United States v. Sergeant First Class ABDULLAH WEBSTER ( 2008 )

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
SCHENCK, ZOLPER, and WALBURN
Appellate Military Judges
UNITED STATES, Appellee
v.
Sergeant First Class ABDULLAH WEBSTER
United States Army, Appellant
ARMY 20040588
Headquarters, 1st Infantry Division
Robin L. Hall, Military Judge
Colonel Michael R. Snipes, Staff Judge Advocate (trial)
Lieutenant Colonel Stuart W. Risch, Staff Judge Advocate (post-trial)
For Appellant: James R. Klimaski, Esquire (argued); James R. Klimaski, Esquire;
Lynn I. Miller, Esquire; and Captain Edward Bahdi, JA (on brief); James R.
Klimaski, Esquire; and Captain Edward Bahdi, JA (on reply brief).
For Appellee: Captain Michael C. Friess, JA (argued); Captain Michael C. Friess,
JA; Major Tami L. Dillahunt, JA; and Colonel John W. Miller II, JA (on brief).
30 January 2008
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OPINION OF THE COURT
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SCHENCK, Senior Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of missing movement by design and disobeying a superior
commissioned officer (two specifications), in violation of Articles 87 and 90,
Uniform Code of Military Justice, 10 U.S.C. §§ 887 and 890 [hereinafter UCMJ]. 1
The military judge sentenced appellant to a bad-conduct discharge and fourteen
months confinement. The convening authority reduced the period of confinement to
eleven months and otherwise approved the sentence. This case is before the court
for review pursuant to Article 66, UCMJ.
1
The military judge granted the defense motion to merge the disobedience
specifications for purposes of sentencing.
WEBSTER – ARMY 20040588
Appellant asserts three assignments of error; two warrant discussion, but no
relief. First, appellant contends he “did not freely plead guilty because the Islamic
scholars he consulted prohibited him from serving in Iraq where he could kill fellow
Muslims.” We find appellant’s plea knowing, voluntary, and provident. Second,
appellant asserts the Religious Freedom Restoration Act of 1993, 42 U.S.C.
§ 2000bb [hereinafter RFRA], “provides precedent for invalidating” his guilty plea.
We will review appellant’s RFRA claim as an assertion that the Army infringed upon
his First Amendment right to free exercise of religion by requiring him to deploy in
support of Operation Iraqi Freedom. Assuming arguendo the Army substantially
burdened appellant’s exercise of religion, we nevertheless uphold the government
action because the Army acted in furtherance of a compelling government interest
and used the least restrictive means in furthering that interest. See Gonzales v. O
Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 423 (2006).
FACTS
Appellant, a forty-year-old combat engineer, enlisted in the Army in 1985.
Between 1990 and 1991, appellant deployed to the Middle East in support of
Operations Desert Storm and Desert Shield. Appellant converted to Islam in 1994
and, after his religious conversion, deployed with his Army unit to Bosnia in 1999
and Kosovo in 2002. In June 2004, appellant pleaded guilty and was found guilty of
missing movement (by design) to Iraq on 8 February 2004 for Operation Iraqi
Freedom, willfully disobeying an order from Captain (CPT) RH “to pack and deliver
his B-Bag by 14 January 2004,” and willfully disobeying an order from Major (MAJ)
DK “to prepare and load his [r]ucksack, A-Bag and B-Bag by 4 February 2004 . . . .”
2003 Deployment
In March 2003, appellant was informed his unit would probably deploy for
Operation Iraqi Freedom. Although appellant had doubts whether he should
participate in a war against Muslims due to his religious belief, he did not initially
submit a conscientious objector packet. Instead, appellant sought religious guidance
from Sheiks and Islamic scholars on the internet.
Appellant submitted a conscientious objector packet in August 2003, but
withdrew it on 25 September 2003 after discussing it with his battalion commander.
On or about 14 January 2004, CPT RH, appellant’s company commander, told
appellant that he would be deploying to Iraq and ordered appellant to pack and
deliver his “B bag.” Appellant failed to do so. On or about 4 February 2004, MAJ
DK, the rear detachment commander, ordered appellant to prepare and load his
rucksack, “A-bag,” and “B-bag.” Appellant did not comply with this order.
Appellant’s unit deployed to Iraq on 8 February 2004. Although appellant knew of
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the deployment, he missed the movement and filed a new conscientious objector
packet on the same day.
Motion to Abate the Court-Martial Proceeding
At appellant’s court-martial and prior to denial of appellant’s request for
conscientious objector status, the defense moved to abate the court-martial
proceeding until the request was processed. In support of his Motion to Hold Trial
in Abeyance, filed with the trial court on 6 May 2004, appellant included questions
other persons apparently posed to Islamic scholars on the internet and the responses
they received. In response to a question about Islam’s stance on self-defense, one
Islamic scholar replied, “[p]rotecting oneself and one’s honour, mind, wealth and
religion is a well-established basic principle in Islam. . . . A person has to defend
himself; it is not permissible for him to consume that which will harm him, and it is
not permissible for him to allow anyone to harm him.” Appellant also submitted
other purported scholarly opinions in support of his position that Muslim soldiers
were not permitted to participate in the war in Iraq. 2
In December 2003, appellant sought guidance on the internet about accepting
a non-combatant role, asking:
I am a Muslim currently serving in the armed forces . . . .
I had informed my superiors that I was not allowed to
place myself in a situation where I would have to fight
another Muslim. My employers have since arranged to
place me in a job where I will be assisting with the
rebuilding of essential amenities in Iraq such as restoring
clean water and electricity. What is the ruling for a
Muslim, to go to Iraq to assist with restoring services to
local Muslims?
Sheikh Muhammad Al-Mukhtar Ash-Shanqiti, Director of the Islamic Center
of South Plains, Lubbock, Texas, responded:
2
The opinions, dated March 2003, were obtained from an unidentified internet
website and were attributed to Sheikh Faysal Mawlawi, Deputy Chairman of the
European Council for Fatwa and Research, “Dr. ‘Ali Jum‘ah, Professor of the
Principles of Islamic Jurisprudence at Al-Azhar University,” and “Sheikh ‘Abdul-
Majeed Subh, a prominent Al-Azhar scholar.”
3
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First of all, you should know that Muslims who are
American citizens share the responsibility of defending
their country militarily. The issue is not to fight a Muslim
or not, but it is related to whether the war is legitimate or
not. If the war is just and you are fighting against an
aggressor, then you are allowed to join this war, whether it
is waged against Muslims or not. But if the war is not
legitimate, then you are not allowed to join it at any case,
whether you are fighting against Muslims or non-Muslims.
During the motions hearing, appellant’s defense counsel also elicited the
testimony of CPT AA, a Muslim chaplain who interviewed appellant regarding his
conscientious objector request. Captain AA spoke to appellant about serving in Iraq
as a non-combatant soldier and did not recall appellant stating that he refused to
serve in any capacity. Captain AA testified that there are three permissible reasons
for a Muslim to kill another Muslim: “[o]ne would be of an accident; two, would be
stoning the adulterer; three, would be in regards to retribution of justice.” He
averred the last category would allow Muslims to kill Muslims such as Osama Bin
Laden who “has created mischief and havoc that has harmed the greater Muslim
community.” Additionally, CPT AA testified that pursuant to retribution of justice,
a Muslim could kill another Muslim in self-defense. In fact, CPT AA stated
Muslims “would have to defend themselves in self-defense.” (Emphasis added).
According to CPT AA, Islamic scholars do not forbid Muslims from deploying to
Iraq altogether and have advised non-combatant soldiers “[i]f you do go; go, and it’s
better that you don’t pick up a weapon.”
Guilty Plea Inquiry
Appellant pleaded guilty to all charges and specifications. During the
providence inquiry, appellant told the military judge he intentionally missed the
movement because:
given the information that I received if I was to deploy it
would be as if I was to denounce my faith and I said that I
do not want to harm anybody or -- to me, I like to ensure I
do the best job as possible, and to me . . . it’s also
spiritual and I did not want to wrestle with this
downrange.
Appellant stated his decision was based upon his “limited” knowledge and his
review of the Koran. The following discussion ensued:
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MJ: And I understand and appreciate that struggle and I
think it’s a difficult one. . . . [I]n my review . . . of the
documents you’ve provided the court it indicated to me
that those soldiers who are faithful to the Islamic faith . . .
may be able to deploy in support of Operation Iraqi
Freedom, and may indeed have jobs that are not
inconsistent with their beliefs. At any rate, my ruling was
that, of course, that would not provide a defense to
disobeying the orders. . . . [D]o you understand that that’s
not a defense?
ACC: [Confers with counsel] Right. We spoke about it
. . . for my action -- if you ask me am I guilty or not . . .
but legally . . . for that I’m guilty.
During the providence inquiry, appellant admitted that he intentionally did not
deliver his equipment (B-bag) on 14 January, intentionally did not prepare and load
his rucksack, A-bag, and B-bag on 4 February, and intentionally missed movement
on 8 February. Appellant agreed he was legally guilty and did not have a defense to
disobeying the orders. In addition, the military judge explained the affirmative
defense of duress under Rule for Courts-Martial [hereinafter R.C.M.] 916(h). See
also Dep’t of Army, Pam. 27-9, Legal Services: Military Judges’ Benchbook, para.
5-5 (15 Sept. 2002). Appellant agreed this defense did not apply to his case.
After appellant’s unsworn statement during presentencing, the military judge
reopened the providence inquiry and again discussed the defense of duress with
appellant. The military judge then stated:
MJ: I want to go back to this issue of duress and whether
or not you felt so psychologically overpowered that you
were going to immediately suffer death or grievous bodily
harm if you didn’t disobey these orders and miss
movement. So, let me read you the full definition and
then I want you to tell me in your own words why you
think that doesn’t fit, okay?
The military judge then re-stated the requirement for the affirmative defense
of duress under R.C.M. 916(h). The following colloquy then ensued:
MJ: Do you want a moment to talk to [your defense
counsel]?
ACC: Yes, Your Honor.
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MJ: Go ahead.
[Accused and counsel confer]
ACC: With my understanding, Your Honor, is the -- as if
I was not threatened to not put my bags on the vehicle.
That’s----
MJ: So, in fact nothing was going to happen to you if you
didn’t put your bags on there, right?
ACC: At that moment, I didn’t, ma’am, -- Your Honor,
no.
MJ: And same thing with the missing movement?
ACC: Missing movement----
MJ: Which was the 8th of February.
ACC: Same answer.
MJ: Okay. So, I think what I hear you saying is that the
reference to the death sentence that [the] chaplain made
was sort of similar to what you and I talked about earlier
which was a whole series of events would have to happen
before you would be in any danger, correct?
ACC: To -- okay, here is how I understand it. No one has
had threatened me not to load the bags. With the
understanding of a death sentence is if I was to deploy
downrange I cannot engage in combat even if I am killed.
That’s----
MJ: So, and that is sort of what Chaplain [AA] was
saying at the end, is that what you are saying?
ACC: Yes, Your Honor.
MJ: Well, like the chaplain, I have no idea whether that is
the equivalent of committing suicide or not. But, it is
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certainly not the equivalent of something immediately
happening to you, is there -- is it?
ACC: No, Your Honor.
MJ: So, I mean the problem I have with the defense of
duress is if you were to raise the defense of duress, if you
had [pleaded] not guilty for example, all right, the law
requires that the danger has to be immediate.
ACC: Right.
MJ: And in this case I just don’t see an immediate danger,
do you?
ACC: Negative, Your Honor.
Before accepting appellant’s plea, the military judge asked appellant, “Do you
understand that even though you understand that you are guilty you have the legal
and moral right to plead not guilty and to place upon the government the burden of
proving your guilt beyond a reasonable doubt?” Appellant responded, “Yes, Your
Honor.” The military judge told appellant, “Take one last moment to consult with
[your defense counsel] and if you still want to plead guilty we’ll drive on.”
Appellant, after conferring with counsel, stated, “I’m ready, Your Honor.”
Presentencing Evidence 3
During presentencing, appellant did not discuss his religious research and did
not explain why he chose certain guidance. In his 7 May 2004 conscientious
objector statement, admitted at trial as extenuating and mitigating evidence,
appellant averred:
Based upon the advice given to me by Islamic Scholars
. . . the conclusions were:
1. Consensus was that this [sic] no Muslims are permitted
3
In asserting protection under the RFRA, appellate defense counsel draw our
attention to appellant’s presentencing evidence consisting of documents and the
testimony of appellant’s brigade commander, Colonel (COL) WH. We will consider
this evidence in assessing the burden on appellant’s free exercise of religion.
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to participate in this conflict.
2. Muslims are not allowed to kill another Muslim except
under three conditions . . . . Given the religious ruling,
any combatant role I undertake would jeopardize my belief
and place me in an unfavorable position on the Day of
Judgment.
Appellant further explained in this statement: “[m]y beliefs became [sic]
incompatible with military service when I was ordered to deploy to Iraq and become
a combatant soldier who would possibly have to take up arms against other
Muslims.” Although appellant noted he had inquired whether he could be assigned a
non-combatant role, appellant did not discuss COL WH’s offer to work directly with
the “Iraqi ministries of transportation, oil, power and public works.”
During presentencing, COL WH testified he explored the possibility of
appellant administratively separating from the military, but because the Army had
undergone a “stop-loss” policy, resignation was not an option. Colonel WH told the
court other Muslim soldiers had deployed with his brigade and served as
interpreters. Additionally, the brigade served as an interface for reconstruction
efforts and was aligned with the Iraqi Civil Defense Corps, a unit that includes Iraqi
Muslim soldiers, whose sole purpose is to “kill or capture enemy fighters who are
threatening the future of Iraq.” Colonel WH offered appellant a non-combatant role
with the brigade staff as a noncommissioned officer assistant who would work with
Iraqi oil ministers on construction projects. Appellant was initially excited about
this opportunity and COL WH declassified a briefing concerning the “mission of the
engineer brigade” and encouraged appellant to share the documents with the Islamic
scholars. Colonel WH testified appellant was a good noncommissioned officer, but
encountered problems when he “started drawing lines about whether he wanted to
serve or not . . . when [the] United States started doing missions in countries that
had Islamic people in it and that’s when [appellant] stopped his desire to serve,
despite his oath to the Constitution, [and] to the orders of the superiors over him.”
PROVIDENCE OF THE PLEA
Law
We review a military judge’s acceptance of a guilty plea for abuse of
discretion. United States v. Abbey, 63 M.J. 631, 632 (Army Ct. Crim. App. 2006)
(citing United States v. Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996)). Unless a
substantial basis in law and fact for questioning a guilty plea is revealed in our
review of the record of trial, we will not overturn a military judge’s acceptance of a
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guilty plea. United States v. Adams, 63 M.J. 223, 226 (C.A.A.F. 2006) (citing
United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991)).
If the accused sets up a matter inconsistent with his plea at anytime during the
court-martial proceeding, the military judge must either resolve the apparent
inconsistency by reopening the providence inquiry “or reject the plea.” United
States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007) (citing United States v. Garcia, 44
M.J. 496, 498 (C.A.A.F. 1996) (citing Article 45(a), UCMJ, and R.C.M. 910(h)(2))).
Additionally, when an inconsistent matter “reasonably raise[s] the question of a
defense . . . it [is] incumbent upon the military judge to make a more searching
inquiry to determine the accused’s position on the apparent inconsistency with his
plea of guilty.” United States v. Estes, 62 M.J. 544, 548 (Army Ct. Crim. App.
2005) (quoting United States v. Timmins, 21 U.S.C.M.A. 475, 479, 45 C.M.R. 249,
253 (1972)). However, “a mere possibility of a conflict [or an inconsistency] is not
a sufficient basis to overturn the trial results.” United States v. Phillippe, 63 M.J.
307, 309 (C.A.A.F. 2006) (internal quotations marks and citations omitted).
In determining whether “the providence inquiry provides facts inconsistent
with the guilty plea, we take the accused’s version of the facts ‘at face value.’”
United States v. Gilchrist, 61 M.J. 785, 791 (Army Ct. Crim. App. 2005) (quoting
United States v. Jemmings, 1 M.J. 414, 418 (C.M.A. 1976)); accord United States v.
Pajeaud, 63 M.J. 644, 645 (C.G. Ct. Crim. App. 2006) (“The accused’s . . .
statements are taken at face value; their credibility is not part of the analysis.”).
Elements of the Offenses
Article 87, UCMJ, provides the elements of missing movement are that the
accused: (1) “was required in the course of duty to move with a ship, aircraft or
unit;” (2) “knew of the prospective movement of the ship, aircraft or unit;” (3)
“missed the movement of the ship, aircraft or unit;” and (4) “missed the movement
through design or neglect.” Manual for Courts-Martial, United States (2002 ed.)
[hereinafter MCM], Part IV, para. 11b. “Design” is further defined as “on purpose,
intentionally, or according to plan and requires specific intent to miss the
movement.” Id. at Part IV, para. 11c(3).
In criminal law, intent and motive are not the same.
A person often acts with two or more intentions. These
intentions may consist of an immediate intention (intent)
and an ulterior one (motive), as where the actor takes
another’s money intending to steal it and intending then to
use it to buy food for his needy family . . . . It may be
said that, so long as the defendant has the intention
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required by the definition of the crime, it is immaterial
that he may also have had some other intention.
United States v. Huet-Vaughn, 43 M.J. 105, 113-14 (C.M.A. 1995) (quoting W.
LaFave and A. Scott, 1 Substantive Criminal Law § 3.5(d) at 313 (1986) (footnote
omitted)). Once intent has been proven, “it is immaterial that a defendant may also
have had some secondary, or even overriding, intent. If the intent is overriding --
that is, it reflects the ultimate end sought which compelled the defendant to act -- it
is more properly labeled a ‘motive.’” United States v. Kabat, 797 F.2d 580, 587 (8th
Cir. 1986) (internal citations omitted), cert. denied, 481 U.S. 1030 (1987).
Article 90, UCMJ, disobeying a superior commissioned officer requires: “(a)
That the accused received a lawful command from a certain commissioned officer;
(b) That this officer was the superior commissioned officer of the accused; (c) That
the accused then knew that this officer was the accused’s superior commissioned
officer; and (d) That the accused willfully disobeyed the lawful command.” MCM,
Part IV, para. 14b(2). Article 90, UCMJ, further provides: “[t]he order may not,
without [] a valid military purpose, interfere with private rights or personal affairs.
However, the dictates of a person’s conscience, religion, or personal philosophy
cannot justify or excuse the disobedience of an otherwise lawful order.” Id. at para.
14c(2)(a)(iii).
Duress Defense
Rule for Courts-Martial 916(h) explains the duress defense as:
a defense to any offense except killing an innocent person
that the accused’s participation in the offense was caused
by a reasonable apprehension that the accused or another
innocent person would be immediately killed or would
immediately suffer serious bodily injury if the accused did
not commit the act. The apprehension must reasonably
continue throughout the commission of the act. If the
accused has any reasonable opportunity to avoid
committing the act without subjecting the accused or
another innocent person to the harm threatened, this
defense shall not apply.
(Emphasis added). See also United States v. Washington, 57 M.J. 394, 397
(C.A.A.F. 2002) (discussing the duress defense under the UCMJ and R.C.M. 916(h));
United States v. Roby, 23 U.S.C.M.A. 295, 49 C.M.R. 544 (1975) (setting aside a
plea of guilty to absence without leave because defense of duress was reasonably
raised during providence inquiry).
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Conscientious Objector Status
Army Reg. 600-43, Conscientious Objection [hereinafter AR 600-43] (15 May
1998) “sets forth policy, criteria, responsibilities, and procedures to classify and
dispose of military personnel who claim conscientious objection to participation in
war in any form or to the bearing of arms.” Id. at para. 1-1. This regulation
indicates in pertinent part, however, that “requests by personnel for qualification as
a conscientious objector after entering military service will not be favorably
considered when [the] request [is] . . . [b]ased on objection to a certain war.” Id. at
para. 1-7a(4).
Unlike duress, conscientious objection is generally not a defense to the
offenses of failure to obey lawful orders or missing movement. Our superior court
many years ago reaffirmed that “conflict with religious scruples . . . [is] ‘insufficient
as a defence’ to a charge of disobedience.” United States v. Wilson, 19 U.S.C.M.A.
100, 101, 41 C.M.R. 100, 101 (C.M.A. 1969) (quoting William Winthrop, Military
Law and Precedents 576-77 (2d ed. 1920)). In that case, Private (PVT) Wilson
absented himself without leave after his application for discharge from the Army as
a conscientious objector was denied. In affirming PVT Wilson’s conviction, the
court stated:
Recently, we reviewed the dilemma of a person in the
military service who develops convictions of conscience
that conflict with his military duties. His position is like
that of the civilian whose religion or conscience is in
conflict with lawful orders of the Government. Speaking
of the latter, the Supreme Court of the United States has
said that to allow scruples of personal conscience to
override the lawful command of constituted authority
would in effect . . . permit every citizen to become a law
unto himself. . . . [T]he freedom to think and believe does
not excuse intentional conduct that violates a lawful
command. It may be that [appellant’s commander] should
have sought to persuade before resorting to the
tremendously powerful force of a direct command, but we
are not concerned with the wisdom of his action. If the
command was lawful, the dictates of the accused’s
conscience, religion, or personal philosophy could not
justify or excuse disobedience.
Wilson, 19 U.S.C.M.A. at 100-01, 41 C.M.R. at 100-01 (internal citations and
quotations omitted).
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In United States v. Stewart, our superior court further declared:
[C]laimed conscientious objection or a Secretary’s denial
of a discharge application by a conscientious objector is a
defense to a court-martial proceeding only if the
Constitution, a statute, or a regulation so provides. In this
instance there is no [C]onstitutional right to refuse
military orders because of conscientious objection; no
statutory provision makes conscientious objection or a
Secretary’s improper denial of a conscientious objector’s
discharge application a defense in a military trial and the
regulation permitting submission of discharge applications
by in-service conscientious objectors contains no authority
for the litigation of this issue at a court-martial.
20 U.S.C.M.A. 272, 276, 43 C.M.R. 112, 116 (C.M.A. 1971).
Relying on this statement of the law, the court, in United States v. Lennox,
held that even erroneous action on a conscientious objector application would not
“operate to end the obligation of a member of the armed forces to obey orders that
are otherwise lawful.” 21 U.S.C.M.A. 314, 319, 45 C.M.R. 88, 93 (1972). More
recently, our superior court cited Lennox for the proposition that “where the
conscientious objector regulation creates no right to refuse military duties, its
violation creates no defense to missing movement or disobedience of orders.”
United States v. Walker, 41 M.J. 462, 468 (C.A.A.F. 1995).
Analysis 4
Appellate defense counsel now assert the military judge erred in accepting
appellant’s plea because he “did not freely plead guilty” and appellant’s “guilty plea
was irregular and not freely given because the Islamic scholars . . . forbade
4
We limit the scope of our review of appellant’s unconditional guilty plea to the
guilty plea inquiry and any presentencing evidence appellant may present which is
inconsistent with his plea. See United States v. Harding, 61 M.J. 526, 529-30 (Army
Ct. Crim. App. 2005) (holding the government cannot use sentencing testimony to
support the providence of a guilty plea); R.C.M. 910(h)(2) (stating if an accused
presents sentencing evidence which is inconsistent with the plea, the military judge
must reopen the providence inquiry and resolve the inconsistency).
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[appellant] from deploying to Iraq [and] doing so would condemn [appellant] to
hell.”
Appellant does not now contend the military judge erred by failing to discuss
potential defenses such as duress; nor does appellant assert the orders he received
were unlawful 5 or that his conscientious objector request was improperly denied.
We do not find that appellant “set[] up [any] matter raising a possible defense” and
we note that if any defense was raised, the military judge’s inquiry appropriately
“resolve[d] any apparent ambiguity or inconsistency.” Phillippe, 63 M.J. at 310.
The military judge informed appellant of the defense of duress and confirmed
appellant did not miss movement and violate the lawful orders because he feared
immediate death or serious bodily injury.
Additionally, appellant “has cited us to no [C]onstitutional or statutory
provision that makes conscientious objection, a pending application for that status,
or . . . violation of the procedures for considering that status, a defense to a court-
martial for missing movement or disobeying otherwise lawful orders . . . .” United
States v. Johnson, 45 M.J. 90, 92 (C.A.A.F. 1996). “[S]imilarly, we see no authority
for a self-help remedy of disobedience.” Id. Furthermore, AR 600-43, para. 1-7a(4)
provides, conscientious objector requests made by personnel “after entering military
service will not be favorably considered when [they] are . . . [b]ased on objection to
a certain war.” Appellant’s “asserted religious beliefs, on the other hand, only
forbad him from killing other Muslims, not from war in general.” Walker, 41 M.J. at
471 n.* (Cox, J., concurring).
5
Appellant has not asserted and we do not find that his orders to deploy were “given
for an illegal purpose.” See generally United States v. Womack, 29 M.J. 88(A.C.M.R. 1989) (a “safe-sex” order was not illegal because its purpose was to
safeguard the overall health of service members to ensure military readiness).
Additionally, we would find a more general challenge to the legality of the war in
Iraq also to be without merit. Courts have consistently declined to rule on the
Constitutionality of the President’s decision to deploy the Armed Forces as a
“nonjusticiable political question” where “judicial intervention is deemed
inappropriate.” United States v. New, 55 M.J. 95, 108 (C.A.A.F. 2001).
Furthermore, a “personal belief that an order is unlawful cannot be a defense to a
disobedience charge.” Id. at 109 (citing Huet-Vaughn, 43 M.J. at 114 (holding “the
duty to disobey an unlawful order applies only to a positive act that constitutes a
crime that is so manifestly beyond the legal power or discretion of the commander as
to admit of no rational doubt of their unlawfulness.” (internal quotation marks and
citation omitted)).
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Although appellant does not assert defenses were raised and unresolved, he
does contend his plea was involuntary and the plea inquiry discussion between
appellant and the military judge “evidences a lack of intent.” We disagree. As our
court previously noted:
In no other segment of our society is it more important to
have a single enforceable set of standards. . . .
[Appellant’s] decision was based on his own set of values
and priorities. . . . If conscious regard was given by the
appellant to the impact his choice would have on readiness
or his fellow soldiers, it is not reflected in the record. To
now authorize an after-the-fact judicial review on the
merits of those personal values has no place in the military
justice system.
United States v. Banks, 37 M.J. 700, 702 (A.C.M.R. 1993) (noting that such matters
“would certainly be appropriate in extenuation and mitigation on sentencing”).
At trial, appellant pleaded guilty to missing movement by design, which
requires “specific intent to miss the movement.” MCM, Part IV, para. 11c(3).
Appellant admitted he intentionally failed to move with his unit on 8 February 2004
in support of Operation Iraqi Freedom. Additionally, appellant pleaded guilty to
willfully failing to obey a lawful order, another specific intent offense. MCM, Part
IV, para. 20c(2)(e). Appellant admitted he intentionally failed to deliver his
equipment (B-bag) on 14 January 2004 and intentionally failed to prepare and load
his rucksack, A-bag and B-bag on 4 February 2004, willfully violating both orders.
It is irrelevant that appellant missed movement or failed to obey the orders of
his superior commissioned officers based on religious motives. See Huet-Vaughn,
43 M.J. at 114; United States v. Johnson, 24 M.J. 101, 106 (C.M.A. 1987) (“the
accused’s purpose and motive—anger, resentment, or whatever—are immaterial”);
United States v. Moylan, 417 F.2d 1002, 1004 (4th Cir. 1969) (motive not relevant to
“willful intent . . . but . . . an element proper for the judge’s consideration in
sentencing”), cert. denied, 397 U.S. 910 (1970). Whether appellant missed
movement “because of moral or ethical reservations, [his] beliefs” are also
immaterial “because they did not constitute a defense.” Huet-Vaughn, 43 M.J. at
114 (emphasis added). See MCM, Part IV, para. 14c(2)(a)(iii); Moylan, 417 F.2d at
1008 (“[E]xercise of a moral judgment based upon individual standards does not
carry with it legal justification or immunity from punishment for breach of the
law.”). We see no reason why the same logic would not apply to religious
reservations—especially in the present case, where no defense of duress exists and
the evidence sufficiently established intent. Appellant does not argue why a
religious motive should be treated differently from other motives. Moreover, to the
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extent that appellant missed movement because he felt “it was necessary to avoid a
greater evil, [such] evidence was irrelevant [and] did not support a [duress] defense”
because such a defense required that the accused “had no alternative but to break the
law.” Huet-Vaughn, 43 M.J. at 114 (finding appellant’s motive to avoid a “greater
evil” was irrelevant absent a valid necessity or justification defense). Accordingly,
we hold that appellant made a knowing, voluntary, and provident plea of guilty.
FREEDOM OF RELIGION
Law
Appellant also raises his right to freely exercise his religion under the RFRA
as a basis for our court to overturn his guilty plea. Rather than determine whether
appellant’s unconditional guilty plea waived any statutory protection under the
RFRA, we will consider appellant’s argument as a claim his First Amendment rights
were violated. 6 The Free Exercise Clause of the First Amendment to the
Constitution indicates the government cannot “prohibit[] the free exercise” of
religion. Historically, the Supreme Court drew a distinction between religiously
motivated conduct—which may be restricted based on a legitimate secular concern
even if a citizen’s free exercise is affected—and religious belief. See Reynolds v.
United States, 98 U.S. 145 (1879) (upholding statute prohibiting bigamy where law
interfered with religious practices, not religious beliefs and opinions); West Virginia
Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (holding government cannot control
beliefs and stating, “If there is any fixed star in our [C]onstitutional constellation, it
is that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion or other matters of opinion or force citizens to confess by word
or act their faith therein.”).
6
Under the facts of this case, we will review appellant’s Constitutional challenge to
his convictions de novo. See United States v. Bart, 61 M.J. 578, 581 (N.M. Ct.
Crim. App. 2005) (allowing appellant to raise a Constitutional challenge to a
sodomy conviction for the first time on appeal); United States v. Sollmann, 59 M.J.
831, 834 (A.F. Ct. Crim. App. 2004) (citing Menna v. New York, 423 U.S. 61 (1975))
(“a guilty plea does not preclude a [C]onstitutional challenge to the underlying
conviction”); but see United States v. Heath, 39 M.J. 1101, 1101 (C.G.C.M.R. 1994)
(applying the principle of waiver for a Constitutional challenge to a guilty plea
conviction raised for the first time on appeal); United States v. Collins, 41 M.J. 428,
430 (C.A.A.F. 1995) (applying waiver for a double jeopardy challenge to a guilty
plea because the “existing record” was not sufficiently developed).
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The Supreme Court subsequently developed a framework to analyze whether a
government action justifiably infringed on a citizen’s free exercise of religion. That
standard framework, however, has fluctuated. In 1963, the Court determined a state
had to have a “compelling state interest” and not merely “a relationship to some
colorable state interest” before it could burden the free exercise of religion by
requiring a Seventh-Day Adventist to work on the Sabbath day of her faith. Sherbert
v. Verner, 374 U.S. 398, 406 (1963). Nearly a decade later in a challenge to a
compulsory public school attendance law by Amish parents, the Supreme Court
again rejected the notion that “religiously grounded conduct is always outside the
protection of the Free Exercise Clause.” Wisconsin v. Yoder, 406 U.S. 205, 219-20
(1972). In overturning the conviction, the Court determined “it was incumbent on
the State to show with more particularity how its admittedly strong interest in
compulsory education would be adversely affected by granting an exemption to the
Amish.” Id. at 236.
In Thomas v. Review Bd. of the Indiana Employment Security Div., 450 U.S.
707, 718 (1981), the Supreme Court established that the “state may justify an inroad
on religious liberty by showing that it is the least restrictive means of achieving
some compelling state interest.” Not long after, the Court rejected this “compelling
state interest test,” replacing it with a less stringent standard in Employment Div.,
Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). Reaffirming their
holding in Reynolds, the Court stated “the right of free exercise does not relieve an
individual of the obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his
religion prescribes (or proscribes).’” Id. at 879 (internal citations omitted).
Congress specifically responded to the Smith holding in 1993 with the RFRA,
by reestablishing the “compelling state interest test” set forth in Verner and Yoder. 7
In the RFRA, Congress found in part:
[G]overnments should not substantially burden religious
exercise without compelling justification; . . . the Supreme
Court virtually eliminated the requirement that the
government justify burdens on religious exercise imposed
by laws neutral toward religion; and . . . the compelling
interest test as set forth in prior Federal court rulings is a
workable test for striking sensible balances between
7
Although not specifically mentioned in the RFRA, the Supreme Court also set forth
the compelling government interest test in its 1981 Thomas opinion. See Thomas,
450 U.S. at 718.
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religious liberty and competing prior governmental
interests.
42 U.S.C. § 2000bb(a).
Congress intended “to restore the compelling interest test . . . and to guarantee
its application in all cases where free exercise of religion is substantially burdened;
and . . . to provide a claim or defense to persons whose religious exercise is
substantially burdened by government.” Id. With the RFRA, “Congress has
determined that courts should strike sensible balances, pursuant to a compelling
interest test that requires the Government to address the particular practice at issue.”
Gonzales, 546 U.S. at 439.
Deference to the Military
The Supreme Court “has long recognized that the military is, by necessity, a
specialized society separate from civilian society.” Parker v. Levy, 417 U.S. 733,
743 (1974). By necessity, the military has “developed laws and traditions of its own
during its long history. The differences between the military and civilian
communities result from the fact that ‘it is the primary business of armies and navies
to fight or be ready to fight wars should the occasion arise.’” Id. (quoting United
States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955)).
Prior to Congress imposing the RFRA compelling government interest (strict
scrutiny) standard, the Supreme Court had previously provided guidance regarding
how courts should review a servicemember’s claim that a military requirement
burdened his right to freely exercise his religion. In Goldman v. Weinberger, 475
U.S. 503 (1986), the Court afforded deferential treatment of military necessity and
upheld the military’s religiously neutral uniform restriction which infringed free
exercise rights, even though the Court was applying a strict scrutiny standard. 8
Captain (Capt.) Goldman, an Air Force rabbi serving as a clinical psychologist, wore
his yarmulke indoors even though the Air Force regulation prohibited wearing
headgear indoors. Id. at 505. After refusing an order to comply with the Air Force
regulation and receiving a letter of reprimand, Capt. Goldman sued claiming the
regulation infringed on his First Amendment free exercise of his religious rights. Id.8
Congress subsequently responded to the Goldman decision by prescribing that “a
member of the armed forces may wear an item of religious apparel while wearing the
uniform,” unless “the wearing of the item would interfere with the performance [of]
military duties [or] the item of apparel is not neat and conservative.” Armed Forces
Act, 10 U.S.C. § 774(a)-(b) (2003).
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at 505-06. The Supreme Court upheld the military restriction (i.e., the burden)
imposed on religious freedom stating:
Our review of military regulations challenged on First
Amendment grounds is far more deferential than
[C]onstitutional review of similar laws or regulations
designed for civilian society. The military need not
encourage debate or tolerate protest to the extent that such
tolerance is required of the civilian state by the First
Amendment; to accomplish its mission the military must
foster instinctive obedience, unity, commitment, and esprit
de corps. The essence of military service is the
subordination of the desires and interests of the individual
to the needs of the service. . . . [W]ithin the military
community there is simply not the same [individual]
autonomy as there is in the larger civilian community. In
the context of the present case, when evaluating whether
military needs justify a particular restriction on religiously
motivated conduct, courts must give great deference to the
professional judgment of military authorities concerning
the relative importance of a particular military interest.
Id. at 507 (internal citations and quotations omitted). The Goldman decision
instructs courts to apply judicial deference when strictly scrutinizing the military’s
burden on the free exercise of religion. Id. Furthermore, “[judicial] deference . . .
is at its apogee when legislative action under the congressional authority to raise and
support armies and make rules and regulations for their governance is challenged.”
Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
Army Policy
Army policy pertaining to accommodating soldiers’ free exercise rights is
described in Army Reg. 600-20, Army Command Policy [hereinafter AR 600-20],
para. 5-6a (13 May 2002), which provides:
The Army places a high value on the rights of its soldiers
to observe tenets of their respective religious faiths. The
Army will approve requests for accommodation of
religious practices unless accommodation will have an
adverse impact on unit readiness, individual readiness,
unit cohesion, morale, discipline, safety, and/or health.
As used in this regulation, these factors will be referred to
individually and collectively as “military necessity” unless
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otherwise stated. Accommodation of a Soldier’s religious
practices must be examined against military necessity and
cannot be guaranteed at all times.
Army unit commanders have the responsibility to evaluate and approve or
disapprove requests from soldiers for accommodation of religious practices. Id. at
para. 5-6f.
The Army divides requests for religious accommodation into five categories:
worship practices, dietary practices, medical practices, wear and appearance of the
uniform, and personal grooming. Id. at para. 5-6g. The regulation further provides
specific guidance for commanders to follow in processing requests for religious
accommodation. Id.Analysis
Appellant asserts “[t]he irreconcilable choice that the Army forced upon [him]
constituted the prohibited ‘substantial burden’ upon his free exercise of religion.
The Army therefore cannot justify its criminal prosecution of [him] under the
compelling interest test of the [RFRA].” The government argues the Army did not
substantially burden appellant’s free exercise of his religion because he “could have
deployed to Iraq in a non-combatant role, but he [chose] not to accept this offer” and
“any miniscule burden on appellant’s exercise of religion was in the furtherance of
the national defense, a compelling governmental interest.” Applying the higher
compelling government interest test to analyze appellant’s First Amendment claim
rather than the Supreme Court’s less stringent “valid and neutral law of general
applicability,” we generally agree with the government. Smith, 494 U.S. at 880.
The Army required appellant, a devout Muslim, to deploy with his unit in
support of Operation Iraqi Freedom. The Army has set forth procedures for
addressing the free exercise of religion in such cases. Soldiers attempting to avoid
such a deployment may request conscientious objector status. Army policy also
supports “requests for accommodation of religious practices unless accommodation
will have an adverse impact on unit readiness, individual readiness, unit cohesion,
morale, discipline, safety, and/or health,” and the aforementioned factors are
collectively referred to as those of “military necessity.” AR 600-20, para. 5-6. In
appellant’s case, the command also attempted to give appellant the opportunity to
deploy in a non-combatant position. The parties, however, disagreed as to whether
such a position would satisfy appellant’s religious requirements.
Nevertheless, we need not decide whether such requirements posed a
substantial burden on appellant’s free exercise of religion. We do not conclude,
therefore, the government substantially burdened appellant’s right to exercise his
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freedom of religion. Assuming arguendo the government did so, however, we find
the Army action furthered a compelling government interest using the least
restrictive means. Moreover, while strictly scrutinizing the Army’s burden on free
exercise of religion, we apply judicial deference to “the professional judgment of
military authorities concerning the relative importance of a particular military
interest.” Goldman, 475 U.S. at 507.
The Army has a compelling interest in requiring soldiers to deploy with their
units. As the Supreme Court has said, “[i]t is ‘obvious and unarguable’ that no
governmental interest is more compelling than the security of the Nation.” Haig v.
Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S.
500, 509 (1964)). The Army’s primary mission is to maintain national security by
fighting and winning our nation’s wars. See Dep’t of Army, Field Manual 1, ch. 1
(14 June 2001). The Army cannot accomplish this primary mission if it cannot
deploy, in a state of military readiness, the various units into which it is organized.
Giving soldiers the option to decide selectively whether they wish to participate in
particular military operations would undermine the readiness of all units to deploy,
and thus compromise the Army’s mission and national security. See Wickham v.
Hall, 12 M.J. 145, 151 (C.M.A.1981) (reasoning that absent soldiers necessarily
“diminish the unit’s readiness and capability to perform its mission”). For this very
reason, the UCMJ provides for substantial punishments for offenses, such as
desertion, unauthorized absence, and missing movement, that undermine unit
readiness. MCM, Part IV, paras. 9(e), 10(e), and 11(e); see generally MCM,
Analysis of the Punitive Articles, app. 23 at A23-4 (explaining that “[t]he major
reliance of the armed forces on rapid deployment and expeditious movement of
personnel and equipment to deter or prevent the escalation of hostilities dictates that
these offenses be viewed more seriously”).
In this case, the Army furthered its compelling interest in the least restrictive
manner possible. Although the Army required appellant to deploy with his unit, the
Army made numerous allowances for him. The Army afforded him the opportunity
to request relief as a conscientious objector. See AR 600-43. The Army gave him
the right to request reasonable accommodation of his religious practices. See AR
600-20, para. 5-6. Finally, although apparently not required to do so by any
regulation, appellant’s commander generously allowed appellant to deploy with his
unit in a non-combatant role. We conclude that the First Amendment does not
require anything more, and appellant’s rights have not been violated. 9
9
Our decision is consistent with the Supreme Court’s decision in Gonzales, where
the government failed to demonstrate a compelling interest in the uniform
application of the Controlled Substance Act without an exception for a particular
(continued . . .)
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As the Supreme Court has stated, “to accomplish its mission the military must
foster instinctive obedience, unity, commitment, and esprit de corps.” Goldman, 475
U.S. at 507. In Parker v. Levy, the Supreme Court elaborated on the unique
requirements needed for an effective military:
In In re Grimley, 137 U.S. 147, 153 (1890), the Court
observed: “An army is not a deliberative body. It is the
executive arm. Its law is that of obedience. No question
can be left open as to the right to command in the officer,
or the duty of obedience in the soldier.” More recently we
noted that “the military constitutes a specialized
community governed by a separate discipline from that of
the civilian,” Orloff v. Willoughby, 345 U.S. 83, 94
(1953), and that “the rights of men in the armed forces
must perforce be conditioned to meet certain overriding
demands of discipline and duty . . . .” Burns v. Wilson,
346 U.S. 137, 140 (1953) (plurality opinion). We have
also recognized that a military officer holds a particular
position of responsibility and command in the Armed
Forces . . . .
(. . . continued)
drug which a church desired to use in religious services. 546 U.S. at 436-37.
However, not all governmental programs must have religious exceptions. The Court
noted in Gonzales, “We have no doubt that there may be instances in which a need
for uniformity precludes the recognition of exceptions to generally applicable laws
under RFRA.” Id. at 436. “[T]he Government can demonstrate a compelling interest
in uniform application of a particular program by offering evidence that granting the
religious exemption would seriously compromise its ability to administer the
program.” Id. at 435. For the reasons set forth in our opinion, the government has
demonstrated this compelling interest in having a uniform rule that soldiers deploy
with their units. By way of contrast, we recognize that not all Army requirements
are as compelling as insisting that soldiers deploy with their units. See, e.g.,
Hartman v. Stone, 68 F.3d 973, 986 (6th Cir. 1995) (concluding the Army did not
have a compelling interest in banning all religious practices in an on-post day care
program).
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417 U.S. at 743. “The inescapable demands of military discipline and obedience to
orders cannot be taught on battlefields; the habit of immediate compliance with
military procedures and orders must be virtually reflex with no time for debate or
reflection.” Chappell v. Wallace, 462 U.S. 296, 300 (1983).
CONCLUSION
Appellant voluntarily enlisted in the Army and was obligated to deploy with
his unit.
His attempted self-emancipation from some, or all, of the
obligations that he willingly incurred by virtue of that
enlistment contract with the United States Government,
prior to the termination thereof, may not now be excused
upon the basis of subsequently acquired religious beliefs.
His choice of religions remains inviolate. However his
conduct involved in the exercise thereof “remains subject
to regulation for the protection of Society.”
United States v. Cupp, 24 C.M.R. 565, 572 (A.F.B.R. 1957) (quoting Cantwell v.
Connecticut, 310 U.S. 296, 304 (1940)).
To the extent that a military man’s freedom of conduct in
practicing his religion is curtailed by the demand that he
obey proper orders, that curtailment is a permissible result
of the operation of a government under law. We hold that
the accused had no legal right or privilege under the First
Amendment to refuse obedience to the order[s], and that
the order[s were] not given for an illegal purpose.
United States v. Burry, 36 C.M.R. 829, 831 (C.G.B.R. 1966) (affirming a finding of
guilty to disobeying a lawful command where a ship’s cook refused to cook on his
religious Sabbath). See footnote 5, supra. Rather, those orders furthered a
compelling interest by the least restrictive means.
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The findings of guilty and sentence are affirmed.
Judge ZOLPER and Judge WALBURN concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
23