The New Republic, May 24, 1969
FOR THREE-AND-A-HALF million American citizens in uniform, justice is what the brass say it is, damn the Constitution and full speed ahead.
Pfc. Daniel F. Amick and Private Kenneth W. Stolte, Jr. found this out the hard way. Amick met Stolte during basic training at Ford Ord, the Army’s massive infantry training complex that sprawls across the sandy expanses near Monterey, California. Both came from small towns in southern California. Each had attended a local college for about a year before being drafted in 1967. Neither had ever been politically active or given much thought to the Vietnam war.
At Fort Ord, Amick and Stolte were good soldiers. They got through basic without a growl or a reprimand; their unit supervisors rated them highly for integrity and efficient performance of duty. What brought the two GI’s together and made them friends was a common interest in reading and talking about spiritual matters. When they had time off, they enjoyed going down to the post library. They read and discussed books on Zen Buddhism, the Bible and Mahatma Gandhi’s writings.
As time passed and it seemed probable they would be sent to fight in Vietnam, their reading turned toward matters of foreign policy. Newspapers at the base carried reports of statements by generals and Senators that were critical of U.S. policy. Amick and Stolte began to believe, themselves, that the war made little sense.
One night they went to the library to meet a friend who worked there. He told them to go into a back room and wait until he got off duty. In the back room was a typewriter and a mimeograph machine. To kill time, Stolte sat down at the typewriter and began knocking out a statement of personal belief. When he was finished he showed it to Amick.
“What do you think?” asked Stolte
Amick said he pretty much agreed with it.
It was rough and not very well written but they decided to sign it and run off about zoo copies on the mimeograph machine.
The statement was innocuous enough by normal civilian standards. It did not encourage victory for the Vietcong or defeat of the United States. It did not urge the violation of any law or the disobeying of any order. It expressed pretty much the same sentiments that Senator Eugene McCarthy was then voicing in his challenge of President Johnson.
“We protest the war in Vietnam,” the leaflet began. “We know that war will never bring about peace. Peace can only be obtained through peaceful means…Do the American people want this war? Do we, who must actively participate, have any desire for this war? Then why do we have it?” The leaflet concluded by urging others who “want to work for peace” to contact Stolte and Amick so that together they could “express our dissension and grievances.”
Around 8 o’clock on the evening of February 21, 1968, Stolte and Amick, in civilian clothes, walked to the Third Brigade chapel and began handing out their leaflet to passing GI’s. They tacked some on telephone poles and left when they got rid of all their copies.
A few days later they were arrested and charged with two violations of the Uniform Code of Military Justice. One alleged that, in violation of Article 81 of the UCMJ, they had conspired to “publicly [utter] disloyal statements.” The second charge, under the incredibly vague Article 134 of the UCMJ, alleged that Stolte and Amick, “with design to promote disloyalty and disaffection among the troops and the civilian populace,” issued their statement, “which statement was disloyal to the United States.”
THEIR THREE-DAY general court-martial last May, held not far from the barracks-like building where 14 prisoners from the San Francisco Presidio are currently being tried for mutiny, was such a travesty of justice that only in the military could it have been conducted in such secluded efficiency and have escaped public criticism.
The motion by the defendants’ civilian attorney, Francis Heisler, to dismiss the charges on the grounds that the accused had done nothing more than exercise their constitutionally protected rights of freedom of speech, freedom of assembly, and the right to petition for redress of grievances, was summarily denied by the military law officer (judge). All members of the court-martial panel were ribbon-bedecked officers who either shared the commanding general’s outlook on dissenters or knew full well what was good for their future advancement in the military. For the prosecution, it was enough to establish that Amick and Stolte had printed and distributed the leaflet. The defendants, who had signed their names and serial numbers to the handbill and never tried to be stealthy, readily admitted responsibility for the document.
There was no attempt by the prosecution to establish that Amick and Stolte had shared a “design” to promote disloyalty and disaffection among the troops and the civilian populace, no evidence introduced that they had actually promoted any such disloyalty or disaffection, no effort to prove that the leaflet or any phrase in it was “disloyal to the United States.” Indeed, during cross-examination, all of the prosecution witnesses who had read the leaflet admitted that their encounters with the defendants’ mimeographed prose did not cause in them the slightest twinge of disloyal or disaffected feelings.
Amick, testifying in his own defense, said he did not believe he was committing an offense when he prepared the leaflet because he grew up in America believing he had certain rights and was never told when he entered the Army that he had lost them. “In this country the government is — well, the government is by the people, for the people, and of the people; and the people are the ruling voice through their representtatives, and any individual has the right to speak out for or against government policy. And the minority is protected by the rights of the First Amendment.”
He said he did not feel at all disloyal to the United States, and had no desire of bringing about disloyalty in others. He had read statements by Generals Shoup and Gavin against the war in Vietnam and it never occurred to him that their statements might be disloyal. He said he had never ceased to perform his duty in the Army, and that neither he nor Stolte advocated that anyone else not perform assigned duties.
Stolte’s account was much the same. At the time he prepared the leaflet he never felt he would be court-martialed since he did not believe he was breaking any law. He had always been taught that Americans could express their opinions, and he believed if anybody should express his views on the Vietnam war, it should be the soldiers who have to fight it.
The court-martial found the two men guilty on both charges and sentenced them to four years at hard labor, forfeiture of all pay and allowances, and dishonorable discharge from the Army. In a burst of generosity, the commanding general at Fort Ord, Maj. Gen. Thomas A. Kenan, reduced the confinement at hard labor to three years instead of four. Heisler is now appealing the conviction before a board of review in the Judge Advocate General’s office in Washington. Meanwhile, Amick and Stolte are in the Fort Leavenworth stockade. There is no such thing as bail for American soldiers accused of promoting disloyalty and disaffection.