Tulsa Law Review

Volume 55 Issue 1

Fall 2019

The Curious Court-Martial of Henry Howe

Jeremy S. Weber

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Part of the Law Commons

Recommended Citation Jeremy S. Weber, The Curious Court-Martial of Henry Howe, 55 Tulsa L. Rev. 109 (2019).

Available at: https://digitalcommons.law.utulsa.edu/tlr/vol55/iss1/17

This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. 41647-tul_55-1 Sheet No. 58 Side A 09/18/2019 11:37:45          ORKS Brad Brad ´ F s Corps, s Corps, ¶ RAND RAND , G 1997 Grand Forks Edition ’ Come hell and high water. high and hell Come ³ ...... 124 ...... * s 52,500 residents to evacuate, while eighty- while evacuate, to residents s 52,500 OWE ¶ , https://www.fema.gov/1997-grand-forks-flood- .H the U.S. Government. The author is grateful toMr. Come Hell and High Water ‘ GENCY 109 109 TATES V .A S s Iconic s Iconic NTRODUCTION ’ GMT , to famously run the headline, headline, the run famously to , M I. I NITED NITED U Jeremy S. Weber Jeremy ...... 110 MERGENCY ) 9/17/2019 ) 2:11 PM ...... 122 realize that more than fifty years ago, his seemingly innocuous seemingly ago, his realize fifty than years that more .E MPACT OF OF MPACT OWE IFE ED I ² ELETE 1 L Grand Forks Herald D s homes and sixty-two percent of its commercial buildings were damaged. In the midst midst the In damaged. were buildings commercial its of percent sixty-two and s homes .H , F ¶ OT ...... 109 ...... N ...... 129 ...... The Story Behind the the Herald Behind Story The O TATES V TATES ILITARY ILITARY s own and do not necessarily represent the views of the Air Force Judge Advocate General Advocate Judge Force Air the of views the represent necessarily not do and s own S ¶ ONTINUING ONTINUING -M best known for the nearby Air Force base and the 1997 Red River flood that that flood River Red 1997 the and base Force the Air for nearby known best C A. The Protest ...... 110 A. The ...... Protest B. The Court-Martial114 ...... C. The Aftermath118 ...... D. The119 Appeal ...... (N.D.) (Apr. 21, 2017), http://www.grandforksherald.com/news/4254469-story-behind-heralds-iconic- 2017), 21, (Apr. (N.D.) In a brick office building originally built thefor government, at the intersection ² HE ,J-FINAL(D OST M K NITED NITED ONCLUSION NTRODUCTION U C Y EBER ERALD Colonel Jeremy S. Weber (M.A. and M. Strategic Studies, Air University; J.D., Case Western Reserve Reserve Western Case J.D., University; Air Studies, Strategic M. and (M.A. S. Weber Jeremy Colonel THE CURIOUS COURT-MARTIAL OF HENRY HOWE HOWE OF HENRY COURT-MARTIAL CURIOUS THE Elliot Schlossman, Schlossman, Elliot of two main two of streetsmain in the Northern Plains town Grand of Forks, North Dakota, sits justice. of themilitary history in fascinating the these Hismost figures of renown one as a small-firmdays rests on attorney largely the local level. people in Few Grand Forks towndevastated the H * V. C III. P IV. T II. W Vietnam War protest resulted in one of the the famousmost of resulted War protest one in Vietnam courts-martial in American history. Yet the court-martial of Henry H. Howe, Jr., now in his mid-seventies, has come-hell-and-high-water-edition. The author served at Grand Forks Air Force Base during the flood and and flood the during Base Force Air Forks at Grand served author The come-hell-and-high-water-edition. participated inhumanitarian relief efforts there. Henry H. Howe, Jr., for his generosity in sharing his experiences during a telephone interview. interview. telephone a during his experiences sharing in generosity his for Jr., Howe, H. Henry 1. city the of percent ninety caused flood Forks Grand The of the flooding,a fire broke outthat damaged eleven historic buildings andsixty apartments. the United States Air Force, the Department of Defense, or three percent of the city Flood By the Numbers University)is anactive duty judge advocate inthe United States Air Force. The views represented in this article are the author I. I numbers (last visited Aug. 1, 2018). The image of downtown burning while surrounded by flood water prompted prompted water flood by surrounded while burning downtown of image The 2018). 1, Aug. visited (last numbers the newspaper, local the 41647-tul_55-1 Sheet No. 58 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 58 41647-tul_55-1 41647-tul_55-1 Sheet No. 58 Side B 09/18/2019 11:37:45 , 4 M K IMES The The T 9 C Y Conduct Conduct “ ZHDV³D RMY , A s father worked asa ¶ XQWFKDUDFWHUL]HG  )LUVW $PHQGPHQW¶V was transferredwas to the ² , Jan. 11, 1966, at B5. OST And Then in Law School – [Vol. 55:109 55:109 [Vol. -P OWE , Nov. 10,1965,at 1; John Rechy, .H ERALD , Feb. 21, 1966,at 207. OST H -P Howe graduated from the University of theUniversity graduated of Howe from ASO ASO 8 ATION 5 P TATES V TATES N L S ERALD He entered the immediately Army after HE , E H 6 . 1189,1199 (1986). , T EV ASO ASO NITED NITED P U Officer L. R ’ L TULSA LAW REVIEW LAW TULSA II. , E the court-martial of Lieutenant Henry Howe remains a 2 Anti-War ) 9/17/2019) 2:11 PM ‘ IDFHG\RXQJPDQ´ , 33 , 33 UCLA - Article 88 of the Uniform Code of Military Justice: A Military Muzzle or Just a a Just or Muzzle A Military Justice: Military of Code Uniform the of 88 Article ELETE 946 (2018). D ± Dissent Landed Vietnam Protestor in Prison Prison in Protestor Vietnam Landed Dissent took a job in the astronomy program at the University of Colorado. of University the at program astronomy the a job in took OT s magnetic field and accompanied Admiral Byrd on his 1946 to 1947 Antarctic expedition. expedition. Antarctic 1947 to 1946 his on Byrd Admiral accompanied and field magnetic s ¶ N ² O Lieutenant on the Peace Line Peace the on Lieutenant .” , 37 C.M.R. at 433. 433. at C.M.R. 37 , , 37 C.M.R. at 433. 433. at C.M.R. 37 , Today, at the age of seventy-five, a of figure, the age at Howe remains a fascinating Today, 3 a scientist thewith Coast and Geodetic Service $QHZVSDSHUDUWLFOHLQ1RYHPEHUGHVFULEHGWKHXQPDUULHG+R 7 ² Howe grew up in Virginia but moved to Colorado in eighth grade when his his when grade eighth in Colorado to moved but Virginia in up grew Howe Nearly seventy years into existence of the history of the Uniform Code of of Code Uniform the of history the of existence into years seventy Nearly E-mail from Henry H. Howe, Jr. to Jeremy (on Weber file with author). Howe By late 1965, the first stirrings of public opposition to the Vietnam War Vietnam the to opposition public of stirrings 1965, first the late By ,J-FINAL(D . . Howe . Howe . Charges Faces Marcher Bliss 4 9 7 8 Parents Hope for Bond for for Bond for Hope Parents ; EBER Id. father A. The Protest scientist on the Earth the scientist on Upper Ionispheric Research eventually Program in Boulder, theheading computer astronomyalso teaching there and division United States at the andnavigation Air Force Academy 6. Kelly Kennedy, Kennedy, Kelly Interview]. Howe 5. 6. [hereinafter 2017) 27, (June Jr. Howe, H. Henry with Interview Telephone personality truly of worthy his place in military history.

2. 801 §§ 10 U.S.C. application to military members, and cautionary a tale for military members not to towardexpress contempt a United States President. 0LOLWDU\-XVWLFH ³8&0-´  OHIW D OHJDF\ HVWDEOLVKLQJ D SUHFHGHQW DERXW WKH OLPLWV RI WKH 110 110 W Unbecoming. . In an interview thisfor article, recalled Howe how his father stoked his interest in political and scientific issues, taking the junior Howe to Democratic conventions as imparting his pacifist and views. a child VWXGLRXVDSSHDULQJ\RXQJPDQZHDULQJJODVVHV´DQGDODWHUDFFR KLPDVD³WKLQVHULRXV Colorado at Boulder a degreewith in political science, having completed the Reserve 2IILFHUV¶ 7UDLQLQJ &RUSV SURJUDP Jan. 16, 2006,at10; United StatesHowe, v. 37 C.M.R. 429,433 (C.M.A. 1967). truly truly unique case. Howe to remains this day the only military member convicted of President the against contemptuous words using for UCMJ the 88 of Article violating the Unitedof States, hisconviction a result ofhis participation in an antiwar protest 1965. in graduation, and by 1965, he was an Army Reserve Second Lieutenant about a year about Lieutenant Second Reserve an Army 1965, he by and was graduation, into an active duty tour the 31stwith Engineer Battalion at Fort Bliss in El Paso, Texas. emerged. On November 6, 1965, this anti-war sentiment hit the Texas border town border town Texas anti-warthe hit 6, 1965, this November On sentiment emerged. El Paso, atof least on a small scale. of protestorsgroup A the from local Texas Vietnam. in policy to demonstrate planned American against College Western Restraint on Military Muscle? on Military Restraint 3. Aldrich, W. Richard 41647-tul_55-1 Sheet No. 58 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 58 41647-tul_55-1 41647-tul_55-1 Sheet No. 59 Side A 09/18/2019 11:37:45 , 13 OST 15 -P seething seething which , Nov. 2, ³ 79 (1970). Military OXWLRQ 12 ± OST ERALD -inspired -inspired H -P 178 but also but FDO UDGLR DQG ´ ASO USIC P 111 111 ERALD M L H , E ASO ASO P A sizable pro-war L 17 USIC IS TO IS USIC , E only served to draw more more draw to served only M GDPQLQJ³&RPPXQLVW generally tolerant city tolerant generally ³ , Robert painted Sherrill a vivid HUERZHGWR³SUHVVXUH´ ILITARY ILITARY M USTICE AS AS USTICE J In the end, the City Attorney advised the In the end, the the advised Attorney City El PasoansStage VietNam Protest 14 USTICE IS TO USTICE IS J 06 (characterizing El Paso as a a as Paso El (characterizing 06 ± However, the Council lat ) 9/17/2019) 2:11 PM 11 ILITARY ILITARY A group of professors and students from the college had asked asked had college the and from students professors of group A ELETE , M 10 D WHG³VWDQGDJDLQVW&RPPXQLVP´7KH&LYLWDQV&OXEDGRSWHGDUHVR Texas Western Professor Backs Right to Speak Out Speak to Right Backs Professor Western Texas OT note8, at 205 note 8, at 205. 205. at 8, note note 8, at 206. 206. at 8, note N THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF O HERRILL , 37 C.M.R. at 432. S supra supra 16 supra supra supra supra , 37 C.M.R. at432; Marshall Hail, , 37 C.M.R. at 433. 433. at C.M.R. 37 , ). ). ´ Howe ; OBERT Rechy, The demonstration appears to have been a spectacle. Estimates onlookers appears to have The of demonstration Despite the protest, El Pasoanti-war of a hotbed hardly was activity. In his Howe ,J-FINAL(D &LW\&RXQFLO¶VDWWHPSWVWREORFNWKHGHPRQVWUDWLRQ M K . Id. . Id. . Howe To understand what happened to Howe, one must understand a little about El Paso. Because about El understand a little must one Howe, to happened what understand To of its location Mexican on the border because and many depended years for so it has on payrolls share a large for as trashy military its income, El Paso of and is probably as stationdope prostitutes, for way is a as any It characterless country. in this a city major smugglers and other border Commerce, types. Its Chamber of with an on eye the nearby war band of little So the bases, when hyper-patriotism. is drivenof a kindmilitary by The pronounced. was community the from response the march, to permit a sought protestors Commerce suggested the of prominentlyJuniorPasoans flag Chamber thatAmerican fly El uni theirto show demandingprofessors that the local at college who sympathized with students the be ³VLOHQFHG´/HWWHUVSRXUHGLQWRERWKRIWKHFLW\¶VQHZVSDSHUV EHDWQLNV´ C Y 10 12 17 EBER apparently came in the form of a press conference called by an called a presscame an the in assistant conference by apparently of atform professor college a (a the and threatenedformer suit against officer) Force Air the Council.

the El Pasothe El City Council for permission to hold demonstration. a The Council refused at the natureunpatriotic disdain expressing alderman an the and with mayor at first, anti-war protest. an of 2019] 2019] W 11. Rechy, Rechy, 11. protest had generated significant controversy in the weeks leading up to it and had ³FRQVXPHG PXFK VSDFH LQ WKH ORFDO SUHVVWHOHYLVLRQVWDWLRQV´ DQG LQ EURDGFDVWV RQ OR But see see But The The 16. R 16. Council that no permission was necessary at all, but by that point the protestors added protestors the point that by but at all, necessary was permission no that Council initialthe denial of its as anotherfree the demonstration.speech rights of focus attention to the otherwise unremarkable gathering. Counter-movements by local civic the heading professor assistant and the up, sprang protestors the oppose to groups protection for after policeman a campus assigned was demonstration planned calls phone threatening were made. 1965, at 1. Rechy, 14. 15. Nov. 6, 1965, at 1. UDQJHG IURP ³KXQGUHGV´ RI SHRSOH WR DERXW  classic 1969 critique of 1969 critique of classic the justice military system, the famously-named Justice is to Justice as Military Musicis to Music picture of the buildup to the demonstration: 13. Charles Horky, Horky, Charles 13. with apathy 41647-tul_55-1 Sheet No. 59 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 59 41647-tul_55-1 41647-tul_55-1 Sheet No. 59 Side B 09/18/2019 11:37:45 , 23 M K C Y ¶6)$&,67 Based on his his on Based 26 In fact, a Texas a Texas fact, In Howe had simply simply had Howe 24 SROLFHFKDVHGDZD\ HULFD¶VLQYROYHPHQW HILQJOHGKLPWRWKH 25 El Paso Herald-Post Protests Demonstration as Childish as Demonstration Protests [Vol. 55:109 55:109 [Vol. o aid the civilian police concerning 29 Howe was not on duty and wore civilian civilian wore and duty on not was Howe 27 The local newspaper reported that onlookers The onlookers newspaperlocal that reported ., Dec. 23, 1965, at 3. 3. at 1965, 23, ., Dec. 18 RIB Jim Bryman Jr., Editorial, Editorial, Jr., Bryman Jim ´ .T Despite commotion,\ the the protest seemedto note 8, at A6. A6. at 8, note HI El Paso police were out in force, supplemented by by supplemented force, in out were police Paso El 19 The demonstration itself lasted only half an hour. , C TULSA LAW REVIEW LAW TULSA 21 22 supra supra , ) 9/17/2019) 2:11 PM note 5. Howe stated that to his surprise, no one seemed to pay much attention to to attention much pay to seemed one no surprise, his to that stated 5. Howe note a position he said he actually shared soldierswith when he :KLOH³FDWFDOOVDQGFRPPHQWV´IOHZEHWZHHQWKHWZRJURXSV VLF@,19,(71$0´ ² ELETE D supra supra note 16, at 179. 179. 16, at note 20 , Nov. 10, 1965,at B2. note 3, at 1199. OT N OST note 17, at 1. 1. at 17, note O supra -P , supra supra , 37 C.M.R.at 432. different A account was providedby a letter theto localnewspaper, which , 37 C.M.R. at 433. 433. at C.M.R. 37 , , 37 C.M.R. at 433. 433. at , 37 C.M.R. , 37 C.M.R. at 432. 432. at C.M.R. 37 , , 37 C.M.R. at 432. 432. at C.M.R. 37 , supra supra A newspaper report shortly after the demonstration noted that spectators spectators that noted demonstration after the report shortly newspaper A ERALD 28 H HERRILL In a recent In Howeinterview, explained his reason joiningfor the protest. He In the interview article,In this for Howe stated believed actions he his in were Lieutenant Lieutenant Howe notwas of the collegea member group that staged the ,J-FINAL(D . Id. . Howe . Howe . Howe . OfficerSentenced for Viet Protest . Howe . Howe . Charges Faces Marcher Bliss ASO ASO P 20 21 27 24 25 22 18 29 EBER L was on the outskirts of becomingmob a riot. E blamed both the protestors and the counter-demonstrators for behaving themselves poorly, alleging that the event event the that alleging poorly, themselves behaving for counter-demonstrators the and protestors the both blamed ³ did not notice Howe was a military member. PLOLWDU\SROLFHIURP)RUW%OLVVZKRZHUHWKHUH³W any military personnel in uniform that might be involved in the demonstration by UHWXUQLQJWKHPWR)RUW%OLVV´ 26. Howe Interview, Interview, Howe 26. views. War anti-Vietnam developing his notice to not seemed and briefings his of content the generate, the protest itself appears to have been quite small; the at the number pegged others twenty-five about at demonstrators while the numbered a dozen. closer to clothes. 28. Aldrich, Aldrich, 28. read about the demonstration in the newspaper and decided to join it. join decided to and newspaper the in demonstration the read about became the of convinced he the or so in stated that during immoralityArmy his year and Vietnam ofwrongness the War. after arose This assigned to brief belief he was VROGLHUVRQD3HQWDJRQ³ZKLWHSDSHU´WRXWLQJWKHUHDVRQVZK\$P LQ9LHWQDPZDVMXVW+RZH¶VUHVHDUFKLQSUHSDUDWLRQIRUWKHEUL conclusion opposite

23. S 23. counterdemonstration also also counterdemonstration place. took 112 112 W the protest remainedthe peaceful. Western professor who led the demonstration later testified that he did not know know did not that he testified later demonstration led the who professor Western the protest. planning in involved Howe not was that and Howe 19. Hail, Hail, 19. VKRXWHGMHHUVVXFKDV³VLF@LQ´WKHRWKHUVWDWHG³(1'-2+1621 7+$1 $ µ&+2,&(¶ AGRESSION[sic] [ %(7:((1 3(77< demonstration and apparently had no connection to the group. to connection no had apparently and demonstration conducted the required briefings, with no adverse consequences. 41647-tul_55-1 Sheet No. 59 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 59 41647-tul_55-1 41647-tul_55-1 Sheet No. 60 Side A 09/18/2019 11:37:45 A supra supra supra 35 32 fficials Hail, \ R G WR DVN IRU WKH\GHFLGHG , Dec. 23, 1965, at 2. 2. at 23, 1965, , Dec. 113 113 ¶ 46.1 (Oct.27,1965) KHUVXEMHFWV´DQG Howe was the only only the was Howe WDWLRQDWWHQGDQWZKR Another view about about view Another 36 AZETTE 34 , Dec. 21, 1965, at 1. at 1965, 21, , Dec. G ROCEDURE OST OST OST P P -P 80. Howe refuted this account in his his in account this refuted Howe 80. The policeman also testified ± 33 ERALD H s military identification card was found in in found was card identification military s ¶ OLICY AND OLICY AND ± ITTSBURGH ITTSBURGH P ASO ASO , P P L note 16, at 179 at 16, note 31 With his handmade cardboard sign in the the in sign cardboard handmade his With , E note 16, at 180 (the arresting(the civilianpolice 180 officers at 16, note 37 OMMAND OMMAND C supra supra A review of Army regulations in effect at the the at effect in regulations Army of review A supra , note 5. 5. note , 30 RMY supra supra HERRILL HERRILL .600-20,A QSROLFHDUUHVW+RZHIRU³YDJUDQF\´ EG ) 9/17/2019) 2:11 PM note 5. 5. note note 5. 5. note ,R ELETE D supra supra supra supra RMY note 6, at 10; S 10; at 6, note note 6, at 10; 10; S at 6, note A Case Built Up AgainstLieutenant OT note 8, at 207. It wasIt reported207. at 8, that note Howe N THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF O supra supra supra T OF ¶ Army Officer Sentenced for Viet War Protest War Viet for Sentenced Officer Army supra supra EP , 37 C.M.R. 429, 433 (C.M.A. 1967). 1967). 429, (C.M.A. 433 , 37 C.M.R. D 5HJDUGOHVVRIKRZPLOLWDU\SROLFHEHFDPHDZDUHRI+RZH¶VVWDWXV 'HVSLWH +RZH¶V DSSDUHQW FRPSOLDQFH ZLWK WKH UHJXODWLRQ PLOLWDU ,J-FINAL(D M K . Howe 46.1 Participation in public demonstrations. Participation in picket lines or any other public public other any lines or picket demonstrations. Participationin in public Participation46.1 demonstrations, sanction imply includingArmy those to pertaining may the civil rights, of the of members Army, participation by Such demonstrationis conducted. the which cause for is prohibited authority, competent by not sanctioned a. During the hours they are requiredduty.be present to hoursa. During for the they are inb. uniform. When they are onc. When they reservation. a military are in country. a foreign they d. When e. When their a breach constitute activities and order. law of to result. likely When violence is reasonably f. C Y 33 EBER one of his shoes after he would not produce his identification for officers who stopped him. stopped who officers for identification his produce not would he after shoes his of one reportedly told Howe they actingwere a on request from the military police). Rechy, 37. KRZ+RZH¶VPLOLWDU\DIILOLDWLRQZDVGLVFRYHUHGLQYROYHVDJDVV DOOHJHGO\ VDZ D PLOLWDU\ VWLFNHU police. the called supposedly then LQ attendant the the demonstration; to directions +RZH¶V FDU ZKHQ +RZH VWRSSH protest participant whom police stopped. police whom participant protest The available details this of event supply no reason to believe any of these conditions ZDVLPSOLFDWHGE\+RZH¶VDFWLRQV note 34, at A8; A8; at 34, note 35. Kennedy, Kennedy, 35. military policeman on the scene testifiedlater in legal proceedings that recognized he ³WKUHHRUIRXURWKHUVHUYLFHPHQ´DWWKHGHPRQVWUDWLRQ 30. Howe Interview, Interview, Howe 30. 31. U.S. 31. 2019] 2019] W time seems to support his position. Army position. Regulationhis seemssupport to time 600-20, been just had which stated: demonstration, the before days updated complianceregulations. Army with WKDWKHKDGWDONHGZLWK+RZHEHIRUHWKHGHPRQVWUDWLRQDERXW³RW learned he was a military member through this conversation. small El Paso demonstration, Howe became the first known military member to Howe disputed this, stating he did not have his military identification card on him, and military officials officials military and him, on card identification military have his not did he stating this, disputed Howe Interview, Howe him. of recognition personal their on solely based him of custody take to decided 5. note [hereinafter 600-20]. AR Interview, Howe 32. 34. Marshall Hail, Hail, Marshall 34. toact. Likely recognizing their jurisdiction over this off-base matter was limited, military police had civilia responded promptly. It is not clear how military policemen on the scene recognized Howe; Howe recounted in his interview that military intelligence officials present at demonstrationthe recognized him from their previous interactions him. with interview for this article. Howe Interview, Interview, Howe article. this for interview 36. Kennedy, Kennedy, 36. 41647-tul_55-1 Sheet No. 60 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 60 41647-tul_55-1 41647-tul_55-1 Sheet No. 60 Side B 09/18/2019 11:37:45 . : .L. EV M K IL WKH note 8, 8, note C Y L. R HANCE C , 22 M 44 Just four four Just supra supra , 39 , 69 , 69 A.F. EACE A EACE A P HVW s Article ’ It has frequently IVE G 45 LQW7KHDUWLFOHUHVWV in , The Devil The ²VHUYLFHPHPEHUV¶IUHH DQG³OHDYHVVROGLHUVXQDEOH [Vol. 55:109 55:109 [Vol. s court-martial defined the duties of the law law the of duties the defined s court-martial ¶ Bliss Marcher Faces Faces Marcher Charges Bliss , ch. IX, ¶ 39 (1951) [hereinafter MCM]. MCM]. , [hereinafter (1951) 39 ¶ ch. IX, ne commentator article ne the noted that has TATES S rnor or legislature of any State, Commonwealth, any State, Commonwealth, of rnor or legislature . 1697 (1968); D.B. Nichols, 38 93,95 (Melvin Small William & D. Hoover eds.,1992). EV NITED ,U .L.R 7KH³ODZRIILFHU´ WKHIRUHUXQQHUWRWRGD\¶VPLOLWDU\ advise[d] the court-martial on questions of law and procedure which TULSA LAW REVIEW LAW TULSA ³ OVEMENT ARV in effect at the time of Howe Soldiers Who Insult the President: An Uneasy Look at Article 88 of the the of 88 Article at Look An Uneasy President: the Insult Who Soldiers 40 ARTIAL M -M , 81 H ) 9/17/2019) 2:11 PM NTIWAR The GI Movementand the Responsefrom the Brass OURTS 42 HUVHUYLFHPHPEHUV¶VSHHFK$UWLFOHUHDGVDVIROORZV A ELETE C Political Speech, the Military, and the Age of Viral Communication Viral of Age the and Military, the Speech, Political D OT John G. Kester, N O IETNAM V ANUAL FOR , 37 C.M.R. at 432. 432. at C.M.R. 37 , ,Q SDUWLFXODU WKH FKDUJH RI XVLQJ ³FRQWHPSWXRXV ZRUGV´ DJDLQVW Manual for for Courts-Martial Manual M granted a defense motion to dismiss the third charge, but the Army the Army but charge, third the dismiss to motion a defense granted ´ 43 07 (2013). 41 Article 88uniquely generates controversy because it restricts military 7KH$UP\UHDFWHG³TXLFNO\DQGIRUFHIXOO\´WR+RZH¶VDFWRISURW These remaining charges represent both controversial UCMJ provisions. Both ± ,J-FINAL(D . Id. . Howe generally . See . 133/134, 88 and Articles UCMJ surrounding 111 controversies and histories the (summarizing (1963) Any commissionedAny officer who uses contemptuous againstwords President,the the Vice department, a the of the of Defense, Secretary military Secretary President, the Congress, or the of Security, Homeland Gove Secretary shall be punished as a court-martialoris on duty, possession he direct. which in may 39 42 43 EBER EV XPLORING THE XPLORING days after the demonstration, Howe faced a preliminary hearing, having been charged charged been having demonstration,hearing, after the faced a preliminary Howe days with three violations the of UCMJ: using contemptuous words against the President, disloyal of language use public and a gentleman, and officer an unbecoming conduct the among disaffection and disloyalty promote to design with States United the to populace. civilian and troops proceeded to a general court-martial general a conduct on the contemptuousproceeded to and words charges. unbecoming 71, 106 R 38. H. Terry Anderson, demonstrate againstdemonstrate the Vietnam War. 114 114 W E respectively). respectively). 44. 888. § U.S.C. 10 UCMJ; 88, Art. 45. S. Jeremy Weber, 40. 1967); (C.M.A. 432 429, 37 C.M.R. Howe, v. States United judge) ³LVWKHPRVWUHVWULFWLYHRIWKH8&0-¶VSURKLELWLRQVRQVSHHFK´ drawn criticism thosefrom who believe it fails to adequately protect military PHPEHUV¶IUHHVSHHFKULJKWV)RUH[DPSOHR Uniform Code of Military Justice Military of Code Uniform PHPEHUV¶IUHHVSHHFKULJKWVRQWKHEDVLVRIWKHVSHHFK¶VYLHZSR at the fulcrum of two competing Constitutional imperatives rightsspeech and the toneed a loyal,maintain apolitical military. B. The Court-Martial Court-Martial B. The President, codified in the UCMJ,President, codified a disputedArticleexercise 88 of represents of military authorityov have long histories in military law, but both have been criticized as overreaching and vague. at 1, A6. A6. at 1, The 41. may arise. may officer. The law officer served in largely an advisory role to the president of the court-martial (who functioned functioned (who court-martial the of president the to role an advisory in served largely officer law The officer. roughly as the equivalent foreperson of a jury with additional authority). The officer law ruled oninterlocutory all and challenges except law of questions 41647-tul_55-1 Sheet No. 60 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 60 41647-tul_55-1 41647-tul_55-1 Sheet No. 61 Side A 09/18/2019 11:37:45 54 48 .L. LPLWV AND ILITARY ILITARY ,M , 6 V Manual for Manual for Another has has Another 46 VERETT o the o the 115 115 O. E HIWW VKDYHDORQJKLVWRU\ As a part of this reform reform this a part of As UWLFOH³ZRXOGQRWEHXVHG OBINSON OBINSON 50 WKHULJKWVRIPLOLWDU\PHPEHUV the a the and the and addition the Secretary of of Homeland ´ 16 (1956). ± officer, 1 ³ TATES TATES , 81st Cong., 1st Sess. 99 (1949)). (1949)). 99 Sess. 1st Cong., 81st , S before ´ 81 (2010). ± Bills to unify, consolidate, revise, and codify the Articles of War, the the War, of Articles the codify and revise, consolidate, unify, to Bills NITED NITED However, post-World WarII reforms sought to reform The Background of the Uniform Code of Military Justice Military of Code Uniform of the Background The ¶VGUDIWLQJFRPPLWWHH WKDW U ULQZKLFKWKH\DUHIRUFHGWRSDUWLFLSDWH´ 18. 18. 49 ± 51 commissioned .L.875,880 ) 9/17/2019) 2:11 PM ³ ONST ELETE ORCES OF THE OF ORCES D Be All That You Can Be? An Analysis of and Proposed Alternative to Military Speech Speech Military to Alternative Proposed and of Analysis An Be? Can You That All Be F note 3, at 1219. OT .J.C note45, at 106 (citing note 43,1708 at Edmund Morgan, Morgan, Edmund note 43, at 1718. A N THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF ³0&0´ DQGWKHFRXUWV7KH0&0¶VGHILQLWLRQHVWDEOLVKHVVRPHO 21. P O ± 47 RMED This article generated little debate in the extensive Congressional hearings hearings extensive Congressional the This in article generated little debate supra supra A supra supra supra supra supra 52 , 12 , 12 U. The article was passed in 1950, in substantially the same form as same substantially it exists form the 1950, in today. passed Thein article was at 1720 UWLFOH¶VUHVWULFWLRQVPD\EHGLYLVLYHEXWVLPLODUSURYLVLRQ 53 A $UWLFOHGRHVQRWGHILQH³FRQWHPSWXRXVZRUGV´7KDWWDVNLVO The version of Article 88 that emerged both expanded and limited the reach expanded and limited both emerged 88 that Article of of The version ´ ,J-FINAL(D M K . Id. . See generally . 169 (1953) (describing public pressure to institute military justice reforms and Congressional response to to response .Congressional and reforms justice military institute to pressure public (describing 169 (1953) It is immaterial whether theIt is immaterial words are used in or againstofficial official the an private C Y 49 50 EBER EV USTICE IN THE IN USTICE in military law. Dating back even before the Bill of Rights, military law has prohibited use use law prohibited military has Rights, Bill of the even before back law. Dating in military contemptuous againstof Presidentthe words and other prominent officials. government often. 52. Kester, Kester, 52. 53. Weber, Weber, 53. effort, re-examinedeffort, Congress against prohibition the the contemptuous uttering words, UCMJ in 88. Article resulting the justice the to military system board, transforming fairmake across the and uniform it more commander-controlledit from a harsh, discipline system of to a system evenly that more balanced civilian principles of justice discipline.military with about the new UCMJ. new the about While Senate questions raised some the the about article as the Congress, Professor Senateof UCMJ accepted the through assurance the moved Edmund UCMJ the Morgan (chairman of 47. Aldrich, Aldrich, 47. R J 46. Sarah N. Rosen, Rosen, N. Sarah 46. Restrictions

2019] 2019] W Security to the list of officials to whom contemptuous words may not be directed. directed. be not may words contemptuous whom to officials of list the to Security to voice their criticism of a a of wa criticism their voice to that pressure). 51. For an authoritative look at the development of theuniform code, see R Courts-Martial proscription: contemptuous the words scope of the on In the days before the days before the the In UCMJ, and Navythe eachArmy itswhen had disciplinary own convicted contemptuous at courts-martial were members violating military for 114 code, the preponderance between War and World War II, with the Civil provisions of words during coming wartime. these Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and to Enact and Guard, Coast the of Laws Disciplinary the and Navy, of the Government the for Articles the of Subcomm. the Before 4080 and H.R. S. 857 on Hearings Justice: Military of Code a Uniform Establish Senate States United Services, Armed On Comm. Article UCMJ original the 54. since changes substantive only The (1950). 888 § U.S.C. 10 UCMJ; 88, Art. 88are the additionthe of word DUJXHGWKDW³>Z@KLOHWKHUHPD\EHMXVWLILFDWLRQIRUFXUWDLOLQJ in some areas, the extent to which free speech rights are impinged upon by is 88 by Article extent upon impinged are the areas, to some rights speech in free which XQZDUUDQWHG´ previous contemptuous words prohibitions. It not only expanded the list of expanded list of government the only not It contemptuous prohibitions. words previous commissioned it also the to applied, prohibitions only but officials prohibited whom underfell longer the enlisted no members contemptuous words; using from officers prohibition. 48. Kester, Kester, 48. 41647-tul_55-1 Sheet No. 61 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 61 41647-tul_55-1 41647-tul_55-1 Sheet No. 61 Side B 09/18/2019 11:37:45 or M K ]. ]. C Y decide. decide. -martial GUDZLQJ´ O\ SULYDWH - ENCHBOOK RU RWKHUZLVH ., 7. 1, at 1999 July WKH FRXUWV WR QH RI WKH RIILFLDOV DERXW ³OLQH AW L HVVLRQVRIRSLQLRQPDGH . 2 (Dec. 1998). GFLUFXODWLRQWRDZULWWHQ PD\ SXW D FDVH RYHU WKH LDO¶VSROLFLHVWRDSHUVRQDO ROC RMY 0LOLWDU\-XGJHV¶%HQFKERRN GLVFXVVLRQ´WKRXJKWKHUHDFK .P , A defines the defines asterm follows: v (2014) [hereinafter B [hereinafter (2014) v NST 59 I [Vol. 55:109 55:109 [Vol. ¶VUHDFK+RZH¶VFRXUW AVAL AVAL LQWKHSUHVHQFHRIPLOLWDU\VXERUGLQDWHV´ ENCHBOOK B ¶ a safe harbor any for service member who uses , 124 U. S. N UDGES J 55 58 TULSA LAW REVIEW LAW TULSA ILITARY In the opinion of one the opinion of In military lawyer, any defensesuch is ). The Benchbook is a Department of the Army publication, and the foreword foreword the and publication, Army Benchbook The the of ). Department is a 57 ´ 27-9, M 27-9, ) 9/17/2019) 2:11 PM Contemptuous Speech Against the President the Against Speech Contemptuous note 59,at ¶ 3-12-1(d). ELETE Free Speech v. Article 88 Article v. Speech Free D nonbinding AMPHLET ³ OT While helpful, the Benchbook the While helpful, does cite definition not a primary source, note 45, at 107. supra P N note 41,note at 12 (2016). ¶ IV, pt. , 60 O The former is protected, while the latter is subject to criminal sanction. The sanction. the The latter is subject to criminal while is protected, The former RMY 56 supra supra supra A United States v. Hopkins, 56 M.J. 393, 394 (C.A.A.F. 2002) (referring to the guidance in the Military Military the in guidance the to (referring 2002) (C.A.A.F. 394 393, M.J. 56 Hopkins, v. States United ENCHBOOK Benchbook as 7KH H[DFW UHDFK RI WKH DUWLFOH UHPDLQV XQFOHDU :KDW LV D ³SXUH B Regardless of any lack of clarity about about Article of clarity any lack of Regardless 61 ¶ ,J-FINAL(D . Id. T OF THE . See . See . [T]he political discussion defense will fail as fail will defense discussion political [T]he capacity. If not personally contemptuous, adverse criticism of one of the officials or officials the of oneof criticism contemptuous, adverse not personally capacity.If namedlegislatures in in political a discussion, course article the of the even though expressed,emphatically not may be chargedas a violation the Similarly, article. of be ordinarily not should conversation private purely a in made opinion of expressions words contemptuous containing publication written to a circulation broad Giving charged. thisof kindpresence the subordinates, in of military the aggravates offense. truthThe or of the immaterial. is statements falsity words contemptuous utteredon even theirheated debate in if face, political and the even if accused did notbe contemptuous.to personally intend words the Further, unless official the offensive treat the severable, will the clearly are official courts andpersonal capacities the of ZRUGVDVSHUVRQDOO\FRQWHPSWXRXV´ ¶ 57 59 60 EBER EP 61. Fidell, R. Eugene and even if it is considered authoritative, it hardly provides a bright line for determining determining for line a bright provides it hardly authoritative, it is considered and even if ZKDWVSHHFKFURVVHVRYHUIURPSHUPLVVLEOHFULWLFLVPRIDQRIILF on Military attack members the person. and contemptuous are at the to guess exact left SDUDPHWHUV RI WKH SURYLVLRQ¶V FRYHUDJH $UWLFOH  UHPDLQV DOO OHJLVODWXUHVQDPHGLQWKHDUWLFOHLQWKHFRXUVHRIDSROLWLFDO such a defenseof is unclear. 0&0 DOVR UDLVHV D SRWHQWLDO GHIHQVH IRU ³DGYHUVH FULWLFLVP RI R likely to fail:likely 56. Weber, Weber, 56. Davidson, J. Michael 58. 55. MCM, 55. 7KXVWKH0&0VHWVXSDGLVWLQFWLRQEHWZHHQWZRH[WUHPHV³H[SU 116 116 LQDSXUHO\SULYDWHFRQYHUVDWLRQ´RQRQHVLGHDQG³JLYLQJEURD . . . containing contemptuous words publication W on the other. the on Judges ³µ&RQWHPSWXRXV¶ PHDQV LQVXOWLQJ disreputableness, of meanness, or a quality attributing to another disrespectfully UXGH DQGZRUWKOHVVQHVV´ GLVGDLQIXO FRQGXFW FRQYHUVDWLRQ´ RU D ³SHUVRQDOO\ FRQWHPSWXRXV´ UHPDUN LV OHIW WR ³>V@XEWOH GLIIHUHQFHV RI ODQJXDJH WRQH VHWWLQJ DQG DXGLHQFH OLQH´

to the publication notes thatitis a summary of legal authorities that should be cited rather thanthe Benchbook. D However, theHowever, is article almost never charged at a court-martial, so the courts have not had WKHRSSRUWXQLW\WRIXUWKHUGHILQHWKHUHDFKRIWKHDUWLFOH7KH a non-binding but influential source of influential of but military law, source a non-binding 41647-tul_55-1 Sheet No. 61 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 61 41647-tul_55-1 41647-tul_55-1 Sheet No. 62 Side A 09/18/2019 11:37:45 , 72  (N.M.), Dec. Dec. (N.M.), EWS EWS N 117 117 University Young Young University AILY AILY DV³DJRRGVWXGHQW D ´LQPLOLWDU\MXVWLFH GR RPPXQLVW´LQVWHDGRI QG³JHQHUDOO\IDYRUHGD GI Demonstrator Gets 2 Years CourtDenies Change Venue for , Jan. 17, 1966, at 5. at 5. , 1966, Jan. 17, 68 IMES LAMOGORDO T , A , N.Y. l of the charges on constitutional note 37, at 2. 2. 37, at note note 25, at 3. 3. at 25, note , Dec. 21, 1965, at 2; 2; at 1965, 21, , Dec. note 62, at 2A. at 2A. 62, note supra Once the case the reached Once trial, the government supra , , EWS 65 N +RZH¶VDWWRUQH\WKHQDUJXHGWKDWKLVFOLHQWZDV supra note 34, at A8. at 34, note , UN 69 S supra supra The government did not move to admit the actual 66 one Colonel, one Major, one Captain, and two First First two and Captain, Major, one one one Colonel, RUCES RUCES C 08. ² ± AS AS However, the governmentintroduced pictures of the Howe ) 9/17/2019) 2:11 PM note 5. 5. note 67 , L A.C.L.U. Will Aid Army War Critic War Army Aid Will A.C.L.U. 73 ELETE D supra supra note 41, at pt. II, 71 (2016) (detailing permissible terms of and procedures for submitting submitting for procedures and of terms permissible (detailing 41, (2016) 71 note II, pt. at Howe later recounted that his defense counsel engaged in some OT 63 leader of theA demonstration Texas from Western College testified note 8, at 207 at 8, note note 8,208; at Hail, N ., Dec. 21, 1965,at2A. +RZH¶V SDUHQWV ZHUH DOVR SUHVHQW LQ WKH FRXUWURRP IRU WKH WULDO The law officer denied that motion, after which Howe pled not guilty THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF note 34, at 1, A6. 1, A6. at 34, note note 34, at 1. 1. at 34, note 70 O M supra deliberated for only about ten minutes before convicting Howe of both both before convicting of Howe ten minutes about only for deliberated Officer Sentenced for Viet Protest Viet for Sentenced Officer ss of his actions in court. 62 A 71 but Howe insisted on pleading not guilty so that he could argue the the argue could he that so guilty not pleading on insisted Howe but ² supra supra supra supra He was sentenced to dismissal from the service, forfeiture of all pay and and pay all of forfeiture service, the from to dismissal sentenced was He 64 supra supra supra supra , Dec. 22, 1965, at at 1. 1965, 22, , Dec. MCM, 74 at 3. Several other contemporaneous accounts repeat that the members deliberated for only 10 minutes; 10 minutes; only for deliberated members the that repeat accounts contemporaneous other Several 3. at at 208; EE DESSA DESSA B A five-officerpanel +RZH¶VGHIHQVHFRXQVHOVRXJKWGLVPLVVD , O ,J-FINAL(D M K . Id. . See . See . Protest War Viet for Sentenced Officer Army . President Toward Contempt of Guilty Found Lieutenant Army . Officer for Change Venue Denies Court . Skirmishes Mark Trial Mark . Skirmishes . Id. . Id. C Y 68 64 71 62 73 72 74 EBER RESNO charges. Lieutenants 67. Rechy, Rechy, 67. Officer carrying the sign, along with a film of demonstration. the the along a film sign, with carrying

to both charges. to both appropriatene GLVFXVVLRQVWRZDUGDSOHDEDUJDLQ WHUPHGD³SUHWULDODJUHHPHQW parlance), 69. Rechy, Rechy, 69. Whitehouse, Franklin 70. 2019] 2019] W 22, 1965, at 1. at 1. 1965, 22, proceeded apace. Trial was scheduled right before Christmas 1965, less than two two than less 1965, Christmas before right Trialscheduled apace. proceeded was a citing venue, of a change for Howe moved demonstration. Paso El the after months had said he that protestors war of door critical his tacked been to cartoon newspaper ZLWKD³FDOOLQJFDUG´RIKLVZKLFKKDGEHHQDOWHUHGWRUHDG³& ³/LHXWHQDQW´ 66. Hail, Hail, 66. and accepting a pretrial agreement). pretrial a accepting and Interview, Howe 65. grounds, arguing Howe was exercising his First Amendment rights, but the law law the but rights, Amendment First his exercising Howe arguing was grounds, defense the denied motion. officer brought several witnesses against Howe, including the policemanmilitary who officer a who officers, police and military three El Paso City Howe, recognized demonstration. the observed Howe did not testify in findings, but in in findings, brief testify a not proceeding made did the sentencing he Howe statement, stating sorry, he was he remainandtohe wasArmy, willing wanted in the in Vietnam. to serve cardboard sign seized from Howe, reportedly to avoid a defense motion alleging that that alleging a motion defense avoid to reportedly Howe, from seized cardboard sign the seizure was illegal. SRSXODUDGHOHJDWHWR%R\V¶6WDWHDQGSUHVLGHQWRIWKH&RORUD 'HPRFUDWV´ LQ+RZH¶VGHIHQVHDVGLG+RZH¶VVLVWHUZKRFKDUDFWHUL]HG+RZH VWURQJ$UP\´ not guilty because he was not a member of a pacifist group a 63. Hail, Hail, 63. F however,newspaper one account stated the membersdeliberated hour. for one 41647-tul_55-1 Sheet No. 62 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 62 41647-tul_55-1 41647-tul_55-1 Sheet No. 62 Side B 09/18/2019 11:37:45 , M K The The C Y s court- ¶ 81 (Alexandria, (Alexandria, K´ apparently apparently ]. ]. However, at However, at ² ALK T 79 82 , 37 C.M.R. 429, 431 OWN ZDU Howe , T United States v. Rivera, 42 departed confinement confinement departed ´ newspaper in which he from the stockade at Fort Fort at the stockade from -year confinement sentence to confinement -year [Vol. 55:109 55:109 [Vol. Howeshowed no emotion when 75 Finding Avenues for Meaningful Clemency: In In Clemency: Meaningful for Avenues Finding Army Officer, Anit-War Marcher Anit-War Officer, Army , Jan. 29,1966, at 11; 15 (2016) (summarizing changes madein recent 78 Denver Post note 37, at 3; United States v. Howe, 37 C.M.R. 429, 429, 37 C.M.R. Howe, v. States 3; United at 37, note matters from the accused and advice from the staff staff the from advice and accused from the matters (Tucson), Dec. 26, 1965, at D6. D6. at 1965, 26, Dec. (Tucson), Boulder Camera Boulder RESS P ]. ]. supra supra TAR TAR EPORTER , S Tyler J. Sena, J. Sena, Tyler note 78, at E6. E6. at 78, note See See AILY , 14R D ITTSBURGH ITTSBURGH supra TULSA LAW REVIEW LAW TULSA Army Officer, Anti-War Marcher, May Appeal Case to Supreme Court Supreme to Case Appeal May Marcher, Anti-War Officer, Army , , P ’ 2-Year Sentence 2-Year 77 RIZONA RIZONA , A 76 80 for any reason or no reason, legal or otherwise. Vietnik ³ ) 9/17/2019) 2:11 PM ‘ note 76, at 20. 20. at 76, note a general officer referredwho the case to trial and had ² ELETE supra supra D note 16, at 184; at 184; 16, note , (Tucson), Jan.2, 1966, at E6[hereinafter OT N O supra supra TAR TAR , S )ROORZLQJWKHFRQYHQLQJDXWKRULW\¶VDFWLRQ+RZH 83 AILY AILY D HERRILL The court-martial left Howe unbowed. Three days after his conviction, Howe conviction, after his Three days Howe left unbowed. The court-martial +RZH¶V GHIHQVH DWWRUQH\ FKDUDFWHUL]HG WKH VHQWHQFH DV ³WRR KDUV ,J-FINAL(D . Harsh Too Called Officer Army U.S. Rebellious to Given Sentence 2-Year . Protest War for Viet Sentenced Officer Army . Id. Sentence . 2-Year . Marcher Anti-War Officer, Army . Army Reduces Term of of Term Reduces . Army . No Regrets Shows Officer One of the hallmarks of fascism is fascism of speech.hallmarks One the the There free of of suppression distinction is a clear obey to refused never have I a citizen. of and rights the the to military responsibility between I believe I hand, other the On so. do to ordered if Vietnam to go would I order. Army an citizen. a as opinions my express to right the have [I am] not sorry for the actions I took in El Paso on Nov. 6. I still feel the same way about about way same the feel still I 6. Nov. on Paso El in took I actions the for sorry not am] [I in the Yetuniform man I feel are in Nam. policy Viet following we and the President Johnson to a stand and he take knows country on situations his to service has his the responsibility benotbest in theirto interest. 76 75 80 81 79 83 77 EBER RIZONA RIZONA 433 (C.M.A. 1967). 1967). (C.M.A. 433 conducted a telephone interview withthe C. The Aftermath said: the verdict was rendered. verdictthe was convening authority authority to approve the results of the court-martial or grant clemency Bliss, Howe told a reporter: +RZHFDOOHGIRUWKHFRXQWU\WREH³UHXQLILHG´WRZDUGHQGLQJWKH allowances, and two years in prison at hard labor. hard at prison in years two and allowances, Several days later, in an interview with the 118 118 W 78. S 78. that point, the interview ended when confinement officials discovered Howe Howe was confinement discovered ended officials when interview the point, that a reporter. speaking with judge advocate, andthentakes actiononthecase. Art. 60, UCMJ; 10 U.S.C.860. § the Attime of Howe 82. 822. § U.S.C. 10 UCMJ; 22, clemency Art. trial. to case receives the refers commander same commander that a senior trial, court-martial, a general Following In in the to accused clemency grant to discretion unfettered had authority convening that recently, until and martial either findings or the sentence C.M.R. 198, 199 (C.M.A. 1970). In recent years Congress has dramatically limited the authority of convening convening of authority the limited has dramatically Congress years recent In 1970). (C.M.A. 199 198, C.M.R. cases. certain in clemency grant to authorities agreed. A little agreed. A thanmore a month after the trial, General George Powers, the FRPPDQGLQJRIILFHUDW)RUW%OLVVUHGXFHG+RZH¶VWZR one year. one the Aftermath of the 2014 and 2015 NDAAs National Defense Authorization Acts in this area). area). this in Acts Authorization Defense National La.), Dec. 23, 1965,at20[hereinafter (C.M.A. 1967). 1967). (C.M.A. A 41647-tul_55-1 Sheet No. 62 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 62 41647-tul_55-1 41647-tul_55-1 Sheet No. 63 Side A 09/18/2019 11:37:45 85 LQGHG UP RI , Feb. 1, 1, , Feb. Anti-War K´ IURP OST H¶VODZ\HUV -P The District 87 Lt. Howe Gets New ccess to severalccess to 119 119 ERALD note 5. 5. note H FDVH DXWRPDWLFDOO\ GD DEHDVSHWLWLRQZDV However, However, Defense 88 ASO ASO supra supra +RZH¶VFRQYLFWLRQ P L (Shreveport, La.), Mar. 12,1966, DVHG , E arising from a letter critical of of critical letter a from arising J., Mar. 27, 1966, at 1; at 1; 1966, 27, J., Mar. IMES , T , Feb.1966, 5, at 11B; f answeringf letters fromfollowers , Jan. 27, 1966, at at 1. , 1966, Jan. 27, note 89, at 1. 1. at 89, note EWS ., Sept. 2, 1966, (additionally,4-A at Howe later LBUQUERQUE OST -N M -P A , A supra supra , ERALD Rocky Mountain News Mountain Rocky EPORTER , Apr. 14, 1966, at 17. In his interview for this article, Howe Howe article, this for interview his In 17. at 1966, 14, , Apr. 84 DESSA DESSA H R , O note 78, at E6. E6. at 78, note IMES ASO ASO -T P L BILENE BILENE supra , , E LOBE , A Government lawyers responded by providing pictures pictures providing responded by lawyers Government (Colorado Springs,Colo.), Feb. 8,1966, 10B. at G 86 89 While Howe did not speak, his father did. However, the the However, did. father his speak, did not Howe While Peace Case Bail Denied Lieutenant Denied Bail Case Peace 91 ) 9/17/2019) 2:11 PM AZETTE MARILLO MARILLO .G ELETE Howe Permitted to Keep Books Commie Flavored Commie Books Keep to Permitted Howe , A D KLY OT note 8, at 204. 204. at 8, note note 8, at 204; 204; 8, at note N THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF , W O However, Howe did not find similarly receptive crowds everywhere. receptive similarly crowds everywhere. Howe However, find did not HDVDWWDFNRQKLVFRQYLFWLRQLQ'LVWULFW&RXUWWXUQHGDZD\+RZ 90 supra supra supra supra 92 PaperNamed in Libel Suit by Soldier ; +RZH¶V SHWLWLRQ IRU KDEHDV FRUSXV JHQHUDWHG VXSSRUW DPRQJ OLNHP Army Officer, Anti-War Marcher Anti-War Officer, Army His hab +RZH¶V WHDP FRQWLQXHG WR ZRUN RQ KLV EHKDOI DV KH VHUYHG KLV WH ,J-FINAL(D M K . Demonstrations Coast-to-Coast Stage Thousands . Thousands Stage Coast-to-Coast Demonstrations Coast-to-Coast Stage . Thousands . Penitentiary to Taken is Officer . Officer for Protest Plan Students . Id. C Y 84 91 89 90 92 EBER Quarters in Kansas in Quarters Communist-themed books, a fact that caused a stir in the local press. local the in a stir caused that a fact books, Communist-themed RI+RZH¶VFRQILQHPHQWFRQGLWLRQVVKRZLQJKHKDGDWHOHYLVLRQDQ 87. Loretta Overton, Overton, Loretta 87. 86. Rechy, Rechy, 86. 85. 2019] 2019] W Court ultimately denied the petition after General Powers testified that Howe was ³QRWILWWREHDQRIILFHU´DQGWKXVZDVQRWHQWLWOHGWREHUHOH students at Texas Western College. groupA of students fromthe college GHPRQVWUDWHGRQKLVEHKDOIDWWKH'LVWULFW&RXUWZKHUH+RZH¶VK to be heard. at 6. at 6. in El Paso El in federal the for prison Fort at Leavenworth, Kansasto out serve the sentence. confinement his of remainder Officer to Appeal Verdict Appeal to Officer speculated that his release was due to the likelihood that the Supreme Court would view his habeas petition more more petition habeas his view would Court Supreme the that likelihood the to due was release his that speculated Interview, Howe moot. issue the rendered military the him, releasing by favorably; His attorneys District soughtcorpus in a habeas writ of claiming Howe Court, had in been mistreated the Fort and Bliss stockade was kept rather than imprisoned restricted to quarters (as was sometimes permitted only officers) for because of the case.political his of nature Several afterweeks the demonstration at District Court, Howe, fresh parole,from a attended protest in Denver,march Colorado, as part of a ofseries Vietnam War the globe. across protests 1966, at 1. at 1. 1966, Rechy, 88. reportedly filed a $350,000 lawsuit against the the against lawsuit a $350,000 filed reportedly Howe written by another soldier who himself had also taken part in an anti-Vietnam War demonstration). demonstration). War anti-Vietnam an in part taken had also himself who soldier another by written Howe Secretary Robert McNamara Secretary Robert soon thereafter granted Howe parole, and he was confinement. released from VHQLRU+RZH¶VUHPDUNVZHUHGURZQHGRXWE\FKDQWVRI³/HDYHQZRUW hecklers. D. The AppealD. The turned their attention to a direct appeal through the military justice system. With a sentence WKDW LQFOXGHG D GLVPLVVDO DQG FRQILQHPHQW Board of of a body Review, lawyersto appeal Army the to reviewed Army proceeded who IRU RQH \HDU +RZH¶V RI+RZH¶VFDVH+RZH¶VDWWRUQH\VVRXJKWWRFROODWHUDOO\DWWDFN FRQILQHPHQW:KLOH+RZH¶VPRWKHUEXVLHGKHUVHO 41647-tul_55-1 Sheet No. 63 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 63 41647-tul_55-1 41647-tul_55-1 Sheet No. 63 Side B 09/18/2019 11:37:45 M K Free Free C Y Thus, s petition s petition WLRQ IRU ¶ 98 KH PRVW U\ $SSHDOV W RYHUULGH D In so doing, doing, so In If Article 88 88 Article If SWXRXVLQIDFW 102 103 LVFRQVWLWXWLRQDO VFXVVLRQ RI WKH The court at first The court at first With regard to the to the regard With 100 HUPLW WKH YHU\ WUXVW 97 s case the Court of Military Military of Court the case s ¶ -$UWLFOHDVDSSOLHG UUHFRQVLGHUDWLRQRIWKDW XWUDOLW\RUUHVSHFWIRUWKH ZH¶VDFWV³DUHSHUVRQDOO\ DQGLQJDVVXFK´ XWLRQDOLW\XQGHUWKH)LUVW 99 note 3, at 1193; Lawrence J. Morris, J. Morris, Lawrence 3, at 1193; note [Vol. 55:109 55:109 [Vol. supra supra HU +RZH¶V VSHHFK ZDV GLUHFWO\ SROLWLFDO LQ With minor exceptions, the provision remains in effect effect in remains provision the exceptions, minor With ´ He was represented by ACLU attorneys in this representedthis He in attorneys ACLU by was , Jan. 17, 1966, at A2. at A2. 1966, , 17, Jan. 93 UN 19 (1966); Aldrich, Aldrich, 19 (1966); .S ± good cause. TULSA LAW REVIEW LAW TULSA ³ ALT , B on whether to accept a case for review. a case for to accept on whether ) 9/17/2019) 2:11 PM UWDJDLQGHFOLQHGWRJUDQWUHYLHZRI+RZH¶VFDVH ELETE D OT N O The panel of three Army officers disposed of each alleged error in in alleged error disposed each of officers Army three Thepanel of $IWHU UHFHLYLQJ EULHIV DQG KHDULQJ RUDO DUJXPHQW RQ +RZH¶V SHWL 95 ,QILQGLQJ+RZH¶VODQJXDJHRQKLVSURWHVWVLJQ³SDWHQWO\FRQWHP +RZH UDLVHG WHQ ³DVVLJQPHQWV RI HUURU´ EHIRUH WKH $UP\ ERDUG W 101 OLNH IDVKLRQ KROGLQJ WKDW +RZH¶V )LUVW $PHQGPHQW ULJKW ³PD\ QR 96 at 558. at 559. at 560. at 561. at 447. ZKRZHUHHDJHUWRSRUWUD\+RZH¶VFRQYLFWLRQDVDYLRODWLRQRIK 94 Howe had a reasonable First Amendment case to plead, given thatAmendment given case to plead, in had reasonable a First he Howe marched +RZH¶V FDVH WKHQ SURFHHGHG WR WKH 8QLWHG 6WDWHV &RXUW RI 0LOLWD ,J-FINAL(D PLOLWDU\RIILFHUWREHLQIDPRXVO\FRPSURPLVHGZLWKSULYLOHJH´ . Backed Appeal Martial Court . Id. . Id. . Id. . Id. . Id. G LQ ODZ´ XQGHU $UWLFOH  WKH FRXUW HQJDJHG LQ DQ H[WHQGHG GL 94 96 97 98 99 EBER 102 KRZHYHUWKHFRXUWVXEVWDQWLYHO\DQDO\]HG+RZH¶VFODLPWKDW8&0 to his freeviolated right speech.to him, civilian in clothes duty, and apparently official expressed off capacity, his opinion no while regulations to political activities.conformed Army his sign,governing The it on message President Johnson rather focused toward directed but not personally was be argued, could can at least be context, an argument this War. In the Vietnam prosecuting of policy his on PDGHWKDW+RZH¶VVSHHFKGLGQRWXQGHUPLQHPLOLWDU\SROLWLFDOQH President as Commander-in-Chief. Moreov the of First a category of speech that at the Amendment.nature, heart rests GHQLHG+RZH¶VSHWLWLRQWRKHDUKLVFDVHEXW+RZHSHWLWLRQHGIR decision.

$UWLFOHFKDUJHWKHFRXUWZDVWHGQRWLPHLQKROGLQJWKDW+R exceed and limit and disgraceful the below tolerance manifestly dishonorable of which the VWDQGDUGVRIDQRIILFHUFDQQRWIDOOZLWKRXWFRPSURPLVLQJKLVVW reconsideration, the cou reconsideration, reasonable and necessary standard of conduct firmly entrenched and necessary ourreasonable firmly in system of standard conduct of military MXVWLFH´ business a 93. involving With case refer every appeals). a service criminal of of a court called General (now Advocate review of Judge a board to more the or that year one for required UCMJ, confinement 66(c), or dismissal Article 866(b)(3). § U.S.C. 10 UCMJ; 66(c), Art. today. effect in remains provision the exceptions, minor 95. 1966). (A.B.R. 557 555, C.M.R. 37 Howe, v. States United more serious court-martial serious convictions. more 120 120 W ³&0$´ ZKLFKKDVGLVFUHWL appeal rights. WKH%RDUGRI5HYLHZXSKHOG+RZH¶VFRQYLFWLRQDQGVHQWHQFH an ZURQJIXOQHVV RI +RZH¶V PLVFRQGXFW KROGLQJ WKDW LW FRXOG ³QRW appellant Presidential by the and commission and appointment reposed honor, in fidelity S as a VLJQLILFDQWFHQWHULQJRQFKDOOHQJHVWRWKHWZRFKDUJHV¶FRQVWLW Amendment. 100. in Howe applicable not exceptions certain with that stated 67, UCMJ, Article Appeals (now called the Court of Appeals for the Armed Forces) may grant a convicted servicemember a convicted grant may Forces) Armed the for Appeals of Court the called (now Appeals 103. 218 214, U.S. 384 Alabama, v. Mills today. Art. 67,10 UCMJ; U.S.C. § 867(a)(3). 101. 1967). (C.M.A. 431 429, C.M.R. 37 Howe, v. States United for review of a lower courtdecision for 41647-tul_55-1 Sheet No. 63 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 63 41647-tul_55-1 41647-tul_55-1 Sheet No. 64 Side A 09/18/2019 11:37:45 110 In In 112 court Thus, 105 111 olonists at the at the olonists 121 121 HFRXUWGLGQRWGLVFXVV 108 Q SHUVRQDOO\ WKH In a time where military military time where a In GHDWKDW³VXFKFRQGXFWE\ QFHGE\WKHF QWPXWLQ\DQGVHGLWLRQ´ IURPVWDWLQJWKDW$UWLFOH WU\´ FWVDJDLQVWWKH³HYLO´RI³WKH 106 \DV-RKQVRQWKH&RPPDQGHU ´UHTXLULQJYLJLODQWRYHUVLJKW QRWGLVFXVVZK\+RZH¶VVSHHFKRQ g the conviction the g and sentence. The court then turned to an analysis of The turned court then to an analysis of 104 3XQLVKLQJFRQGXFWVXFKDV+RZH¶VWKHFRXUW 71 (1982). 109 ± , the law officer required not to instruct was the In so doing, the court so doing, essentially In criticismfused of 107 . 660, 670 . 660, EV 34. .L.R ± ) 9/17/2019) 2:11 PM ARQ ELETE note 16, at 189. 189. 16, at note D OT , 65 , 65 M N THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF O supra supra 38. 38. 43. 43. 37. 37. , ± ± ± -duty -duty or thestatus that apparentlyone, police, no fact aside from military , 37 C.M.R. at 439. 439. at C.M.R. 37 , , 37, C.M.R. at433 at 437 at 437. at 436 at 439 at 447. HERRILL However, theHowever, Court of Military disagreed. TheAppeals court opened a detailed with The court also noted that Article 88 is aimed at a larger constitutional issue: the constitutional at a larger The Article 88 is aimed court that noted also 7KHFRXUW¶VRSLQLRQLVQRWDEOHIRUZKDWLWGRHVQRWGLVFXVV7K ,J-FINAL(D M K . Id. . Id. . Id. . Id. . Howe . Id. . Id. . Id. . Id. . Id. . Howe C Y VHHPVWRUHTXLUHQRDUJXPHQW´ EBER 111 110 107 109 112 106 105 104 108. S the limits of limits of First the Amendment that protections, noting the constitutional right to free speech is absolute not and be balancedmust and against rights other harms. ³GHFLGHGWRLJQRUH-RKQVRQWKHSROLWLFLDQDQGWUHDWKLPVWULFWO KHOGSURYLGHGDEXOZDUNDJDLQVW³DQHQWHULQJZHGJHIRULQFLSLH 3UHVLGHQW -RKQVRQ¶V SROLFLHV ZLWK FULWLFLVP RI 3UHVLGHQW -RKQVR LQ&KLHIDPLOLWDU\PDQDQGQRWWKHWRSSROLWLFLDQLQWKHFRXQ IRUFHVZHUHHQJDJHGLQFRPEDWLQ9LHWQDPWKHFRXUWKHOGWKHL an officer constitutes a clear to discipline danger armed servicesand present our within . . Speech in the Military the in Speech 2019] 2019] W depends on careful line-drawing,Howe certainly careful argumentan depends thathad the safe on on he was that least or at line, the be unconstitutionallyas to line vague. unclear was so of side the law, against contemptuous under speech military prohibitions of the history of discussion War and were of Articles British 1765 that the UCMJ to the back dates noting provision 1775. in Congress Continental the by adopted WKHFRXUWGHQLHG+RZH¶VSHWLWLRQHIIHFWLYHO\DIILUPLQ The court then held that the same concerns that justifiedThe same that held concerns that the court Article then equalwith apply 88 also and a gentleman an officer unbecoming conduct the that holding 133, Article to force First Amendment. the of violation in or unconstitutionally vague not article was protection of civilian control of the The civilian the court that observed military. civilian of control supremacy of protection RYHUWKHPLOLWDU\LVD³WUDGLWLRQ>WKDW@KDVEHHQEUHGLQWRXV WRSURWHFWDJDLQVWWKH³LQWHPSHUDQFHRIPLOLWDU\SRZHU´H[SHULH KDQGVRIWKH.LQJDWWKHQDWLRQ¶VIRXQGLQJ SDUWLFXODUWKHFRXUWDGYDQFHGWKHQRWLRQWKDW$UWLFOHSURWH impairment of an the discipline by officer of of insubordination impairment military and the promotion Chief of State and the towardCommander-in- the contemptuous in using service words &KLHIRIWKH/DQGDQG1DYDO)RUFHVRIWKH8QLWHG6WDWHV´ members on the difference from personally contemptuous personally from political language the difference versus on members LV ³SODLQ DQG XQDPELJXRXV´ DQG WKXV +RZH¶V RII The as court did a military member. him recognized KLVVLJQZDV³SHUVRQDOO\FRQWHPSWXRXV´RIWKH3UHVLGHQWDSDUW 41647-tul_55-1 Sheet No. 64 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 64 41647-tul_55-1 41647-tul_55-1 Sheet No. 64 Side B 09/18/2019 11:37:45 M K C Y , June 30, 30, , June He earned a a He earned RIBUNE TXDWHJXLGDQFH T 121 116 ¶VFHUWLILFDWLRQRIWKH QWKH(O3DVRSURWHVW ISMARCK ISMARCK ³+HQU\LVWKHJX\ZKR , B Nonetheless, the message Nonetheless, the message 114 [Vol. 55:109 55:109 [Vol. IFE L Howe has also appeared in military military has also appeared in Howe , (last https://www.ndcourts.gov/Lawyers/03090 120 115 Art. 67a, UCMJ; 10 U.S.C. § 867a. Thus, Howe would would Howe Thus, 867a. § U.S.C. 10 67a, UCMJ; Art. OURTS Handling both criminal defense and a range a range and defense criminal both Handling ILITARY ILITARY See 118 -M N.D. C OST P TULSA LAW REVIEW LAW TULSA III. His forty-five year career in private practice has been practice private His forty-five been in career has year TATE OF 117 t of Transp., 816 N.W.2d 786 (N.D. 2012); City of Grand Forks v. Corman, Corman, v. Forks of Grand City 2012); (N.D. 786 N.W.2d 816 Transp., t of ¶ ., Nov. 15,2014, 8. at ) 9/17/2019) 2:11 PM ±DQGWRILJKWIRUWKHULJKWVRIRWKHUVWRGRVR´ note 5. 5. note RIB T he court-martialhe to quiet meant Howe instead instilled in a him need ELETE D supra supra note 6, at 10. 10. 6, at note Final Approval Given in Microsoft Lawsuit Settlement Lawsuit Microsoft in Given Approval Final loudly OT ± note 103, at 671. 671. at 103, note N Microsoft later settled the suit for an estimated nine million dollars, with later settled an estimated suit Microsoft for the dollars, nine million with O ISMARCK ISMARCK 44. 44. supra supra ± , Bell v. N.D. Dep supra 119 7KHRSLQLRQDODZUHYLHZDUWLFOHDVVHUWV³SURYLGHVLQDGH 122 at 443 113 With his term of term confinement his With served, his appeals exhausted, dismissal and his Howe enrolled in law school at Golden enrolled in Gate andHowe admitted University the to was ,J-FINAL(D . See, e.g. . See, . Id. EBER 118 113 767 N.W.2d847 (2009); City of Grand Forks v. Thong, 640 N.W.2d721 (N.D. 2002); Johnson v. Johnson, 617 689 N.W.2d 460 Braun, v. Breyfogle 1996); (N.D. 739 542 N.W.2d Wills, v. Duncklee 2000); (N.D. 97 N.W.2d 1986); (N.D. 306 N.W.2d 396 Powers, v. Raaum 1990); (N.D. 299 N.W.2d 456 Williams, v. Koch 1990); (N.D. v. Jamestown 1984); (N.D. 825 N.W.2d 355 Oviatt, v. Oviatt 1986); (N.D. 765 N.W.2d 393 Dahlen, v. Dahlen Rolfzen, 238 N.W.2d661 (N.D. 1976). 119. 2003). (N.D. 287 285, N.W.2d 656 Corp., Microsoft v. Howe 120. Kolpack, Dave courts at nearby Grand Forks Air Force Base on several occasions, an experience he an experience he several occasions, Force Base on Air Grand Forks courts at nearby also but described in light of rewarding surreal ownhis court-martial. class action. of civil matters, Howe earned several significant victories. In 2003, he led a class action 2003, action In class earned victories. significant led a Howe several civil he matters, of againstlawsuit Microsoft allegedlyfor engaging in anti-competitive acts; the state 6XSUHPH&RXUWUXOHGLQKLVIDYRUZKHQ0LFURVRIWFKDOOHQJHG+RZH visited Dec. 21, 2017). eventful. the A search of LEXIS cases database reveals dozens of in Howewhich appeared Court. Dakota Supreme North the before was clear to Howe: stand. convictionwas to Howe: clear his would UHSXWDWLRQDVDWRXJKOLWLJDWRU$IHOORZDWWRUQH\VDLGRI+RZH going was priors three dealer who a with person cases ofwas meth the try who would Henry life. or thanfor would down not win, more often get evidence andsuppressed then KH¶GZLQ´ speech. 122 122 W seemed to solidify his desire solidify to against to seemed out perceived his injustice. speak As a 2006 account RI+RZHDVVHUWHG³>W@ to speak his mind H[HFXWHG+RZHPRYHGRQIURPPLOLWDU\OLIH+RZH¶VH[SHULHQFHL

to military personnel considering participation in off-post, in demonstrations participation considering off-duty personnel military to itbecause is clear not whether it was the topic Vietnam, of the of a publicfact or march, +RZH¶VVLJQVWKHPVHOYHVWKDWZHUHWKHEDVLVRIWKHGHFLVLRQ´ much of the proceeds benefiting school districts. proceeds benefiting the of much 2004, at 5C. at 5C. 2004, 121. Interview, Howe 122. B Opinion, North Dakota bar in 1973. bar in Dakota North 115. At the time, servicemembers did not have the right to petition the Supreme Court for certiorari on appeal appeal on certiorari for Court 115. Supreme the petition to right the have not did servicemembers not time, does the right At that but 1983, of Act Justice Military the in right this gained They conviction. a court-martial of review. for discretionary a petition of denial to extend not have been entitled to seek certiorari in his appeal even under the post-1983 provisions, as the Court of Military Military of Court as the provisions, post-1983 the under even appeal his in certiorari seek to entitled been have not case. his of review denied Appeals 116. Kennedy, 117. S Howe, H. Henry of Profile 114. Morris, 41647-tul_55-1 Sheet No. 64 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 64 41647-tul_55-1 41647-tul_55-1 Sheet No. 65 Side A 09/18/2019 11:37:45 . ) ´ 130 124 URP m not m not ¶ IONEER P AUL [w]ell, I .P ³ T ll sue for you your ). ¶ , S ´ 123 123 Howe vowed to to vowed Howe 132 JRYHUQPHQWDOOHJHGWKDW EDUGLVFLSOLQDU\DFWLRQV´ ODZ 65 (2016). UHOHDVHDOWKRXJKWKHVWDWH (N.D.) (Dec. 30, 2014, 9 PM), 9 PM), 2014, 30, (Dec. (N.D.) In 1977, the state Supreme state Supreme 1977, the In 7KH DSSHDO RI +RZH¶V  ve got and charge you withneglect 125 ¶ Howe was reinstated Howe this was from ERALD ERALD 127 H 134 NTRODUCTION I ORKS F HORT S 129 RAND RAND ERY , G However, the toughness and advocacy he displayed displayed he and advocacy toughness the However, :AV ll sue you for everything you ¶ I if you want to play these silly little legal games, I games, legal little silly these play to want you if 123 ² ² USTICE J However, prosecutors later dismissed prosecutors charges However, the and the state ) 9/17/2019) 2:11 PM ILITARY ILITARY 131 56; State v. Howe, 257 N.W.2d413, 413,416 (N.D. 1977). ELETE ,M ± UHQFHVILYHSULRUGLVFLSOLQHVIRU+RZH¶VPLVFRQGXFWVSDQQLQJI s 2001 appeal of a suspension states that following his admission to the North Dakota Dakota North the to admission his following that states suspension a of appeal s 2001 D ¶ m a good lawyer ¶ Grand Forks Attorney Charged With Conspiracy to Murder Informant OT N IDELL THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF O m making a statement m making 51, 655 51, Apart from these criminal charges, Howe was suspended from practicing practicing charges, suspended Howe these criminal from was from Apart ¶ ± R. F 126 he has remained a member of the Bar, except for a 90-day suspension in 1977 in suspension 90-day a for except Bar, the of a member remained has he , 257 N.W.2d at 414, 419. 419. 414, at N.W.2d 257 , Disciplinary Action AgainstHowe, 843 N.W.2d325,3252014); (N.D. Sarah Volpenhein, However, Howe was successful enough in combatting the allegations against combatting the Howe against allegations in However, successfulwas enough ³ Disciplinary Action Against 847 Howe, N.W.2d126,126 2014). (N.D. Disciplinary Action Against 626Howe, N.W.2d650,657 2001). (N.D. Howe, 865 N.W.2d 844,845 (N.D. 2015). Disciplinary Action Against 842 Howe, N.W.2d646,646 2014). (N.D. at 651 (Howe at 650 UGENE 128 133 (Minn.) (Jan.30, 2014, 11:01https://www.twincities.com/2014/01/30/grand-forks-attorney- PM), In re Later in 2014, Howe was suspended from practicing law for six months and months for day law six one practicing suspended from 2014, Howe was in Later In re In 2014, the state bar imposed an interim suspension Howe interim on charged an he was when state bar imposed 2014, the In Id. In re In re Howe has also experienced his share of personal legal scrapes. In the words of one legal one scrapes. personal has of the of experienced also Howe words his In share In re ,J-FINAL(D M K . Top Stories from the Heraldfor 2014 . Id. . Id. . Howe C Y EBER RESS RESS 133 125 126 charged-with-conspiracy-to-murder-informant/. charged-with-conspiracy-to-murder-informant/. 132. him that his suspensionshim rare and brief. were making a threat, I threat, a making 124. State v. Howe, 247 N.W.2d 647, 650 (N.D. 1976) (Howe allegedly told the woman, woman, the told allegedly 124. (Howe 1976) (N.D. 650 647, N.W.2d 247 Howe, v. State 1977 to 1998, centered mostly on lack of diligence or lack of communication with communication lack of or with diligence lack of on mostly centered 1998, to 1977 clients. carry out his own investigation of the drug task force agents who implicated him and him implicated task agents drug who force the investigation of out his own carry others.

https://www.grandforksherald.com/news/3644853-top-stories-herald-2014. https://www.grandforksherald.com/news/3644853-top-stories-herald-2014. 134. throughout his own court-martial his own throughout in defending himself him served appeal and well have justthree years 1976, than In not. often these actions, as has prevailed against more he admitted bar, being after to the Howe was charged a tampering with witnesswith after he telephoned a had complaint againstwoman criminal filed a who the client. of mother his suspension also refe P 123. E 2019] 2019] W law for 90 days in 1977 and for 120 days in 2001. in 120 days for 1977 and in 90 days for law EDUOLIWHGWKHLQWHULPVXVSHQVLRQRQ+RZH¶VDELOLW\WRSUDFWLFH for violating rules of professional conduct rules of in representing violating clients;for immigration later he settled a suit that arising incident.from malpractice Howe was charged with conspiring with two suspected drug dealers and an undercover dealers and an undercover suspected drug two conspiring charged with Howe was with to ainformant kill female undercover informant who a was key againstwitness a client of +RZH¶VLQDGUXJFDVH The county court dismissedThe county the the state charge, after reversed and Court thatSupreme thedismissal, charge dismissed later apparently was again. &RXUWRYHUWXUQHG+RZH¶VFRQYLFWLRQIRUIDLOXUHWRDSSHDUDIWHU KLJKFRXUWH[SUHVVHGLWVGLVDSSURYDORI+RZH¶VDFWLRQVDQGWKH Howe violated state appellate procedure rules in ten ways in pursuing his appeal of the the his appeal of in ten pursuing in ways rules violated state appellate procedure Howe conviction. 129. 128. with criminal conspiracy to commit murder, among other alleged acts of alleged acts of misconduct. other to commit among criminal conspiracy murder, with 127. backteeth. know You I PLOLWDU\MXVWLFHVFKRODU+RZH³DPDVVHGDQLPSUHVVLYHUHFRUGRI his legal career. course of the over 130. 131. Lee, J. Stephen bar in 1973, 41647-tul_55-1 Sheet No. 65 Side A 09/18/2019 11:37:45 Side A 09/18/2019 Sheet No. 65 41647-tul_55-1 41647-tul_55-1 Sheet No. 65 Side B 09/18/2019 11:37:45 M K ORKS ORKS F ERALD F ERALD (N.D.), C Y Grand Grand Howe Howe H H 138 RAND RAND RAND RAND ORKS ORKS ORKS ORKS F F , G (N.D.) (July 14, 14, (July (N.D.) , G ERALD ERALD GHYRWHGWRKLP H KWKDWWKH Bill Palmiscno Leads Leads Palmiscno Bill RAND RAND RAND XWKLVPRVWODVWLQJ ERALD , G H OWE , G ORKS ORKS .H F (N.D.) 2017). 27, (Apr. ORKS ORKS (N.D.) (Aug. 17, 2015, 8 PM), F were interviewed this for were In 2017, Howe represented represented Howe 2017, In 99 (2018). (2018). 99 ± 137 ERALD ERALD 141 (N.D.) (July 21, 2017, 7:00 PM), PM), 7:00 21, 2017, (July (N.D.) TATES V RAND RAND RAND ERALD H S 194 H Grand Forks Attorney Calls Arbor Park Park Arbor Calls Attorney Forks Grand , G [Vol. 55:109 55:109 [Vol. OCUS ORKS ORKS (N.D.) (June 12, 2018, 10:00 PM), ERALD ERALD F ORKS ORKS F NITED NITED H F U , despite its extensive coverage of Howe of coverage , despite its extensive 139 Grand Forks Attorney Henry Howe Files Civil Civil Files Howe Henry Attorney Forks Grand RAND RAND 136 RAND ORKS ORKS ERALD ERALD F H , G Grand Forks Herald Grand Forks MPACT OF OF MPACT RAND RAND I ESPONSIBILITY IN IN ESPONSIBILITY ORKS ORKS R F , G 46 (N.D. 2015). 2015). (N.D. 46 His actions in that in discussed areactions His matter study as a case ± TULSA LAW REVIEW LAW TULSA 135 RAND RAND Grand Forks Herald Grand Forks UIHZLQ*UDQG)RUNVDUHDSSDUHQWO\DZDUHRI+RZH¶VUROHLQ ONTINUING ONTINUING ) 9/17/2019) 2:11 PM s Response C ROFESSIONAL ROFESSIONAL ’ , G activities for the activitiesthe for Efforts Underway to Void Grand Forks Arbor Park Election Park Arbor Forks Grand Void to Underway Efforts New Grand Forks School Board to Face Big Decisions Big Face to Board School Forks Grand New ., P HE ELETE D T Howeve OT After Tax Payment, Howe Properties to Return to Private Ownership Private to Return to Properties Howe Payment, Tax After in in City QG³NLQGRIDORFDOPDQRIP\VWHU\WRXV´ N IV. Arbor Park Supreme Court Case sees most Appellants Withdraw from Suit from Withdraw Appellants most sees Case Court Supreme Park Arbor ’ 140 O KDVLWVRZQ³WDJ´IRUKLPRQLWVZHEVLWHZLWKVHYHUDOVWRULHV AHL ET AL AHL P. S Howe, 865 N.W.2d 844, 844 844, N.W.2d 865 Howe, Frivolous (N.D.) (Nov. 21, 2017, 7:00 PM), http://www.grandforksherald.com/news/4363412-arbor-park- 7:00 PM), 2017, 21, (Nov. (N.D.) ‘ (N.D.) (Oct. 12, 2016, 3:00 PM), https://www.grandforksherald.com/news/4135448-after-tax-payment- 3:00 PM), 2016, 12, (Oct. (N.D.) OHN +RZH¶VSURPLQHQFHLQ*UDQG)RUNVDQGDFURVV1RUWK'DNRWDLVVXF Howe has remained in the spotlight in recent years. In 2016, he engaged in extended in engaged he 2016, In recent years. in spotlight the in remained has Howe +RZH¶VFLYLOLDQODZFDUHHUKDVFDUULHGDJRRGGHDORIUHQRZQE Archive of Articles mentioning Henry Howe, G Howe, Henry mentioning Articles of Archive In re ,J-FINAL(D . EBER ERALD ERALD 140 Forks Herald recent years. in and public battles with the City over a number of issues, of taxes and including a number delinquent over City the battles and public with length ofthe outsidegrass Howehis office. downtown paidultimately the delinquent taxes grass the the alleging issue, grass ordinance over was him billing cityfor the sued but ³XQFRQVWLWXWLRQDOIRULWVYDJXHQHVV´DQGDUELWUDULO\DSSOLHG article; both article; both stated they had some awareness vague that Howe been had in the military court-martial. of his knew neither but One as a small Vietnam, man, describedduring him a speaker a quiet over the has the years, over of no made hismention Vietnam-era experiences. Two reporters who KDYH FRYHUHG +RZH¶V military justice history. The filed to run for a local school board school a local seat in 2018. for to run filed (N.D.) (July 12,2017 11:00 AM), http://www.grandforksherald.com/news/government-and-politics/4296511- efforts-underway-void-grand-forks-arbor-park-election. 139. Baumgarten, April 2016, 6:00 PM), https://www.grandforksherald.com/news/4074234-grand-forks-attorney-henry-howe-files- PM), 6:00 2016, civil-complaint-over-grass-violation-letters. 138. Easter, Sam howe-properties-return-private-ownership; Easter, Sam Complaint Over Grass Violation Letters, Seeks $10,000 in Damages $10,000 Seeks Letters, Violation Grass Over Complaint supreme-court-case-sees-most-appellants-withdraw-suit; Sam Easter, Easter, Sam supreme-court-case-sees-most-appellants-withdraw-suit; Lawsuit http://www.grandforksherald.com/news/4301317-grand-forks-attorney-calls-arbor-park-lawsuit-frivolous- Sam Easter, citys-response; http://www.grandforksherald.com/tags/henry_howe (last visited Aug. 3, 2018). 2018). 3, Aug. visited (last http://www.grandforksherald.com/tags/henry_howe 141. G Reporter, Easter, Sam with interview Telephone School Board Candidates Board School (N.D.) (June 10, 2018, 5:00 AM), http://www.grandforksherald.com/news/education/4457897-new-grand-forks- Knudson, Pamela seats. open the of one win not did Howe school-board-face-big-decisions. H H Malpractice Suit Against Howe Settled out of Court of out Settled Howe Against Suit Malpractice suspension with restrictions after providing proof of rehabilitation, butrehabilitation, of nonethelessproof restrictionssuspension he afterwas providing with his statements about concerning conduct professional of a rule violating for reprimanded a judge during his suspension. 124 124 W http://www.grandforksherald.com/news/education/4459722-bill-palmiscno-leads-school-board-candidates. http://www.grandforksherald.com/news/education/4459722-bill-palmiscno-leads-school-board-candidates. in a new professional responsibility textbook. responsibility professional a new in 137. Easter, Sam two dozen people in a legal fight against a legal a planned people development in dozen a local park.fight of two

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(Tacoma, The Air Air The AILY Initially, Initially, 151 RIB , D 158 T 157 J., June 9, 2002, Nonetheless, Nonetheless, Code of Dishonor This generated , Dec.1998, 7, 1. at 154 EWS EWS Navy Times ALIFORNIAN Marine Gets Warning 153 rights. , Oct. 21, 1998, at A22. at A22. 1998, , 21, Oct. , N EACON EACON IMES B K .T IMES UDFFRXQWQRWHGKHZDV V D MRNH´ , Oct. 20, 1998, at A1, 11. 11. A1, at 1998, 20, , Oct. T Letter, C Letter, non-judicial punishment DIWGRGJHU´DQGD³PRUDO ASH KRON ³ In 2006, Army Lieutenant Lieutenant 2006, Army In IMES , A , W FULPLQDO´ T , June 9, 1993, at 2A; Quinn-Judge, Quinn-Judge, 2A; at 1993, 9, , June , N.Y. 159 ODAY , L.A. [Vol. 55:109 55:109 [Vol. T -martial as a precedent for punishing punishing for precedent as a -martial , USA )RUDWLPHLWDSSHDUHGWKDW+RZH¶VVWUHDN 160 carried an opinion piece from another Marine Marine another from piece opinion carried an criticizing President George criticizing W. and his Bush , Oct. 25, 2003, at A1. , Nov. 14,1998, at A13. 156 TAR S 152 , Nov. 14,1998, at A10. LOBE TULSA LAW REVIEW LAW TULSA 3UHVLGHQW&OLQWRQ¶VDIIDLUZLWKD:KLWH+RXVHLQWHUQOHG G IMES EDGER T -L consisting of a forfeiture of pay and a reprimand. and a pay of forfeiture a of consisting OSTON OSTON ) 9/17/2019) 2:11 PM , N.Y., 150 ILOT s Remarks Under Investigation Under s Remarks , B Major Gets Punished for Criticizing President Criticizing for Punished Gets Major ’ P Testing of a President: Critics; Marines Scold Officer Who Called Clinton an an Clinton Called Who Officer Scold Marines Critics; a President: of Testing Anti-Bush Letter Touches Raw Nerve Military Nerve in Raw Touches Letter Anti-Bush Military WarnsSoldiers of Failure to HailChief OHDGHUVDJDLQFLWHG+RZH¶VFRQYLFWLRQLQFDXWLRQLQJVHUYLFHPHPE ELETE D The Washington Times The Washington Army Charges Could Bring Prison Time for Iraq War Resister War for Iraq Time Prison Bring Could Charges Army OT .), June 20, 1993, at H3. H3. at 1993, 20, June .), Air Force General Will Have to Learn Not to Bad-Mouth the Boss-in-Chief the Bad-Mouth to Not Learn to Have Will General Force Air Remarks Providing a Lesson in Military Law for Senior Officials, Freedoms Balanced with with Balanced Freedoms Officials, Senior for Law Military in Lesson a Providing Remarks General note 157, at 3C. 3C. at 157, note Military Warns Soldiers Not to Criticize Clinton to Criticize Not Soldiers Warns Military UCMJ Article 15 under which a commander may impose impose may commander a which under 15 Article UCMJ N A Colonel May Face Court-Martial for Attacking President in President Attacking for Court-Martial Face May Colonel IRGINIAN IRGINIAN O Monterey County Herald Monterey County in a Column ,V ’ ,V Military , Mar. 16, 1999, at A19. , supra supra , EWS N 155 IMES inhiding behind Articlenot 88 and publicly condemningthe President. Daniel Rabil, ´ Five later, ofFive years news See generally In this century, Air Force Lieutenant Colonel Stephen Butler wrote a letter to the Force Lieutenant a letter to the Butler Stephen century, Colonel this Air In wrote ,J-FINAL(D .T note 149. 149. note EWPORT ASH EBER Adulterous Liar Adulterous as the only person convicted of violating UCMJ Article 88 was in jeopardy, UCMJ in 88 was violating convicted Article of person only as the Army as the not to publicly criticize the criticize President. tonot publicly warnings from the Pentagon from warnings restrictions about contained the 88. in Article a few months later, months a few &RUSV0DMRU'DQLHO5DELOZKRFDOOHGWKH3UHVLGHQWD³O\LQJGU FRZDUG´ 159. Dale Eisman, 159. Eisman, Dale Country to Duty WKLV FRQWURYHUV\ WKH SUHVV LQYRNHG +RZH¶V FRXUW officers the criticize President.officers who 156. Paul Richter, 156. Richter, Paul Major Sellers received only verbal counseling and a letter of counseling for his actions; actions; his for counseling of a letter and counseling verbal only received Sellers Major of Clinton Over Criticism His 152. David Evans, 152. Evans, David supra supra at A13. at A13. 158. Curtis 2003, at 3C; Drew Brown, Brown, Drew 3C; at 2003, Wash.), July 6, 2006, at A1. A1. at 6, 2006, July Wash.), 155. Rowan Scarborough, 155. Scarborough, Rowan )RUFHGLGQRWGLVFORVH%XWOHU¶VSXQLVKPHQWWKRXJKRQHQHZVSDSH punishment. non-judicialreceived have and may reassigned observers speculated that Butler might be charged with violating Article 88, and used used 88, and Article violating be charged Butlerwith that might speculated observers +RZH¶V FDVH WR GHPRQVWUDWH OLPLWV RQ VHUYLFHPHPEHUV¶ IUHH VSHHF 154. Steven Lee Myers, Myers, 154. Lee Steven a member underhis hercommand. or The maximum punishmentpermissible in such a form varies with the ranks of the commanderbut and the member, generally consists of forfeiture of pay, extra duties, restriction within § 815. U.S.C. 10 UCMJ; 15, Art. rank. in reduction members, enlisted for and, limits, specified certain 151. Spitzer, Kirk 153. Myers, Lee Steven ‘ (N 150. Article 15 of the UCMJ the of 15 Article 126 126 W 160. Michael Gilbert, 160. Gilbert, Michael Ehren Watada announced at a news conference he Watada he to deployEhren at conference was announced refusing a news to Iraq, condemning Presidentrepeatedly Bush and the the betraying lying of for trust American Iraq. in to the country leading people in war Marine Marine Major Corps Shane Sellers to awrite newspaper in the column 157. Curtis, Kim Major Rabil also was not punished for his actions, instead receiving a letter of caution and a transfer in his reserve his reserve in transfer a and caution of a letter receiving instead actions, his for punished not was also Rabil Major their for leaders military criticizing publicly by responded Rabil Major status. non-drill to capacity laziness W KDQGOLQJ RI WKH  WHUURULVW DWWDFNV FRQFOXGLQJ ³7KLV JX\ L editor of the the editor of FKDUDFWHUL]HG3UHVLGHQW&OLQWRQDVDQ³DGXOWHURXVOLDU´DQGD³ 41647-tul_55-1 Sheet No. 66 Side B 09/18/2019 11:37:45 Side B 09/18/2019 Sheet No. 66 41647-tul_55-1 41647-tul_55-1 Sheet No. 67 Side A 09/18/2019 11:37:45 , ± 161 Free Free . 313, ILL OF ILL IDELL . 1891, B EV , 45 A.F. , 45 UHYLHZ EV R. F ARY ARY 502 (2007); 502 (2007); .L.R PLVVLEOH DQG .&M UGENE s case: Douglas B. B. Douglas s case: MEND M ¶ 97 (A.C.M.R. 1983); MERICA FROM THE 127 127 , July 6, 2006, at A1. A1. at 6, 2006, , July A ± A PHPEHUV¶SURWHVW ATERIALS , 82 , 82 N.C. L. R M note 16, at 2, 67, 78, 183 78, 67, 2, at 16, note IMES IRST , 16 , 16 W T which criminalizes acts which HAPED ² supra supra Second Class Citizen Soldiers: A A Soldiers: Citizen Class Second , 14 F S . 1, 65 (2003); John A. Carr, Carr, A. John (2003); 65 . 1, , QVWWKH9LHWQDP:DU1RQH EATTLE EV ASES AND ASES AS AS C , S H note 123, at 65; E 65; at 123, note .L.R HERRILL IL Institution ’ USTICE USTICE supra supra Article 134 Article J s Military Personnel Military s USTICE USTICE ’ , J Court-Martial Jurisdiction Over Retirees Under Under Retirees Over Jurisdiction Court-Martial t Go to Iraq ’ , 175M In Praise of Hostility: Antiauthoritarianism as Free Free as Antiauthoritarianism Hostility: of Praise In Guarded IDELL ‘ 162 23 (1972); S ILITARY ILITARY ± American MilitaryLaw in the Lightof the FirstMutiny  WR GLVWLQJXLVK EHWZHHQ SHU ILITARY ILITARY ,M 222 M Lose in Vietnam, Bring the Boys Home the Bring Vietnam, in Lose 351, 414 (2012); Emily Reuter, Reuter, Emily (2012); 414 351, ASES OW Y C ¶ 26 (2016); F ULLIVAN 37 (1974). ± OL ± :H .P 325 H. S . 1, 69 (1989). Many of the on justicemilitary Many major also discuss books ARTIAL ARTIAL UB EV ARTIAL -M 164 ) 9/17/2019) 2:11 PM -M EYOND WIGHT Academic Freedom on the on the Freedom Academic B .L.R OURT . J.L. & P IL note 45, at 164; John M. Kang, M. Kang, John 164; at 45, note The Army court-martialed Levy under several UCMJ provisions, several UCMJ under Levy provisions, court-martialed The Army ELETE C &D OURT -martial and appeal have also generated a good deal of scholarly scholarly also of good deal a generated and have appeal -martial D ARV 166 AND AND OT ,C Army Charges LieutenantWho Wouldn N supra supra REAT REAT THE CURIOUSTHE COURT-MARTIALHOWE HENRY OF , 126M O +RZH¶VFDVHKDVDOVREHHQGLVFXVVHGDWVRPHOHQJWKLQHLJKWODZ 9/11 ,G RAY ILLMAN , 35 H 165 B 163 ONA L. H Kendall, 712 F.3d814, 827Cir. (3d 2013); United States v. Easton,71 M.J. 168, 180 n.6 (C.A.A.F. M I HRIS HRIS D In re +RZH¶V FRXUW 6WLOOEHFDXVH+RZH¶VFDVHFDPHRQWKHOHDGLQJHGJHRIPLOLWDU\ . 303, 335 (1998); Frederick Bernays Wiener, Wiener, Bernays Frederick (1998); 335 303, . ,J-FINAL(D 06 (2004); J. Mackey Ives & Michael J. Davidson, J. Davidson, & Michael Ives Mackey J. (2004); 06 M K ± EV s Tricentennial . Strassfield, N. Robert (2007); 320 315, J. ’ C Y EBER TS TO EVOLUTION LIZABETH LIZABETH OSEPH OSEPH United StatesReed, v. 2 M.J.972,976 (A.C.M.R. 1976); United States v. Grace,M.J. 2 846,848 (A.C.M.R. 1976); Green v. City of Sioux Falls, 607 N.W.2d43,47 (S.D. 2000). Howe to citing articles following 164. the revealed database LEXIS the of search A McKechnie & Eric Merriam, Merriam, Eric & McKechnie interestset and a lasting legal precedent. Despite the lack guidance in theof Court of 0LOLWDU\ $SSHDOV¶ GHFLVLRQ DV WR KRZ impermissible speech under Article 88, the opinion has been cited in eighteenbeenin cited subsequent opinion has 88, the Article under speech impermissible accept the petition a high numbercourt decisions, considering the actually court did not review. for Act 162. 2008). 21, Oct. Wash. (W.D. 4681577 WL 2008 CO7-5549BHS, No. Head, v. Watada 163. 2012); United States v. Forney,M.J. 67271, 276 (C.A.A.F. 2009); UnitedStates v. Wilcox,M.J.66442, 456 45 Brown, v. States United 2001); (C.A.A.F. 332 329, M.J. 55 Frelix-Vann, v. States United 2008); (C.A.A.F. M.J. 389,394 (C.A.A.F. 1996); United States v. Hartwig, 39 M.J.125, 128 (C.M.A. 1994); United StatesBoie, v. App. Crim. Ct. (A.F. 834 831, M.J. 59 Sollmann, v. States United 2011); App. Crim. Ct. (A.F. 588 585, M.J. 70 2004); United States v. Frelix-Vann,1999 CCA 423 LEXIS (A.F. Ct.Crim. 1999);9, Apr. App. United States v. Walts,1997 258 LEXIS CCA Ct. (A.F. Crim. App. July1997); 7, United States v. Allen,M.J.31 572, 607 Van v. States United 1990); (A.F.C.M.R. 1178 1176, M.J. 30 Hart, v. States United 1990); (N-M.C.M.R. Steenwyk, 21M.J. 795,802 (N-M.C.M.R. 1985); United States v. Clark, 15M.J. 594, 596 1905 J Articles 2(4) and 2(6): Time to Lighten Up and Tighten Up? Tighten and Up Lighten to Time 2(6): and 2(4) Articles L. R R R 161. Hal Bernton, 161. Bernton, Hal 2019] 2019] W E charged Lieutenant Watada with violating the contemptuous words provision. words contemptuous the violating Watada Lieutenantcharged with articles in recent decades. 165. C 333 (2016); Weber, Weber, (2016); 333 Principle Speech However, the Army later dropped this charge. this dropped later the Army However, Speech in the Military Community: Striking a Balance Between Personal Rights and Military Necessity Military and Rights Personal Between Balance a Striking Community: Military the in Speech Proposal for Greater First Amendment Protections for America for Protections Amendment First Greater for Proposal +RZH¶VFDVH LQFOXGLQJYLRODWLQJWKH8&0-¶V³*HQHUDO$UWLFOH´² of a nature to bring discredit upon the armed forces and those prejudicial to good order order to good prejudicial those and armed forces the discredit upon to bring a nature of of these acts of protest acts these of of prominent than thoseCaptain of Army Howardmore Levy. were to procedures dermatology in train members to order an disobeyed doctor, an Army Levy, degrading statements and several public to enlisted them combat personnel made for ready of efforts military membersthe in and encouraging the fighting war audience to refuse his to Vietnam. to go actions in Vietnam,actions it receivedhas not recognition it the Howemight blazed the have. way IRUDQXPEHURIYLVLEOHDFWVRIPLOLWDU\PHPEHUV¶SURWHVWVDJDL 90, 194, 196. 196. 194, 90, 166. 736 733, U.S. 417 Levy, v. 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M at 740 at 737. at 222 I 168 6WLOO+RZH¶VUROHLQWKHDQQDOVRIPLOLWDU\MXVWLFHVHHPVVHFX Whereas HoweWhereas small-scale generated a few and protests local media mostly In his telephoneIn interview for article, Howe this expressed regrets no about his Levy ,J-FINAL(D . Id. . Id. . Id. . Id. . Id. . Id. ,SUREDEO\MXVWZDVQ¶WPHDQWWREHLQWKHPLOLWDU\HVSHFLDOO\ 6RPHERG\¶VJRWWREHWKHILUVWWKDWZDVRND\,EHOLHYHGLQZK GDQJHURXVZKHQVRFLHWLHVVD\WKDW³ZH¶UHULJKWQRPDWWHUZKDW´ any question about it. It was absolutely clear that we thatwere clear we absolutely question It was any it. about While the members of the military are the the the not First protectionof by granted excluded the from While military members mission community and the theAmendment, character of different military the of military requires a different application thoseof protections. The fundamental necessity for obedience, and the consequent imposition necessity for render discipline, of permissible may impermissible outside it. would thatbe constitutionally which thewithin military EBER 168 167 172 175 176 177 KHKDGLWWRGRRYHUDJDLQKHZRXOGVSHOO³IDVFLVW´ actions in 1965 for contemporary lessons, but the most he could come up with was to voice was come up could with buthe the most lessons, contemporary 1965 for in actions a of protest ofmore general the rather than aimwar it at the President. PLOLWDU\MXVWLFHWH[WV&DSWDLQ/HY\¶VFDVHILOOVQXPHURXVSDJH York Times he had not heard of UCMJ Article 88 before his part in the protest, and he felt like he like felt the protest, and he part in UCMJ his Article 88 before of not had heard he VHUYHGDVDVFDSHJRDWIRUWKH$UP\¶VLQWHUHVWLQVXSSUHVVLQJWK Vietnam the War. over emerging of military military of

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