September 1, 2010
Throughout the Vietnam Era, the ACLU was well known for defending the First Amendment rights of war protesters and conscientious objectors. However, the organization drew national attention when it came to the defense of Army Capt. Howard B. Levy, a medical doctor from Brooklyn stationed in Fort Jackson, South Carolina, who refused to train the legendary Green Berets on the grounds that they were admitted 'killers of peasant women and children.' After being court-martialed, Levy called on the ACLU for assistance, which arrived in the person of Chuck Morgan, legendary director of the ACLU's Southern Regional Office. Levy, an outspoken iconoclast, had been charged not only with disobeying orders, but also with making 'intemperate, defamatory, provoking, and disloyal statements' while in uniform.
The central legal issue for the ACLU was free speech: does the Bill of Rights apply to the military? Does a soldier have a right to speak openly about his views? The ACLU thought so, especially in light of a recent ruling by the U.S. Court of Military Appeals that the Miranda decision guaranteeing the right to counsel and other procedural safeguards applied to the armed forces.
In arguing Levy's case, the ACLU mounted a Nuremberg defense, arguing for perhaps the first time in a U.S. military court that U.S. troops had admitted to committing atrocities and that American soldiers can lawfully refuse to obey orders that would aid in war crimes. The court rejected the argument and Levy was sentenced to three years in prison and released after serving more than two years.
Although the ACLU did not succeed in keeping Levy from prosecution, the case and the attendant publicity did advance the question of freedom of speech for soldiers in uniform and focused the nation's attention on the rights of the men and women who serve our country, issues that continue to be the subject of debate and litigation to the present day.