In momentul in care am vazut o discutie interesanta intre Ex-Ad si Terente,am si furat ideea.Pt. inceput ce se spune la altii: LINK .Un articol al Col. Paul Yingling(Terente,multam de aducere aminte ) care a starnit ceva valva la vremea respectiva.Personal nu sunt de acord cu toate cele spuse,dar importanta este atmosfera in care apar asemenea scrieri.O atmosfera in care nimic si nimeni nu e scutit de critica.O cultura militara in care comandantii indiferent de nivel incurajeaza gandirea subordonatilor.Si nu numai gandirea de amorul artei,ci si diseminarea acelor cugetari si experiente in randul intregii armate.O cultura militara in care sergentii nu se sfiesc sa studieze lucrarile generalilor si coloneilor,dar mai si vin cu completari,iar sefii de rang inalt sunt onorati sa accepte acele sugestii.Toate acestea si mult mai multe altele duc in practica(adica atunci cand armata mai si lupta) la ceea ce germanii numeau auftragstaktik.Comandantul da un obiectiv,un cadru general al misiunii,aloca resurse,iar subordonatii executa intentia comandantului folosind propriul cap.Iar in afara cazurilor exceptionale comandantul nu intervine in deciziile subordonatilor.
Conceptul in sine(si contrapunerea modelul de libera initiativa cu modelul centralizator)nu este inventie americana.Nu este nici macar limitat strict la lupta,ci la toate activitatile unei organizatii(militare sau nu).Toate marile armate din istorie(macedonenii,romanii,mongolii,bizantinii,germanii) au avut ceva asemanator. Unde suntem noi,nici nu are rost sa discutam.Ce e de discutat este cum se poate implementa,in limita posibilul,o asemenea cultura in Armata Romana.Iar aici includ si uniformele kaki si pe cele albastre si chiar pe cei in civil.
p.s ''Razboi si Anti-razboi'' de Alvin Toffler trateaza problema intr-un mod frumos de tot.
[...]O atmosfera in care nimic si nimeni nu e scutit de critica.O cultura militara in care comandantii indiferent de nivel incurajeaza gandirea subordonatilor.Si nu numai gandirea de amorul artei,ci si diseminarea acelor cugetari si experiente in randul intregii armate.O cultura militara in care sergentii nu se sfiesc sa studieze lucrarile generalilor si coloneilor,dar mai si vin cu completari,iar sefii de rang inalt sunt onorati sa accepte acele sugestii.Toate acestea si mult mai multe altele duc in practica(adica atunci cand armata mai si lupta) la ceea ce germanii numeau auftragstaktik.[...]
un bun exemplu este acesta
pe care ACH Boribum l-a mentionat in topicul LE, revenind la cele spuse de tine, crezi ca gradele superioare [ma refer la cele din minister] au puterea mentala sa accepte asa ceva?
Problematica e vasta, solutiile sunt la indemana. Armata Romana are traditie, scoli, centre de perfectionare, instructori cu experienta reala si scoliti la aceleasi scoli la care se pregatesc si cei numiti "elita". O buna parte din cei cu putere de decizie sunt deschisi si chiar promoveaza modalitatea mentionata. Nu e o vorba, am lucrat cu cativa si mi-a placut. Ce lipseste ? Deschiderea la varf ! Efortul este mare, trebuie regandite regulamentele, trebuie intarita disciplina, eliminat sistemul de pile si de promovare a mediocritatii si multe altele. Avem, putem, stim dar ... nu vrem ! ... parerea mea !
Un subiect foarte, foarte interesant. Eu am sa fiu extrem de simplist si vin cu un citat de pe forum (sper sa fiu cat mai exact) “ ... calitatea umana nu se gaseste peste tot si la oricine,omenia si bunatatea sunt greu de gasit, acum gasim domnia si prostia, lenea si rautatea ...” De aici trebuie inceput. Non valoarea, tupeul/obraznicia si proasta crestere trebuie date la o parte. Educatorii nostri inca traiesc, sa apelam (in continuare) la inteligenta si profesionalismul acestora, iar rezultatele nu vor intarzia sa apara.
Au fost acum câţiva ani nişte articole foarte interesante în revista "Spirit Militar Modern", articole în care se încerca "disecarea" fenomenului "Este armata o redută a antiintelectualismului?". Intenţia subliminală era de a găsi argumente că nu e aşa, din păcate, argumentele pro erau mult mai multe decât cele contra. Până una alta, pentru un studiu mai aprofundat şi mai riguros al fenomenului, recomand lucrarea de doctorat a LTC(ret)John Nagl (alt discipol de-al lui David Petraeus, am io ce am cu omu' ăsta). "Learning to Eat Soup with a Knife" tratează eşecul armatei americane în Vietnam în a contracara insurgenţa vietnameză şi exact acea cultură şi practici instituţionale care încurajează sau nu diseminarea experienţelor relevante şi învăţarea din acestea. Între timp, văd că SMM apare sporadic, din ce în ce mai rar, a petrecut prea mult timp conformându-se (precum generalii ăia ai lui Yingling ) la presiunile instituţionale de sus în jos, şi mai nou, am impresia că a devenit şi tribuna ştim noi cui (părerea mea, după frecvenţa şi locul de muncă al multor din cei care semnează numărul pe 2009 ). Păcat. O să le păstrez nişte sentimente foarte ambigui, îmi plăceau ce scriau odată.
in urma cu ani, cind am intrat in sistem, primul lucru care m-a frapat a fost UMILINTA... militari cu grade mai mult sau mai putin inalte umblind cocosati prin institutie, executind fara cricnire ordine impregnate de un cretinism perfect... militari cu grade si mai inalte dind ordine aberante doar de dragul de a-si vedea inferiorii cum alearga teorizati incolo si-ncoace pentru a le executa cit mai repede... nu stiu cum este in alte armate ale lumii democratice, insa dupa o experienta in trei dintre institutiile SNS si interactiuni cu restul, pot afirma linistita ca nu prea exista diferente intre structurile militare romanesti in prezent si curtile regale franceze in urma cu citeva secole: nepotism, supusenie absoluta, tradari, comploturi, birfe, amantlic, frecarea intensiva a mentei si pot continua la infinit... iar undeva in spate, putini si izolati, sint "negrisorii" care tin in picioare aceste structuri facindu-si tacuti treaba fie prin centrale, fie prin teatre... ... cine sa mai deschida gura si sa conteste, cu legea, ordinele si regulamentele in mina, ordinele idioate, cind totul se rezuma la pastrarea locului de munca si la relatiile personale pe linie ierarhica?...
The Military, Freedom of Speech, and the Internet: Preserving Operational Security and Servicemembers' Right of Free Speech* By Cornyn, Danley K Publication: Texas Law Review Date: Monday, December 1 2008 I. Introduction
Traditionally, courts have viewed the military as a "specialized society" that entitles servicemembers to fewer free speech rights than civilians.1 Consequently, they have historically deferred to the military, permitting it to restrict the speech of servicemembers as it deems necessary to preserve order and discipline. Increased Internet access and online communication pose a new and great threat to the interests that the military attempts to protect through speech restrictions. The Internet allows servicemembers to reach millions of people anonymously and almost instantaneously, making it difficult to identify those speakers who violate a law or regulation. However, unlike restrictions that only affect servicemembers while they are on duty or in uniform,2 restrictions on servicemembers' speech on the Internet affects all communications: "The military code has always been applied to soldiers both on- and off-duty; military office has always been conceived to be a 24-houra-day job."3 Because the Internet is quickly becoming the dominant method of communication, restricting a servicemember's ability to communicate over the Internet means restricting a servicemember's ability to communicate at all.4 In the face of new threats to operational security posed by the Internet, the military has crafted new regulations on Internet use by servicemembers. Part II discusses these regulations and their impact on servicemembers' speech rights. Part III addresses courts', especially the Supreme Court's, deference to military restrictions on speech. Part IV analyzes three speech rights that are likely affected by the new regulations - the right to private communication, the right to criticize the government and military officials, and the right to anonymous speech. Finally, Part V proposes technical solutions that the military should implement to reduce the impact of the new regulations on the speech rights of servicemembers while still preserving operational security. Additionally, this Note argues that the Supreme Court should adopt a balancing test to determine when the military has impermissibly restricted these rights.
II. Military Internet Regulations
A. The Internet and Operational Security
Due to the increased servicemember access to communication tools made possible by the Internet, the military faces new challenges in preserving operational security (OPSEC). As one Army veteran noted, "[T]he Army has been flooded with young soldiers who have laptops, iPods, digital cameras, recorders, and that has put the fear of god into some of the generals."5 Additionally, the Internet and blogs are becoming an "evergreater source of open source information for adversaries."6 According to the Department of Defense (DOD), as a result of changes in the "global information environment," open-source material has become a significant source of intelligence for adversaries.7 This open-source information is inexpensive to collect and can be procured with very little risk.8 DOD estimates that the United States' adversaries can satisfy eighty percent of their intelligence needs through open sources.9 DOD has taken advantage of open-source intelligence as well, mining blogs for intelligence as a part of the War on Terror.10
Communication on the Internet threatens more than operational security. One of the leading online problems for the military is the posting of photos of servicemembers in uniform while making sexually offensive or racist remarks.11 Another major concern is the posting of criticisms of DOD online.12 Thus, military speech restrictions also "protect the integrity of the Armed Services."13 As a result, members of the military may be subject to disciplinary action for using offensive language or posting inappropriate images on social-networking sites such as MySpace or Facebook.14
B. Online-Posting Regulations
Despite the risks posed by the Internet and blogs, military blogs are an important source of information about military activities and a useful tool to help servicemembers stay in touch with family and friends while stationed overseas.15 Military blogs gained popularity during the current conflict in Iraq,16 and as a result DOD created its first policy regarding online communications.
1. 2005 Blogging Policy. - In 2005, DOD issued a policy memorandum that restricted online communications by servicemembers stationed in Iraq.17 The policy required servicemembers to register their blogs with their unit commanders, but it did not require servicemembers to receive clearance prior to posting.18 The policy required officers to examine the contents of the registered blogs on a quarterly basis to ensure compliance, but forced them to take action only when, in their judgment, the risk of the released information outweighed the benefits of posting online.19 Servicemembers were required to clear photos with their public-affairs officers prior to posting,20 and the policy only applied to blogs and Web sites-it did not apply to e-mail.21 Any servicemember who violated the policy faced punishment or administrative action,22 ranging from shutting down the blog, to paying a fine, to being demoted in rank.23
2. Current Regulations.-In April 2007, the military promulgated new operational security regulations that impose much greater restrictions on servicemembers' speech than ever before.24 The regulations require servicemembers to consult with their unit OPSEC officer for an OPSEC review prior to posting anything in a public forum.25 Public forums include: letters, r?sum?s, articles for publication, e-mails, Web site postings, blog postings, discussions in Internet forums and message boards, and other discussion forums.26 These regulations apply to active-duty military, civilians employed by the military, contractors, and servicemembers' families.27 A violation of a lawful military regulation is punishable under 10 U.S.C. ? 892,28 and could result in court-martial or "administrative, disciplinary, contractual, or criminal action."29
The intent of the new OPSEC regulations was not to require servicemembers to clear every posting with their commanders.30 Major Ray Ceralde, the author of the regulations, recognized that "it is not practical to check all communications, especially private communications,"31 and that "[s]oldiers have a right to private communications with their families."32 However, Major Ceralde noted that unit commanders could require the clearance of private communications if they believed it was necessary.33 Due to the difficulty of monitoring online communication, another possibility is that Internet communications will be banned altogether, as "many commanders will feel like they have no choice but to forbid their soldiers from blogging or even using email."34 Even if commanders do not take this drastic step, many bloggers may decide to quit blogging rather than subject themselves to review and possible punishment.35 Regardless of the course of action commanders choose, it is likely that the regulations will have a tremendous effect on servicemembers' ability to communicate over the Internet.
III. The Deference Doctrine: Judicial Protection of Freedom of Speech in the Military
Courts have significantly limited the First Amendment rights of servicemembers.36 The Supreme Court "has long recognized that the military is, by necessity, a specialized society separate from civilian society."37 Thus, the rights of those in the military "must perforce be conditioned to meet certain overriding demands of discipline and duty."38 Due to the special characteristics of the military community and its mission, the Supreme Court applies a different First Amendment standard with regard to the protection of servicemembers' speech.39 Under traditional First Amendment doctrine, the OPSEC regulations look like an unconstitutional prior restraint on speech, but military speech is constitutionally unprotected if it "undermines the effectiveness of response to command."40 In Parker v. Levy,41 the Court considered the free speech rights of Army Captain Howard Levy, who made public statements to enlisted personnel at his Fort Jackson, South Carolina post, condemning the United States' involvement in Vietnam.42 Levy said that he would refuse to go to Vietnam if ordered to, that "colored" soldiers should refuse to go to Vietnam because the United States discriminates against them, and that "Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children."43 The Court held that Levy's conduct, because it urged military personnel to refuse to obey orders that might send them into combat, "was unprotected under the most expansive notions of the First Amendment."44
The Court's deference to the military has resulted in a variety of restrictions on the speech of servicemembers, and courts have allowed military commanders to restrict speech of both civilians and servicemembers on military bases.45 For example, Article 88 of the Uniform Code of Military Justice (UCMJ) prohibits officers from using "contemptuous" words toward officials, such as the President or Congress.46 While prosecutions under this provision have been infrequent, due in part to the relatively high bar for finding language to be contemptuous,47 the so-called general Articles Articles 133 and 134 - have been used to punish servicemembers for political dissent, such as "disloyal statements."48 Article 133 subjects commissioned officers to court-martial for "conduct unbecoming an officer and a gentleman,"49 and Article 134 subjects all servicemembers to courtmartial for "all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty."50 Servicemembers also are barred from a variety of forms of political expression and political activities.51 These restrictions on speech are justified as "protecting the integrity of the [chain of command] system and preserving military discipline."52
In his Parker dissent, Justice Douglas explored the limits of the Court's deference to restrictions of military speech:
I cannot imagine, however, that Congress would think it had the power to authorize the military to curtail the reading list of books, plays, poems, periodicals, papers, and the like which a person in the Armed Service may read. Nor can I believe Congress would assume authority to empower the military to suppress conversations at a bar, ban discussions of public affairs, prevent enlisted men or women or draftees from meeting in discussion groups at times and places and for such periods of time that do not interfere with the performance of military duties.53
Because the military's new OPSEC regulations restrict activities more similar to those Justice Douglas described than to Captain Levy's speech, the regulations may test the Court's deference to the military. In today's digital world, online communities are the equivalent of the bars and discussion groups to which Justice Douglas referred. While the military unquestionably has the authority to ban speech that poses a threat to national security, these new regulations go a great deal further in restricting speech than is necessary. IV. The First Amendment Implications of the Current OPSEC Regulations
While the military crafted the OPSEC regulations to prevent the posting of materials that pose a threat to operational security, prior review of postings may subject servicemembers to punishment for other infractions - such as violations of regulations that bar servicemembers from e-mailing or posting any information that criticizes the government or military officials, even in private communications. Those regulations also pose a threat to servicemembers' right to anonymous speech, which may be of particular issue in a military environment.
A. The Right to Private Speech
The military has long restricted servicemembers' public and private speech.54 During the Civil War, the military punished soldiers without much regard to the context - public or private - of their speech.55 For example, servicemembers were prosecuted for statements made while drunk, statements made during a private political discussion, and - unsuccessfully - for statements made in a personal letter.56 Similarly, during World War I, claims of privacy were often ignored.57 In one case, the military prosecuted a soldier based on the contents of a letter to his parents.58 The military court ruled that the letter became a public utterance when the soldier submitted the letter to the censor, as he was required to do.59 However, in a few cases, the courtmartial refused to convict based on private conversations, "sometimes to the unconcealed displeasure of commanders."60
The current version of the U.S. military's Manual for Courts-Martial states that "expressions of opinion made in a purely private conversation should not ordinarily be charged," but that the offense is aggravated by the wide circulation of a publication containing contemptuous words punishable under Article 88 or the use of contemptuous language in front of subordinates.61 These restrictions, however, have frequently been ignored in the past.62 Some commentators have questioned the constitutionality of prosecutions for statements made in private. In his article reviewing the history of Article 88, John Kester notes: "Prosecutions under the article for statements made in a letter not intended for dissemination or in private discussion cannot be justified. . . . And even if within the intent of the article, punishment for such utterances probably would not withstand constitutional challenge."63
Despite this view, military courts have punished servicemembers for private speech. In United States v. Hartwig,64 the United States Court of Military Appeals upheld a soldier's conviction under Article 133 for sending an inappropriate letter to a fourteen-year-old girl.65 The soldier in this case sent a private letter to the girl, and her mother reported the letter to the soldier's commanding officer.66 The court held that while the "clear and present danger" standard67 applies to servicemembers' speech, the standard takes on a special meaning in the military context: The military may restrict speech in order to prevent violations of the UCMJ.68 The court also articulated a test for violations based on private speech: "When an alleged violation of Article 133 is based on an officer's private speech, the test is whether the officer's speech poses a 'clear and present danger' that the speech will, 'in dishonoring or disgracing the officer personally, seriously compromisef] the person's standing as an officer.'"69
The new OPSEC regulations affect both private and public speech, and it is difficult to distinguish between public and private speech on the Internet. E-mail could be considered private speech, akin to a letter.70 But the ease with which e-mails can be forwarded distinguishes them from traditional letters.71 What may begin as a private e-mail from a servicemember to family or friends could be sent to hundreds of people in a matter of minutes. Blogs generally would be considered public speech because they are posted on the Internet and widely accessible.72 While some blogs may be generally accessible, a blogger may also restrict access to the blog - allowing only family and friends to read it - so that it serves as an alternative to sending mass e-mails. Additionally, social networking sites such as Facebook could be considered both as private and public speech. While a person's Facebook page may be accessible to the general public, it may also be restricted from the general public's view by the owner.73 But on the balance, it is likely that a court would consider e-mail and other online postings to be public speech. It is also possible that e-mail and online postings could result in the wide circulation of prohibited speech, which would aggravate an offense under Article 88.74
B. Right to Criticize the Military and Its Commanders
A servicemember's right to criticize the military and its commanders is limited. Article 88 prohibits officers from using "contemptuous" language against an official.75 Article 89 subjects servicemembers who disrespect their superiors to court-martial.76 As a result of the specific prohibitions in these two provisions, when criticism of government policy or leaders is punished, it is usually punished under one of the general articles as "conduct unbecoming an officer and a gentleman" or the violation of "order and good discipline." 7 Despite the ambiguous standard of "conduct unbecoming an officer and a gentleman," the Supreme Court has held that Article 133 is not an overly broad restriction of speech or void for vagueness.78 The Court reviews vagueness challenges to the UCMJ according to the standard that applies to criminal statutes regulating economic affairs: "The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language."79
Despite the military's rather stringent restrictions on speech, 10 U.S.C. ? 1034 provides servicemembers with some protection. The statute states that no person may restrict a member of the armed services from lawfully communicating with members of Congress or an Inspector General.80 This statute also protects servicemembers from retaliation if the communication with Congress or an Inspector General reports the violation of a law or regulation, or reports gross mismanagement.81 Essentially, the statute amounts to a whistle-blower provision, allowing servicemembers to report problems without fear of retaliation.
However, these protections are subject to some limitation. In Brown v. Glines,*2 the United States Supreme Court held that United States Air Force regulations requiring servicemembers to obtain permission from commanders before circulating petitions on Air Force bases did not violate the First Amendment or ? 1034.83 The regulations provided that a commander could deny a request to circulate a petition on the base if the petition would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission."84 In Brown, an Air Force captain drafted petitions to several members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards, and the captain circulated them on base without the base commander's permission.85 The Court held:
Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of ? 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.86
It further noted that both Congress and the Court have given military commanders latitude in dealing with matters that affect internal discipline and morale.87
The new OPSEC regulations may prohibit servicemembers from criticizing the military or government officials in writing. By requiring an OPSEC review prior to sending an e-mail or posting on the Internet, the military will be able to identify violations of the UCMJ, such as speech that is regarded as conduct unbecoming an officer and a gentleman. Section 1034 offers little protection in light of the Court's decision in Brown v. Glines. A court likely would find that the OPSEC regulations do not violate servicemembers' right to communicate with a member of Congress or an Inspector General because the preclearance requirement in the regulations does not appear to be all that different from the requirement in Brown that a servicemember obtain permission prior to circulating a petition on a military base.
However, the Brown Court held that the permission requirement did not violate ? 1034 because of the risk of disruption posed by the circulation of a petition on a base,88 and Internet communication to a Congressman or Inspector General does not present the same risk of disruption on the base. Circulating a petition on base could affect everyone on the base, and, depending on the subject matter of the petition, its circulation could be quite disruptive to order on the base. Everyone there could potentially be aware of the petition's content, and this could result in debate and conflict among servicemembers if there were disagreement on the subject. Unlike the circulation of a petition, an individual e-mail to a member of Congress can be kept private, and therefore poses a much lower risk of disruption on base. While such a communication may be undesirable from the military's perspective, it is protected by law. Therefore, the requirement of preclearance in the OPSEC regulations may directly conflict with ? 1034.
C. Right to Anonymous Speech
1. First Amendment Protection of Anonymous Speech and Its Limitations. - Although the Supreme Court has recognized that the First Amendment protects anonymous speech,89 it has not addressed the right of anonymous speech in the military. However, the Court has limited the right to anonymous speech in the area of campaign finance.90 This suggests it might be willing to limit servicemembers' right to anonymous speech. At the same time, denying servicemembers the right to anonymous speech could have serious consequences, which might also persuade the Court to limit its deference to the military and protect servicemembers' anonymity.
In the leading case protecting anonymous speech, Mclntyre v. Ohio Elections Commission91 Mrs. Mclntyre violated an Ohio law prohibiting the distribution of unsigned campaign literature by distributing leaflets opposing a proposed tax levy that were signed "CONCERNED PARENTS AND TAX PAYERS."92 The Court recognized that "an author's decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment," and therefore Mrs. Mclntyre' s right to publish anonymously was protected.93 Applying strict scrutiny, the Court determined that the restriction was not narrowly tailored to serve the alleged state interest of preventing falsity, as nothing in the language of the provision limited its application to false or fraudulent statements.94
In establishing the right of anonymous speech under the First Amendment, the Supreme Court referenced the American history of anonymous publication,95 noting that the right to publish anonymously applies to more than works of literature and that "[persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all."96 Justice Stevens further emphasized the importance of the right to anonymous speech:
Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation - and their ideas from suppression - at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.97
Despite its strong support for anonymous speech in Mclntyre, the Court has limited the scope of the First Amendment's protection for anonymous speech in the area of campaign finance. In McConnell v. FEC,9% it upheld provisions in the Bipartisan Campaign Reform Act of 200299 requiring the disclosure of information that had previously been anonymous. For example, the Court upheld as constitutional a disclosure requirement for sponsors of certain types of "soft money" issue-related advertisements.100 The Court noted that the sponsors of these ads often used misleading names such that the general public was not aware of who was actually funding the advertisements.101 Accordingly, the Government's interest in preventing corruption and the appearance of corruption justified the disclosure requirements.102 In a footnote, the Court distinguished McConnell from Mclntyre on the grounds that preserving citizens' confidence in government and the integrity of the electoral system separated the Bipartisan Campaign Reform Act from the provision in Mclntyre.103
Although the Court attempted to distinguish McConnell from Mclntyre, it is difficult to reconcile the two decisions. Many of the same issues in favor of preserving anonymity in Mclntyre were also present in McConnell. Mrs. Mclntyre's anonymous leaflets are not entirely different from the anonymous sponsorship of political advertisements - both the leaflets and the advertisements advocated political issues. Also, the sponsors of advertisements are just as likely to be persecuted for unpopular ideas as the distributers of unsigned campaign materials, so there is still the need for anonymous speech to serve as "a shield from the tyranny of the majority" and as "protection for] impopular individuals from retaliation." Perhaps the best way to distinguish the two cases is as a matter of degree: the Government's interest in preserving confidence in government and the integrity of the electoral system in McConnell was much more significant than the State's interest in preventing falsity in Mclntyre. Because of the large amounts of money involved in the advertisements at issue in McConnell, anonymous speech posed a more significant risk to the Government's interests.
If the distinction between Mclntyre and McConnell truly rests on the significance of the risk posed to the Government's interests, this does not bode well for the Court's willingness to protect the anonymous speech of servicemembers. The new OPSEC regulations are an excellent example of an effort to protect government interests from significant risk - the serious risk posed to the military by allowing anonymous speech. Monitoring and preventing the dissemination of operationally sensitive information will be difficult if the military does not know who is posting online. However, due to the unique environment of the military, the restriction of anonymous speech under the OPSEC regulations also involves a great deal of risk to servicemembers, as is discussed in section IV(C)(2) below. As a result, the Court could, and should, decide that the importance of protecting servicemembers' right to anonymous speech outweighs the risk of permitting it.
2. "Don 't Ask, Don 't Tell" and Consequences of Limiting Anonymous Speech by the Military on the Internet. - Perhaps one of the largest ramifications of military regulations preventing anonymous speech on the Internet is the conflict with the military's "don't ask, don't tell" policy.104 Like other justifications for military restrictions on speech, the "don't ask, don't tell" policy arises out of the desire to preserve "good order and discipline" in the armed services.105 The policy was crafted to "allow members of the military to live private lives as gay men and women, so long as their sexual orientation remained unspoken."106 Under the policy, servicemembers are allowed to serve in the armed forces regardless of their sexual orientations, as long as the servicemembers agree to remain silent about it.107 In turn, the military is not permitted to ask servicemembers about their sexual orientations or pursue inquiries about a servicemember's sexual orientation without a reasonable basis in fact that the person is gay.108 In today's Digital Age, our private lives include, to some extent, our lives on the Internet. But it seems that any communication over the Internet could be considered "telling" for purposes of the policy, thereby allowing the military to begin an investigation. If servicemembers do not have the right to anonymous speech on the Internet, a gay servicemember would be unable to comply with the "don't ask, don't tell" policy and live a private life as a gay person.
Although no court has addressed the constitutionality of restrictions on servicemembers' anonymous speech, at least one case has addressed the conflict between the "don't ask, don't tell" policy and prohibiting anonymous speech on the Internet. In ACLU v. Miller, the ACLU sought an injunction against Georgia regulations that prevented anonymous Internet posting.110 One plaintiff was an organization that represented gay, bisexual, and transgendered veterans and current members of the military.111 This group argued that the Georgia law posed a serious threat to their members' careers due to the "don't ask, don't tell" policy.112 Although the court did not due to the "don't ask, don't tell" policy.112 Although the court did not specifically consider the ramifications of the regulations for the individuals represented by this group, the court granted a preliminary injunction enjoining the enforcement of the law.113 The court concluded that the plaintiffs would likely prevail in proving that the law was overbroad, void for vagueness, and not narrowly tailored to promote a compelling state interest.114
In another case, McVeigh v. Cohen,115 the D.C. District Court found that the military's efforts to identify a soldier whose anonymous online profile identified him as homosexual likely violated the "don't ask, don't tell" policy.116 In McVeigh, the soldier had discussed his sexual orientation in a seemingly anonymous online profile.117 After someone reported the soldier to his commanding officer, the military undertook an investigation to link the soldier to the profile.118 On the basis that this investigation likely violated the "don't ask, don't tell" policy, the court issued a preliminary injunction preventing the military from penalizing the soldier.119
Both Miller and McVeigh demonstrate the potential conflicts between restrictions on anonymous speech on the Internet and the "don't ask, don't tell" policy. Miller shows the effect that regulations prohibiting anonymity on the Internet could have on homosexual servicemembers, and McVeigh presents the problems associated with the military's attempts to identify anonymous gay servicemembers online. However, neither case discussed servicemembers' First Amendment right to anonymous speech. Denying a servicemember the right to speak anonymously on the Internet prevents servicemembers from leading the private lives that the "don't ask, don't tell" policy recognizes.120 Thus, in spite of the Court's deference to the military on First Amendment issues, the conflict between regulations that effectively prevent anonymous speech on the Internet and the "don't ask, don't tell" policy suggests that a court should intervene to protect servicemembers' right to anonymous speech.
V. Possible Solutions
The First Amendment problems created by the OPSEC regulations may be ameliorated in several ways. First, there are technical solutions that would make the preclearance requirement unnecessary and therefore help preserve servicemembers' privacy and right of free speech. Ultimately, however, in order to enhance servicemembers' free speech rights, the courts need to abandon the deferential standard and protect servicemembers from overly broad and unnecessary restrictions on speech.
A. Technical Solutions
By using technical solutions to address a problem created by technology, the military could both preserve operational security and respect servicemembers' privacy and right of free speech. The military could use filtering systems to scan for sensitive information in e-mail and on blogs, which would help prevent abuses of the preclearance system and preserve servicemembers' privacy and anonymity while still providing OPSEC safeguards.
1. E-mail.-The military's concern with sensitive information being sent over e-mail would perhaps be the simplest to address. For example, the military could require that all e-mail be sent from a military-controlled network. Instead of requiring preclearance of messages, the e-mail system could have a filter designed to recognize certain words and phrases that pose a threat to OPSEC. The filter could then prevent the e-mail from being sent, and the OPSEC officer could review the message for a legitimate threat to OPSEC. If the message was stopped erroneously, the e-mail would then be sent. If the message in fact posed a threat to OPSEC, the OPSEC officer would notify the unit commander. The unit commander could then take appropriate disciplinary action, which would be scaled to match the level of infraction-from an inadvertent disclosure to an intentional leak.
2. Blogging.-The security problems associated with blogs are more difficult to address. One option would be for the military to set up a secure, password-protected Web site where servicemembers may post blogs. Bloggers would be able to provide friends and family with access to the site, and they could register as users of the site whose posts would also be monitored. Military bloggers would be permitted to post with limited anonymity, allowing the military to identify the blogger in the event of a security breach.
The site could also employ some sort of electronic filter, similar to the e-mail filter, which would block posts containing words or phrases that have been flagged as likely to pose a threat to OPSEC. Blocked posts would be reviewed by the OPSEC officer, and the OPSEC officer would allow the posting of a blog that had been erroneously blocked. If a post was correctly blocked, the OPSEC officer would be able to identify the blogger and report the blogger to the unit commander. The unit commander would then be able to take appropriate disciplinary action.
3. Problems with Technical Solutions.-While these technical solutions address some of the specific problems associated with the current OPSEC regulations, they may actually prove to be more restrictive of speech. As the author of the OPSEC regulations noted, currently it is practically impossible to review every e-mail or blog prior to posting. These technical solutions would most likely produce greater review of servicemembers' speech because the review process would be largely automated and therefore less time-intensive for commanding officers to implement.
Another concern is abuse of the filters. The exact words the filters scan for would have to remain unknown in order to prevent people from trying to evade the system, and this means that any words could be included in the filter. For example, a commanding officer could require the filter to include his or her name, thereby flagging any e-mails or postings in which the commanding officer was referenced. The purpose of using filters would be to restrict the review of e-mails and postings to only operationally sensitive information, but abuse of the filter by those who administer it would present all of the same problems that exist under the current OPSEC regulations.
Most importantly, these technical solutions may just provide an illusion of anonymity, when in fact anonymity on the Internet may not really exist. The OPSEC officer and the commanding officer would still have the authority to review any e-mails or postings that are flagged by the filter. Regardless of whether or not there were abuses of the filter system, some filter terms could flag a large number of postings and e-mails. While using a filter term such as "Iraq" might not be the most effective way to scan for truly operationally sensitive information, any e-mail or posting using the word "Iraq" does have an increased chance of containing information that would violate OPSEC. In conducting OPSEC review of each of these emails or postings, even if the author's name were not initially included, it would likely not be difficult to identify the author based on details contained in personal correspondence. The servicemember would still have no guarantee of anonymity.
Despite these problems, employing technical solutions to a technical problem would allow the military to more effectively screen for postings containing OPSEC information. Such solutions would also give servicemembers a greater degree of privacy because, in most cases, no one else would be reading their personal e-mails. However, in order for such solutions to be effective, the military would have to be committed to preserving servicemembers' right of free speech to the greatest extent possible.
B. Judicial Protection
Regardless of any technical solutions, the Supreme Court should give greater protection to servicemembers' free speech rights under the First Amendment. First, the Court should abandon its deferential standard in favor of a balancing test, akin to the Court's approach in First Amendment cases involving government employees. Second, the Court should recognize a right to anonymous speech in the military.
1. The Court Should Abandon Its Deferential Standard.-In order for servicemembers to have any sort of meaningful speech rights, the Court must abandon its deferential standard with regard to military restrictions on speech. The deferential standard is outdated not just as a result of new technology, but also due to changes that have occurred in the military in the last fifty years. When the Court decided Parker in 1974, the United States was emerging from the Vietnam War, during which the draft was used to staff the military. Today, the military consists of volunteers, and while good order and discipline are still of paramount importance in the military, a volunteer military does not have the same degree of cohesion problems as that of a drafted military.122 While a volunteer military does not ensure that there are no dissidents, it does mean that at one point, every servicemember chose to join. This is a sharp contrast to the Vietnam Era, where many members of the military were drafted against their will.123
Also, while the military may still be considered a specialized society, it is not quite as different from civilian society as it once was. Communication tools in the Digital Age have played a large role in that transition, as the military is no longer entirely separate from civilian society. With access to the Internet and e-mail, servicemembers are able to keep abreast of current and personal events in real time, even when deployed. In light of these changes, the Court should abandon its deferential standard in favor of a test that balances the military's interest in performing its mission with servicemembers' interest in commenting as citizens on matters of public concern. In doing so, the Court could provide some meaningful protection of servicemembers' First Amendment rights without impinging on the military's ability to carry out its mission.
The military is not the only "special" environment that the Supreme Court has recognized for purposes of First Amendment analysis.124 In a wellknown passage, the Court stated: "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."125 While admitting that the speech of students may be curtailed, the Court still acknowledged that they have constitutional rights under the First Amendment.
To some extent, the First Amendment rights granted to the military now resemble the First Amendment rights of government employees before the 1960s. At the time, government employment was considered a privilege, not a right, and a government employee was expected to forego certain constitutional rights in order to have the privilege of employment.126 Justice Holmes, prior to joining the United States Supreme Court, illustrated this point in a Massachusetts Supreme Court opinion: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."127 This reasoning reflects the Court's current approach to the First Amendment rights of servicemembers: in order to serve in the military, servicemembers may have to sacrifice their First Amendment rights. However, the United States Supreme Court later rejected Holmes's approach and held that the government could not place unconstitutional conditions on government employment in Pickering v. Board of Education.12* The Pickering Court adopted a balancing test that considered the State's interest as an employer "in promoting the efficiency of the public services it performs through its employees," and "the interests of the [government employee], as a citizen, in commenting upon matters of public concern."129 The Court should adopt a similar balancing test in order to provide greater protection for servicemembers' First Amendment rights.130
By limiting any such balancing test to speech regarding matters of public concern, the military would still retain discretion to punish servicemembers for speech that affects purely internal matters.131 As the Court noted in Connick v. Myers,132 "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment."133 In adopting this approach for the military, the Court would not provide "intrusive oversight," but instead would provide some meaningful protection for servicemembers' right of free speech. For example, a servicemember would still be subject to punishment for criticizing a superior, which would allow the military to maintain good order and discipline. However, if the Court determined that the servicemember's speech was a matter of public concern, it would then apply a balancing test to determine whether the servicemember's speech would be protected by the First Amendment.
As a result of the military's critical mission, the balancing test is likely to be heavily weighted in the military's favor. While the good-order-and-discipline arguments that the Court has recognized in its cases applying a deferential standard to the military would still be an important factor in the balancing test, the main benefit of the balancing test is that it would require courts to take a closer look at both the individual servicemember's behavior and the military's justification when deciding whether the speech was protected. While the courts are likely to side with the military in more cases than not, this added protection means that in a case where a servicemember was punished for reporting on a scandal like Abu Ghraib, the court would not simply defer to the military. Instead, the court would be able to evaluate the servicemember's conduct and entitlement to First Amendment protection under the specific circumstances. Similarly, the balancing test would allow courts to determine if a restriction and its punishment really concerned military matters, or if it was really an impermissible restriction of speech. Thus far, the Court has given the military carte blanche to restrict speech as it sees fit. By subjecting the military to a balancing test, the Court will force it to make convincing justifications of why a restriction serves a legitimate military interest.
The military has an extremely important mission, and its members put their lives at stake in order to preserve, protect, and defend the United States. Servicemembers' First Amendment rights should not be permitted to interfere with the military mission or pose a threat to operational security, but servicemembers should also have more protection of their First Amendment rights than they do currently. By rejecting its deferential standard in favor of a balancing test, the Court would be able to respect the military's critical mission and protect the First Amendment rights of servicemembers.
2. The Court Should Recognize the Right to Anonymous Speech in the Military.-The Court should also recognize that servicemembers have the right to anonymous speech.134 In Mclntyre, the Court recognized the importance of anonymous speech, particularly when it serves "to protect unpopular individuals from retaliation-and their ideas from suppression-at the hand of an intolerant society."135 While it may be extreme to classify the military as an intolerant society, the military's emphasis on cohesion and "good order and discipline" do make the military adverse to minority viewpoints. The "don't ask, don't tell" policy is a good example of how the military has utilized anonymity in order to preserve good order and discipline: the policy permits gays to serve in the military, as long as they are anonymous.
Although McConnell suggests that the right to anonymous speech may be trumped by a significant risk to the Government's interest, McConnell can be distinguished. The most superficial way to distinguish McConnell is on the grounds that it involved money as speech, which is different from the kind of speech at issue in the military.136 Looking deeper, however, the Court's focus on the money in McConnell had more to do with the potential for corruption associated with the money than the money itself-and it is on these grounds that anonymous speech in the military can best be distinguished. While the McConnell Court believed that requiring disclosure of the identity of the sponsor of issue advertisements would contribute to the Government's interest in preventing corruption in the electoral process, requiring the disclosure of the identity of military speakers will not help to prevent government corruption. In fact, the opposite may be true: requiring the disclosure of the identity of military speakers may itself be a form of corrupted government, as it would subvert the military's "don't ask, don't tell" policy. Also, anonymous speech may be the best way to expose military corruption and protect servicemembers from retaliation.
The military's Internet restrictions prevent servicemembers from being able to speak anonymously. The regulations not only prevent servicemembers from posting or e-mailing sensitive national security information, they also prevent servicemembers from expressing any controversial beliefs or thoughts. A gay servicemember may be prevented from writing to a loved one for fear of violating "don't ask, don't tell." A servicemember who has unpopular political beliefs may be prevented from expressing them for fear of retaliation or punishment under one of the general articles.
Of course, anonymity on the Internet may not truly exist. There are ways to identify anonymous Internet users, and it is unclear how much protection courts will extend to anonymity, even outside of the military context. The Internet has transformed anonymous speech, and it has also resulted in many abuses of the right to speak anonymously.137 Anonymous speech on the Internet has given rise to various tort claims, including suits for defamation, in which the plaintiff seeks to unmask the anonymous speaker.138 The Recording Industry Association of America has successfully compelled Internet service providers to reveal the identities of thousands of users in its pursuit of copyright infringement claims due to file sharing on the Internet.139 But these abuses do not justify preventing anonymous speech on the Internet altogether. Instead, they demonstrate the ability to unmask anonymous users and hold them responsible for violating the law or causing injury while still protecting the anonymous speech of those who follow the laws.
The military's Internet regulations prevent all anonymous speech in an effort to preserve operational security, but such a broad restriction is not necessary to serve the military's interest.140 If the speech is truly anonymous, does not concern a military-related topic, and does not give any indication that the speaker is a member of the military, the courts should not permit the military to restrict that speech because it does not threaten good order and discipline or operational security.
VI. Conclusion
The military's new OPSEC regulations highlight some of the problems with the Court's current deferential standard toward military First Amendment restrictions. Servicemembers currently have very few speech rights, and the Court does not adequately protect those speech rights that servicemembers do have, such as the right to communicate with members of Congress. The Court should adopt a balancing test and protect servicemembers' right to anonymous speech in order to ensure that they have First Amendment protection. In addition, the military could adopt technical solutions to better protect servicemembers' ability to more freely communicate via e-mail and blogs.
Ultimately, despite the broad restrictions the OPSEC regulations place on servicemembers' speech on the Internet, the military may be unable to control such speech or prevent OPSEC information from being posted. These regulations are enforceable while servicemembers are on-duty and only have access to computers on the military network. However, servicemembers who are able to go home at night and use their personal computers can still post anonymously on the Internet and will most likely remain undetected by the military. Perhaps the only way to deter the posting of operationally sensitive information on the Internet is to make the punishment so severe that no servicemember is willing to take the risk.
Simplul fapt că aceste lucruri sunt dezbătute, acolo la ei vorbind, nu aici, denotă că sistemul social în general şi proiecţia lui în sistemul militar au capacitatea de a asigura o anumită buclă, un feedback, ceva, măcar o supapă de defulare pentru tensiuni. Simplul fapt că un ofiţer precum Paul Yingling, adus în discuţie mai înainte, este ofiţer activ, într-un post cheie aş spune, după ce a scris un eseu ca cel cu "Failure..." spune destule despre capacitatea LOR de a învăţa din propriile greşeli, inconsecvenţe & erori. La noi cred că ar fi fost rapid trecut pe linie moartă şi "ajutat" să plece din sistem. De chestia asta io unu' sunt sigur. Acum, nici să nu absolutizăm fenomenul la americani, de exemplu un colonel, tot din echipa lui Petraeus, îmi scapă numele acum, a fost "sărit" de comisia de selecţie vreo doi ani de la a fi avansat general, pentru că nu corespundea "patternului" acceptat, cel cu conformarea la cerinţele instituţionale. Ce este cert este că, de câţiva ani, în cercurile militare americane aceste probleme sunt intens dezbătute, fie şi pe fondul eşecurilor iniţiale în a se confrunta cu insurgenţele din Iraq şi Afganistan. Între timp, la noi se aplică se pare în continuare principiul ăla de conducere atât de sintetic prezentat de ex-ad, ăla cu "ordine aberante, doar de dragul de a-si vedea inferiorii cum alearga terorizati incolo si-ncoace pentru a le executa cit mai repede". Închei cu o axiomă a Statului Major General german din timpul WW II:"War is chaos. The Americans do so well because they practice chaos every day."
Herbert R. McMaster.Pe vremea cand comanda Reg.3 Cavalerie a facut ordine in zona lui de responsabilitate folosind cam aceleasi metode folosite de Petraeus la scara integului Irak.Cand era capitan a castigat batalia de la 73 Easting penetrand cu un escadron pozitiile unei brigazi din divizia Tawakalna.Decizie luata pe loc tinand cont de situatia pe teren fara a cere aprobarea superiorilor.Un exemplu clasic a ceea ce ziceam mai sus.
McMaster, aşa îl cheamă pe tip, thanks Mihais . Au reuşit până la urmă să îl avanseze. În altă ordine de idei, a găsit cineva cartea lui, aia cu "Dereliction of Duty..."?
Niet tovarisci.Insa iete cum arata o analiza care: a.dovedeste a mia oara ca omul sfinteste locul b.demonstreaza ca nu tehnica e factorul decisiv;asta e un aspect important pt. unii ca noi,dar la ei se cere ceva curaj moral sa arati asa ceva c.exista Daca noi am facut ceva cu privire la misiunile noastre,sunt sincer curios sa o vad(ioi,am uitat-e probabil secreta).Iar daca nu am facut-o poate ar fi timpul sa se inceapa. victory_misunderstood.doc
Sunt destul de sigur ca multi vor gasi abordarea gen. Wass de Czege interesanta.In esenta ei o interpretare de sec. 21 a principiului stabilirii obiectivului.Ideea de baza vine aparent in contradictie cu ceea ce a fost considerata de multi o eroare fundamentala:schimbarea obiectivului in timpul misiunii.Zic aparent pt. ca ceea ce se sustine e adaptarea permanenta la situatii complexe. Personal am o problema cu o premisa de la care pleaca autorul-anume ca armata sec 21 e chemata sa rezolve crize complexe cu obiective discutabile stabilite de factorul politic.Cu alte cuvinte,politicienii sunt tembeli din nascare,iar comandantii trebuie sa dreaga busuiocul cumva. Asta nu inseamna ca metodologia propusa nu are merite incontestabile. militaryreview_20090228_art004.pdf
Forums
) care a starnit ceva valva la vremea respectiva.Personal nu sunt de acord cu toate cele spuse,dar importanta este atmosfera in care apar asemenea scrieri.O atmosfera in care nimic si nimeni nu e scutit de critica.O cultura militara in care comandantii indiferent de nivel incurajeaza gandirea subordonatilor.Si nu numai gandirea de amorul artei,ci si diseminarea acelor cugetari si experiente in randul intregii armate.O cultura militara in care sergentii nu se sfiesc sa studieze lucrarile generalilor si coloneilor,dar mai si vin cu completari,iar sefii de rang inalt sunt onorati sa accepte acele sugestii.Toate acestea si mult mai multe altele duc in practica(adica atunci cand armata mai si lupta) la ceea ce germanii numeau auftragstaktik.Comandantul da un obiectiv,un cadru general al misiunii,aloca resurse,iar subordonatii executa intentia comandantului folosind propriul cap.Iar in afara cazurilor exceptionale comandantul nu intervine in deciziile subordonatilor.
) la presiunile instituţionale de sus în jos, şi mai nou, am impresia că a devenit şi tribuna ştim noi cui (părerea mea, după frecvenţa şi locul de muncă al multor din cei care semnează numărul pe 2009 
). Păcat. O să le păstrez nişte sentimente foarte ambigui, îmi plăceau ce scriau odată. 
