Scholarship Saturday: Blessed be the tie that binds – resubordinating the military to civil authority

By Isaac Kennen

Scholarship Editor
www.caaflog.org

It is common to say, as the Congressional Research Service said just last year, that the American military “is ultimately subordinate to civilian authority.” However, it would be more accurate to say that the American military is, and must continually be, against its will, actively subordinated to civilian authority. Frederick Douglass famously said, “power concedes nothing without a demand.”

The subordination of something so powerful as the American military endures only so long as our civilian authorities continue to insist upon it. Our Founders recognized this and insisted that constant and concerted action is required if civil authorities are to keep the military at heel, or else the “constant apprehension of War, has the . . . tendency to render the head too large for the body.” (James Madison, 1787). As Samuel Adams explained, “a wise and prudent people will always have a watchful and jealous eye” over their military.

Maintaining civilian supremacy over a force that is custom-built to overrun the will of both militaries and civil governments is no easy task. To maintain liberty, any civilian government must be constantly on the lookout for signs of insubordination in its military apparatus. When insubordination is observed, as it inevitably will be, the civil government must act quickly and decisively to reassert supremacy. But, it is sometimes true that insubordination can be difficult to discern. For example, back in June 2020, when the Secretary of Defense said governors should “dominate the battlespace” and suppress rioting American civilians, he was probably just bleeding military jargon into common discourse at a time of great friction. Under those circumstances, a watchful and jealous eye might be forgiven for not immediately acting to bring the “dogs of war” to heel, even if the Secretary’s statement was enough to concern a former Chairman of the Joint Chiefs of Staff.

Likewise, a civil authority on the watch for insubordination in the military might have seen cause for concern by the use of National Guard helicopters to execute a show of force against rioters in June 2020, or the use of tear gas and rubberbullets against protestors to allow for a Presidential photo-op that same month. That latter activity was, after all, something the Chairman of the Joint Chiefs of Staff has apologized for. But, as this Congressional Research Service report shows, volumes could be devoted to divining and parsing the ever so fine lines between lawful support to civil authorities during periods of unrest and violating the posse comitatus act. So, it is perhaps understandable that those occurrences did not inspire a firm hand. But, the same cannot be said for the Capitol Insurrection. Civil authorities should be equally angry and frightened to learn that military-affiliated personnel were so disproportionately represented in the force that attacked the Capitol on January 6, 2021.

The involvement of military-affiliated persons in the Capitol assault was so pronounced that it has caught the attention of counter-terrorism experts. One such entity, the George Washington University Program on Extremism, has spent the last 6 years primarily focusing on the threat that Islamic Fundamentalism poses to the West. It has published 6 books, 15 reports, 16 policy papers, and over 75 scholarly articles that predominately deal with the activities of Islamic jihadists at home and abroad. But, in an April 2020 report, the Program started turning its attention in earnest to the threat posed by right-wing groups in the United States. A second report in October 2020 explored the prevalence of antisemitism and white supremacy among right wing extremist groups that employ violence. In that same vein, last week the Program issued its latest report: “This is Our House!” A Preliminary Assessment of the Capitol Hill Siege Participants. This latest report examines, in depth, the biographical data for the 257 individuals who, as of February 25, 2021, have been charged in federal court for their crimes during the Capitol assault. That study makes a key finding:

Program on Extremism researchers were able to identify 33 individuals with military backgrounds. These included 31 veterans, 1 current member of the National Guard, and 1 current member of the Army Reserves. 36% of individuals with military backgrounds also had concrete ties to various extremist organizations, including the Proud Boys (7), Oath Keepers (4), and Three Percenters (1).

To put things in perspective, of all adults in the United States in 2019, veterans only accounted for 6.9 percent. Yet, as the Program on Extremism found, as detailed in the quote above, they accounted for 12 percent of individuals being charged with federal crimes committed during the Capitol Insurrection. That is a cause for grave concern by civil authorities who would like to maintain supremacy over their military establishment. Even more concerning is the fact that so many of these individuals with a military background were tied to extremist organizations, as opposed to being merely part what the Report calls “organized clusters” (usually comprised of family members, friends, and acquaintances), or individual “inspired believers.” Extremist organizations such as the Proud Boys, Oath Keepers, and Three Percenters are more concerning, according to the Program’s report, because they “represented the apex of organizational planning by domestic violent extremist groups for and on January 6th.” Specifically, these “militant networks”:

[W]ere characterized by hierarchical organization and chains of command. . . . Unlike individuals in the other categories, not only did these militant networks plan to attend protests on the 6th, but they are also alleged to have planned in advance to breach the Capitol and, in many cases, conduct violence inside the walls of the building.

The military establishment has expressed concern over the apparent links between so many military-affiliated individuals and the “militant networks” that carried out what the Program on Extremism characterized as “a domestic violent extremist attack” on our Nation’s seat of government on January 6. The Secretary of Defense has directed a one-day “stand down.” It is promised, however, as the DoD Press Secretary explained, that:

He understands that a one-day stand-down across the force isn’t going to solve everything, but it might bring to light concerns and experiences.

Readers may wonder: other than a “stand down,” what can be done about the apparent ties between military members or former members and domestic terror groups? Answers to that question are offered by a recent article published in Just Security by Yale Law School Senior Research Scholar Eugene Fidell and Southwestern Law School Professor Rachel VanLandingham: Military Personnel and the Putsch at the U.S. Capitol

Professors Fidell and VanLandingham contend that military personnel and regular retirees who participate in attacks like the one which occurred on January 6 are subject to court-martial for the offense of sedition under Article 94(a)  – which punishes not only participating in such attacks, but also punishes personnel who “fail to do their utmost to prevent and suppress sedition committed in their presence.” The authors further point out that military members would be subject to a slew of other offenses depending on their conduct during such uprisings. Such allegations might include communicating a threat, riot or breach of the peace, willfully and unlawfully destroying a public record, larceny and wrongful appropriation, assault, burglary and unlawful entry, obstruction of justice, or violations of the general article for conduct that is prejudicial to good order and discipline or service-discrediting. Ultimately, though, Professors Fidell and VanLandingham urge that the military establishment should not use the ties that may bind individuals to the Uniform Code of Military Justice (UCMJ) to punish such conduct:

As a matter of principle, we believe it would be preferable for any military personnel to be tried in the same forum as others who stand trial for putsch offenses. The military status of such offenders, if any, is important but not dispositive, and our view is that there is an extremely strong interest, especially in this fraught moment, in underscoring in every way possible the vitality of the country’s enduring civilian institutions of government. Any deterrent message normally sent by a court-martial to those currently serving can be fulfilled through federal prosecution if the military publicizes such a conviction and uses it as a teaching tool.

This makes sense. Ties of subordination to civil government have been frayed, and so those are the ties that must be repaired. Any military personnel who are involved in attacks against our civil government, either on January 6 or in any future act of similar infidelity, should be punished by the civil government they have betrayed. We fought a Revolution, in part, on the principle that the military should not decide for itself whether and how to punish those who have attacked the People’s right to self-government. As the Declaration of Independence made clear, Americans have tended to find it offensive whenever it appears that:

[The government] has affected to render the Military independent of and superior to the Civil power. . . [has] quarter[ed] large bodies of armed troops among us . . . [and is] protecting them, by mock Trial, from punishment[.]

 - Originally published on March 6, 2021 by CAAFlog, here.