in a first or second draft of a CO application or to turn in a final draft or letters that have not been reviewed by a counselor must be resisted as much as possible.
The temptation to let COs work from sample applications to speed up the process should be avoided, since it is difficult for anyone to keep from picking up phrases or a writing style that is not their own. This discrepancy is likely to show up in formal interviews when a GI speaks in a manner or using language that is very different from that used in his/her application. It is far safer to suggest that GIs work from outlines of the issues which should be discussed in response to each question on the CO application.
Given the time constraints they faced, many GIs were uncomfortable writing and rewriting drafts of their applications. We found it important to spend more time than usual talking with them about the need for well-crafted applications and the fact that this work also pays off in the interviews, since well-prepared applicants have a better sense of how to express their beliefs verbally and are less likely to be caught off-guard by questions or issues they have not considered.
Having said all this, I should add that I recognize that some applicants will be unable to take the time necessary to prepare polished claims. In such cases, counselors may want to suggest that the applicants state in the applications that they were written under time constraints and why. This may make it easier to explain omissions (but not mistakes!) in the initial claims and to justify additional written submissions.
In addition, though counselors normally like to have all letters of support submitted with the applications, it may be wise to hold a letter-writer or two in reserve, to submit just prior to the Investigating Officer interviews. Their letters could be used to shore up any weaknesses in the applications that have been discovered after the applications were submitted and any problems in the chaplain's interview. If, for instance, the chaplain found that the client had failed to explain adequately his opposition to noncombatant duty, Uncle Charles's letter might comment on the client's discussions with him about just that point.
There are some useful court cases holding that difficulty in articulating beliefs is not an appropriate reason for denial of a claim. Where clients have not had adequate time to write thorough and thoughtful applications, these cases may be helpful in rebuttal to investigating officer reports which mistake such inarticulateness for lack of depth of belief.
We need to consider and confront the command biases which occur during military interventions.
CO cases processed during and shortly after the Gulf War have demonstrated several common military biases: a belief that claims are being filed out of cowardice or expediency by applicants who just do not want to risk harm in time of war; a belief that conscientious objection is the easy way out; and a belief that claims are likely to be motivated by policy or political considerations, based in part on officers' biased views of public resisters who have expressed CO beliefs. We should be prepared to confront these biases in CO applications and letters and prepare clients to deal with them in their interviews.
The tendency to suspect all wartime COs of cowardice or of acting out of expediency based solely on a desire not to die in the war zone is the most significant of these biases. Applicants may be able to address it by showing that their beliefs were beginning to grow before military action began or before they had any inkling the war could affect them. Where possible, they should mention and document even earlier experiences or actions linked to those initial beliefs. While this is always important, wartime applications may need to make the point more strongly than other claims. It is particularly useful to include these early beliefs in support letters (Last February, Jane wrote to tell me that she was beginning to have questions about X, and that she was praying more often in hopes that she would find the answers to these questions.) COs taking this approach should certainly be prepared to show that there has been substantial development of their beliefs between these early experiences and the time the beliefs finally crystallized.
Some COs may be able to say that their beliefs crystallized before they were confronted by the prospect of participation in a military action, although they should be prepared to explain any delay in filing their applications. The rule of thumb among some counselors is that claims should usually be submitted between two and six months after the beliefs crystallized, although opinions may differ here.
At the same time, we must remember that it is entirely consistent with CO regulations and law for beliefs to develop during or in response to war. COs must make it clear that, even if their beliefs were triggered by their reflection about the war they were asked to fight, their beliefs have come to encompass all wars. It may be helpful for them to write specifically (and in more detail than we would normally suggest) about other foreseeable wars they would oppose, including defensive wars. If they can stomach it, some COs may wish to mention and document their support for the current war prior to development of their CO beliefs.
Given these suspicions of expediency, we must take extra care to review clients' personnel and medical records (and any other information available to the command) for evidence of ulterior motives (such as evidence of medical or family problems or indications that they had other reasons to dislike military life). This information needs to be explained or negated in the application.
The belief that CO is the "easy way out" is closely linked to this first bias. COs may wish to stress the difficulties of being a CO. Presumably they face opprobrium from other soldiers and the civilian community, difficulty in obtaining jobs during a period of great support for the war, and loss of security and military benefits. Some of these things may sound silly out in the real world, but many military officers believe them. COs may wish to give specific examples of these difficulties: angry responses from a parent or close friend, their realization that they would not be able to go to work for retired master chief Smith's construction firm, etc. COs should also make clear in their applications and support letters that the beliefs did not come easily - that they agonized over their developing beliefs and undertook much soul searching in the process.
The suspicion that COs are really political activists in disguise is less widespread but bears watching. Some COs may wish to distance themselves from politics or activism, although I would not encourage GIs in such an approach. It is more appropriate to ensure that political terms and arguments are minimized in the application. Where the command is aware that the applicant has engaged in political activities or in political discussions with other soldiers, these acts might be mentioned and re-explained in moral or religious terms.
The law certainly permits COs to have political views so long as the religious or moral beliefs are paramount. Where clients are comfortable defining their political activity in religious or moral terms, this may prove the safer approach during wartime, particularly for COs who would be unable to litigate a denial of their claims. Where clients feel strongly that their political beliefs need to be discussed, it may be important to remind commands of that case law.
Counselors and attorneys must be prepared to counter harassment of COs.
During the Gulf crisis, we saw a significant increase in harassment of CO applicants. This has most often taken the form of verbal abuse from other soldiers and superiors, but has sometimes involved physical abuse or punitive assignment to unpleasant duties. It is essential that such harassment be challenged for the safety of current and future CO applicants. We should be sure GIs are aware of formal complaint procedures (for redress of grievance), their right to seek Congressional assistance, and the pros and cons of public pressure. Counselors should also consider intervening with commands whose members are abusive to COs, or working directly with Congressional aids to ensure that their inquires are effective.
Special attention should be given to preparation for and conduct of interviews and hearings.
Interviews and hearings, particularly the Investigating Officer (IO) interview, play a key role in any CO claim. Experience during the Gulf War has shown that biased and often overtly hostile hearing reports can badly damage even the strongest CO claim. In future wars, we must give careful consideration to preparation for the interviews and to the conduct of the hearings themselves.
In addition to general preparation for hearings it is important to discuss questions that may stem from wartime biases against COs. The command biases discussed above are likely to affect the psychiatrists, chaplains, and IOs who conduct these hearings and should be the subject of discussion and practice questions. Counselors may also want to consider attending interviews and hearings. While military regulations do not specifically permit representation, they do not prohibit it. One does not have to be an attorney to participate in this process.
We need to develop counseling techniques for clients being sent to a war zone.
Transfer and activation of CO applicants were important issues in the Gulf War. Simply put, the services are normally free to transfer CO applicants after they have filed CO claims (unless the transfer is done as punishment for the filing of the claim or the command has delayed and obstructed the claim for such a long time that a federal court takes offense). This differed from standard practice during the Vietnam War. Similarly, the services are apparently permitted to activate reservists who have filed CO claims prior to activation.
On occasion, COs and their representatives have been successful in delaying activation or deployment while CO claims are (at least initially) processed. In some cases, short-term medical problems have kept soldiers or sailors at their old duty stations for weeks or months. With clients' pending deployment, it is important to discuss any such medical conditions and ensure that the clients seek treatment. In raising this issue with the military, however, they should be sure not to appear to be manipulative. Similarly, they should be careful not to let the command think the medical problems are the real reason they want a discharge; CO regulations specifically suggest that commands look for ulterior motives or other reasons CO applicants may want to be discharged. Inactive reserves may have other legitimate problems which permit postponement of activation orders - such as family hardship - and these should also be explored.
Generally, however, GIs and counselors or attorneys should make plans early on for working together over a long distance. This may involve some contingency planning and having the clients sign authorizations for the counselor/attorney to receive information from the military or to act on the clients' behalf. It may mean having the GI contact Congressional representatives long before it proves necessary, to ask for assistance should it be needed and to authorize the counselor or attorney to request assistance on the clients' behalf. It also means covering in advance the issues that are difficult to discuss by long distance, such as Article 138 and other complaint procedures, procedures for non-judicial punishment and NJP appeals, etc.
Where CO applications must be completed in a war zone, or preparation for hearings must be done at that distance, special problems occur. Since mail is routinely screened, counselors, attorneys, and support persons must be sure not to discuss the claim or hearing in a way that appears to suggest ideas or beliefs to clients. Commands are likely to use this against clients if they learn of it, and an allegation that someone else supplied the ideas for a CO can sabotage a claim. It is, of course, safer to tell a client what the procedures and rules are, or to remind them of the criteria for CO discharge in careful terms, but suggestions of words or ideas to use are dangerous.
A CO's isolation in a war zone can have real psychological effects. It may be helpful to put the COs in touch with church groups, local peace centers, supportive veterans, or others who can provide moral support through the mail. These supporters should also be warned about the dangers of censored mail and the importance of avoiding suggestions about the substance of CO claims.
Commands are often more cavalier towards COs when they know that legal support is thousands of miles away. During the Gulf crisis, many commands took forever to process CO claims, engaged in illegal retaliation against COs (for example, giving them demeaning assignments purely on the basis of the CO application), and denied COs some of the rights guaranteed them in the CO regulations. Counselors and attorneys often need to communicate directly with the command by mail, pointing out some of the legal remedies available (Article 138 complaints, IG complaints, complaints under the Military Whistleblower Protection Act, congressional intervention, litigation, and the like) if the rules are not followed. Similar correspondence to military headquarters may also help to place pressure on the local command.
Where commands fail to respond to such warnings, it is helpful if clients and counselors or attorneys have decided in advance about the use of complaints or litigation; these are very difficult decisions to make by mail if proper groundwork hasn't been laid beforehand. Aggressive use of administrative complaints, Congressional intervention, and litigation can be helpful not only to the individual client, but to other CO applicants as well. If the military understands that failure to comply with the rules will result in lots of outside scrutiny, and force them to respond to numerous complaints, they may exercise more caution in handling CO claims.
At the same time, clients should never be encouraged to file complaints, ask for Congressional assistance, or litigate a case unless they have been carefully warned about the possibility of command retaliation. This is a very real problem, and clients need to weigh the likelihood of success against the likelihood that they will be harassed or abused for complaining. The Military Whistleblower Protection Act provides some very limited protection for soldiers who have been the victim of such retaliation, but only if their complaint (or preparation to make a complaint) was addressed to an inspector general or a Congressperson. Members of Congress, even if they are fairly conservative, may be quite offended if constituents are harassed for talking to them, and may take stronger action as a result.
Special care must be taken with COs who have disciplinary problems.
The Gulf crisis gave all of us plenty of experience with the overlap of CO and disciplinary proceedings for COs who had gone AWOL, disobeyed orders, or missed movement as a result of their beliefs. COs with disciplinary problems are treated much more harshly than other soldiers with equivalent or more serious disciplinary problems during a military action. This disparity takes the form of uneven charging (desertion instead of AWOL, for example), a greater likelihood that small offenses will go to courts-martial rather than non-judicial punishment, less sympathy for mitigating information (particularly if it relates to the CO claim itself), and harsher sentences.
Given this, it may be helpful during wartime to warn potential COs that relying on another basis for discharge may lighten their treatment in disciplinary problems. Clients with legitimate family hardships may wish to pursue that claim instead, since commands are sometimes sympathetic to soldiers who go AWOL to care for an ailing parent, etc. Generally, using CO beliefs to argue against harsh sentencing in disciplinary proceeding proved counterproductive during the Gulf crisis. This is not meant to discourage those applicants who feel it is important to witness to their CO beliefs in this forum, including a court-martial, and who wish to raise their CO claim as a matter of principle. They simply need to know that they are taking a risk of harsh treatment in doing so.
When disciplinary problems coincide with CO claims, it is important to push for dual processing, so that the CO claim is not left in limbo until disciplinary action and punishment are over. The regulations can be read to permit or encourage such dual processing, but it often takes strong complaints to get commands to process the CO claim.
In most instances, of course, CO beliefs are not a defense to charges of AWOL, missing movement, disobedience of orders, or similar offenses. There are occasions, however, when the offense was the result of the CO's refusal to use or carry a weapon, engage in combat, etc., and the CO claim can be raised as a defense. (While "get on that plane" is a legitimate order, "get on that plain with your rifle and gear" may not be if the CO has already stated his or her intention to file a claim.) Similarly, CO applicants who were threatened or physically abused after expressing CO beliefs may have a duress defense if they were in fear of immediate harm and had not received protection from the command after complaining about the problem. In either case, documentation of the situation is critical to the defense.
The Gulf War also taught us that commands and prosecutors may use the content of CO claims in disciplinary proceedings. In at least one case at Camp Lejeune, North Carolina, prosecutors tried to use a CO's explanation of why he couldn't go to the Gulf to fight as evidence that he deserted to avoid hazardous duty. Under normal circumstances, it is useful to include an explanation of any disciplinary problems in CO applications, tying them to the development of CO beliefs where appropriate. During time of war or other military action, such explanations must be made very carefully. Counselors who are not familiar with the legal concepts of desertion and similar offenses may want an attorney to review the part of CO application discussing the offense.
While working to protect COs, we must also be sure to protect counselors and attorneys from military retaliation.
During the Gulf war, there were a few incidents around the country in which the military urged CO applicants to publicly repudiate the suggestions of counselors or advice of attorneys and to say that they had been urged to engage in actions which they would otherwise have avoided. While these incidents were limited, the danger remains that attempts will be made to discredit or bring action against civilian representatives of COs.
It is essential that we obey all the ground rules of good counseling in these cases, rules we may be tempted to bypass when frantic clients with only a few days left before deployment urge us to do so. We should encourage GIs to make their own decisions about any violation of military law (the Uniform Code of Military Justice), choosing one discharge or another, or going public about their beliefs. It is also essential that GIs be told what the possible consequences of those actions are, including the possible maximum punishment for offenses with which they may be charged. For their own protection, counselors, and attorneys should keep careful notes of the things they tell clients.
We need to go on the offensive with the military and the public to establish a sympathetic view of conscientious objectors.
While the media gave us some positive portrayals of COs in the months before the Gulf War, the prevailing attitude among the public and in the military during the war was that COs were cowards or radicals. This represented a considerable shift in attitude. After the experience of the Vietnam War, many people in the United States had come to view COs as honorable people. During peacetime, many military commands had come to think of the discharge as routine, and of COs as naive but nice kids.
Counseling organizations did a good deal of work to explain conscientious objection and to build support for COs during the war. In any future conflict, we will need to do more of this work and to do it in a more concerted way. Ideally, this should be on our agenda well before the next war. Individual counselors and attorneys, regional and national counseling organizations, and peace and anti-militarism organizations can all play a role in this work. We cannot allow this work to slow when the current military crisis is resolved. Building a long-term strategy to legitimize and honor conscientious objection is an important task for the movement.
Such work must not focus on "traditional" conscientious objection alone. Support for political resisters, including resisters who will never meet CO criteria, must be made a part of that work as well. If we are consistent in promoting the idea that resistance to military aggression is honorable, we will make it more difficult for the military and the administration to isolate objectors to the next war.
About the Author
Kathleen Gilberd, based in San Diego, California, is the co-chair of the National Lawyers Guild's Military Law Task Force.
This article is excerpted from a larger memo. It is available from the Military Law Task Force for $2.50.
For More Information
Military Law Task Force
National Lawyers Guild
1168 Union, Suite 200
San Diego, CA 92101
phone: 619/233-1701
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