In another look back at antiwar sentiment among soldiers during the Vietnam War, I found this to be a striking one, found in the text of the Supreme Court decision in the case of Parker v. Levy, 417 U.S. 733 (1974).
In this case, Howard Levy, a physician and Army captain, had been convicted at court-martial for disobeying orders. Although the Supreme Court case is dated 1974, Levy's conviction was in 1967 for actions occurring in 1966. The summary of the facts in the Court's opinion upholding the conviction, written by Justice William Rehnquist, says:
The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out.
Part of the charges against him included public statements he had made critical of the Vietnam war, including this one quoted in the Court opinion:
The United States is wrong in being involved in the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.
Now, the last sentence of this statement seems to fit the conservative stereotype of war critics calling American soldiers "baby killers." Imaginative as our conservatives can be, there were war critics during the Vietnam War who occasionally made overly-broad and unjustified generalizations. As John Kenneth Galbraith wrote in the year of Levy's court-martial conviction, "Critics of the Vietnam conflict have shown a certain capacity for alienating freinds and encouraging opposition." (How to Get Out of Vietnam, 1967)
But in fairness to Levy, footnote 5 in the decision explains that his quotation is from the court martial charges, which follows the quote with "or words to that effect." So if he had said, for instance, "Special Forces are assigned to deceive the villagers and wind up taking their property and killing peasants, including women and children, and that's not what American forces should be doing," that might have been considered "or words to that effect," though the implied accusation against the individuals so assingned would have been absent.
I don't know any more biographical details about Levy other than what I read in the Supreme Court case. So I don't know what his point of reference was in making such statements, or what his political and religious affiliations were, or how consistent his actions in other areas of his life, or later in life, may have been in the stand he took in 1966. In the statement quoted, he certainly seems to have been significantly influenced by the civil rights movement of the time.
I provide the quotation here as another reality-check on what the anti-Vietnam War movement was about. It's worth noting that his man was a soldier, and was willing in 1966 to risk court-martial to take a stand on principle that was critical of the war , however quixotic it may look now.
The antiwar movement was influenced heavily from the start by the stands of veterans. Levy's case is a reminder that as early as 1966, views highly critical of the Vietnam War or particular aspects of it were by no means unknown among soldiers.
Justice William Douglas, probably the Court's most liberal justice at the time and particularly hardline in defense of freedom of speech, dissented in the case, saying:
The power to draft an army includes, of course, the power to curtail considerably the "liberty" of the people who make it up. But Congress in these articles has not undertaken to cross the forbidden First Amendment line. Making a speech or comment on one of the most important and controversial public issues of the past two decades cannot by any stretch of dictionary meaning be included in "disorders and neglects to the prejudice of good order and discipline in the armed forces." Nor can what Captain Levy said possibly be "conduct of a nature to bring discredit upon the armed forces." He was uttering his own belief - an article of faith that he sincerely held. This was no mere ploy to perform a "subversive" act. Many others who loved their country shared his views. They were not saboteurs. Uttering one's beliefs is sacrosanct under the First Amendment. Punishing the utterances is an "abridgment" of speech in the constitutional sense.
Douglas also joined Justices Stewart and Brennan in a dissent written by Stewart. Arguing that the military statutes under which they had been convicted were too vague and referencing previous case law, Stewar wrote:
It might well have been true in 1858 or even 1902 that those in the Armed Services knew, through a combination of military custom and instinct, what sorts of acts fell within the purview of the general articles. But times have surely changed. Throughout much of this country's early history, the standing army and navy numbered in the hundreds. The cadre was small, professional, and voluntary. The military was a unique society, isolated from the mainstream of civilian life, and it is at least plausible to suppose that the volunteer in that era understood what conduct was prohibited by the general articles.
It is obvious that the Army into which Dr. Levy entered was far different. It was part of a military establishment whose members numbered in the millions, a large percentage of whom were conscripts or draft-induced volunteers, with no prior military experience and little expectation of remaining beyond their initial period of obligation. Levy was precisely such an individual, a draft-induced volunteer whose military indoctrination was minimal, at best. To presume that he and others like him who served during the Vietnam era were so imbued with the ancient traditions of the military as to comprehend the arcane meaning of the general articles is to engage in an act of judicial fantasy. In my view, we do a grave disservice to citizen soldiers in subjecting them to the uncertain regime of Arts. 133 and 134 simply because these provisions did not offend the sensibilities of the federal judiciary in a wholly different period of our history.
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