Creating a Codified Legal Response to Domestic Extremism in the Ranks
While serving as a Coast Guard lieutenant, Christopher Hasson made plans to kill “journalists, Democratic politicians, professors, Supreme Court justices and those he described as ‘leftists in general.’” On Jan. 31, 2020, he pled guilty to drug- and firearm-related offenses, receiving thirteen years in jail. Despite describing Hasson as a domestic terrorist, federal prosecutors chose these more minor charges due to the fact that no domestic terrorism statute currently exists. The Coast Guard, for its part, also lacked more precise legal means to address Hasson’s crimes.
As an active-duty Air Force military judge, I have seen firsthand a rising population of military members engaging in extremist activities. In 2021, 17.6 percent of domestic terrorism plots and attacks were committed by active-duty or reserve personnel. In January 2021, the United States saw an attack on federal property when an organized group of extremists stormed the United States Capitol. Approximately 12 percent of those individuals charged in federal court for their role in the activities had some form of military experience, including members currently on active duty. There is more than ample evidence that military members are a ripe population for extremist recruitment and that the rise of domestic extremism in the military ranks is a threat to national security.
Unfortunately, the United States Criminal Code and the Uniform Code of Military Justice do not currently provide the tools to deal with this crisis, as they do not treat domestic extremism as a specific criminal offense. Codifying domestic extremism as a punitive article under the military code would provide a means for commanders to adequately address the rising tide of domestic extremism. This step would give more resources and focus to military prosecutors and help prevent politicization in targeting clearly prohibited conduct. Furthermore, it would enable the Department of Defense and society at large to more accurately track domestic extremism in the military, ultimately enhancing trust in the institution as a whole.
The Threat of Extremism
Extremist groups actively recruit military members because of their inherent value to the group. All military members undergo basic training during which they learn how to handle weapons, and many learn far more during their time in the military than what is offered in basic training. Military members also have access to the military itself — strategy, intelligence, insider information, and weapons — all things that can be valuable to those who seek to enact violent extremist attacks. Military members are taught a sense of discipline and structure while serving, qualities that are highly valued by violent extremist leaders, especially in groups that lack well-educated members. In addition, having military members lends extremist groups an “air of legitimacy.” The groups with military members are able to paint themselves as orderly and rational and thus respectable members of society. This also allows the extremist group to paint itself as patriotic — doing what is needed to protect individual rights.
Extremist groups can also be attractive to military members, especially veterans. The need for belonging is frequently cited amongst veterans as a motivation for joining terrorist and violent extremist groups. For people with prior military experience, the need for belonging often comes as a desire for a lost sense of community — the opportunity to join a group that can offer them a similar sense of camaraderie, mission, and loyalty can be incredibly enticing. Just as extremist groups value the discipline and structure of military members, the military member appreciates the sense of order in an extremist group and the pursuit of a perceived common good that many might not find in civilian life.
Another reason veterans might be susceptible to recruitment is that many feel animosity toward the government for not offering them the physical, psychological, or vocational support that they need to succeed in civilian life. Russian President Vladimir Putin has long sought to target and exploit United States military members for the same reason. Russian operatives target specific subgroups to capitalize “on latent grievances or sensitive touch points.” Russia exploits legitimate grievances that military members might have and uses them to create a foothold to foment discord and promote narratives that “the system” is irrevocably broken. Similarly, many extremist groups create narratives that veterans are not valued or that the ideals they fought for in the military are now under assault.
Another factor that contributes to extremist recruitment is that the U.S. military is an all-volunteer force. Without a draft of personnel from the general population, military institutions tend to become more conservative and isolated from civilian society. Volunteers have a longer initial term of service, reenlist in much higher numbers, and have a far lower turnover rate than draftees. These conservative tendencies are constantly reinforced, and young military members can be easy prey for the extreme right-wing groups that relate through similar conservative ideology. Finally, many people with military experience might see extremist groups as a chance to continue fighting for a noble cause. Military members become convinced that America’s heritage and culture are under attack and they are being called on as patriotic defenders.
Military members’ participation in domestic extremism has the potential to irrevocably harm the U.S. military. Active participation in domestic extremism undermines morale and reduces combat readiness of our nation’s military. Morale and cohesiveness among personnel within a military unit are critical, both directly and indirectly, to that unit’s mission readiness and potential for success. Trust and camaraderie are necessary for a team to function and fight effectively and are highly dependent on the ability of the members to communicate at all times. The U.S. military is the preeminent power in the world because of the different backgrounds, viewpoints, cultures, and experiences of our military members, not in spite of these differences. Supremacist views, discrimination, and disparate treatment of individuals jeopardize combat readiness by weakening interpersonal bonds, fomenting distrust, and eroding unit cohesion, and they will ultimately negate a unit’s ability to operate to its full potential. Domestic extremism will ultimately disrupt good order and discipline.
Beyond the threat to the military’s own personnel and missions, violent extremism within the military can also be a threat to the society at large. Violent extremists might receive training from the military, either because they became radicalized after joining the military or, in rarer circumstances, because they joined the military specifically for the purpose of receiving training. This weapons training and access to weapons make these individuals even more dangerous to their potential victims. Violent extremists with military experience might funnel out weapons or provide training to their groups, thus increasing the lethality of not only the individual, but also the entire violent extremist network.
Participation in domestic extremism by military members damages the nation’s trust in the institution. In the long term, this could harm recruitment and reduce the willingness of the American people to fund or support the military. Civilians have the right to know that their servicemembers are protecting them, not planning their destruction because of their race, origin, or political beliefs.
Legal Responses
If a military member participates in domestic extremism, no specific domestic extremism law exists under the Uniform Code of Military Justice to properly charge them. This means that commanders are instead left to address domestic extremism through a potpourri of punitive articles. These include Article 88 (contempt toward officials), Article 94 (mutiny or sedition), Article 116 (riot or breach of peace), and Article 117 (provoking words or gestures). Commanders may also use Article 92 (failure to obey an order or regulation or general order) to cover a broad range of minor misconduct. For example, Department of Defense Instruction 1325.06 forbids military personnel from participating in political activities in uniform or taking a leadership role in such activities. Two other overarching articles are Article 133 (conduct unbecoming an officer) and Article 134 (conduct that is disorderly or service-discrediting). Finally, depending on the circumstances of the offense, a commander could use clause 3 of Article 134 to charge offenses that violate federal civilian law, such as law made applicable through the Federal Assimilative Crimes Act.
In place of this piecemeal approach, Congress should adopt a punitive article that addresses domestic extremism directly. This would have a number of benefits. First, it would give the military a definition for identifying conduct that constitutes extremism and a corresponding tool to prosecute it. Commanders already see misconduct and know the harmful effect it will have. A punitive article will give them a framework to categorize that behavior. Additionally, a punitive article will serve as a deterrent to all military members, warning them that engaging in domestic extremism is not consistent with the values of being a servicemember.
Further, a codified charging scheme will be a clarion call to commanders to enforce the law. Arguably, it is already prohibited for military members to engage in domestic extremism. But the lack of a clear prohibition has inspired uncertainty among commanders regarding whether distasteful behavior is truly prohibited — in especially in light of perpetrators distorting claims of freedom of speech and personal liberty arguments. Making the prohibition explicit will give commanders the freedom to act as the military institution requires them to act.
Finally, the current framework makes it difficult to monitor domestic extremism. The government, Congress, and citizens have no real way to accurately monitor instances of domestic extremism in the military and the disposition of said offenses. Adopting a punitive article would allow the proper identification and tracking of the offense, as well allowing law enforcement agencies to have a repository of information to use in monitoring and future investigations. A data-driven understanding of the nature of extremist behavior among military personnel could help inform and prioritize educational efforts.
Challenges and Solutions
There are several obstacles that have so far prevented the military, and the society at large, from adopting a domestic extremism statute. All of them, however, can and should be overcome, particularly in the military context.
First, domestic extremism cases are difficult ones for the government to prove. Prosecutors must prove a defendant’s participation and motive, requiring a fact-finder to infer the intent of the accused. Yet the military has embraced difficult litigation in the past — for example, in prosecuting sexual assault cases. As a result, the system and its personnel are prepared for such an undertaking.
Second, prosecuting domestic extremism will be a politically delicate undertaking. But the military establishment already has the rationale and resources to operate independently of political pressures. Codifying a domestic extremism punitive article is consistent with the National Strategy for Countering Domestic Extremism, which states that “our law makes no distinction based on political views — left, right, or center — and neither should we.” Adopting a punitive article aligns with pillar three of the national strategy, enabling appropriate enhanced investigation and prosecution of domestic terrorism crimes.
Finally, the freedom of speech protections under the First Amendment drastically limit the ability of criminal statutes to regulate content and viewpoints in a domestic setting. There is a concern that the application of a domestic extremist punitive article will violate the First Amendment. Certainly, every effort must be made to avoid undermining servicemembers’ constitutional rights. However, the Supreme Court has been consistent in giving deference to the military to determine and create policies for itself. In fact, policies aimed at keeping the military “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes” are “wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control.” The Court’s deference extends to military policies that restrict individual rights, which are constitutionally protected for civilians.
The Supreme Court has not held that the Constitution and the Bill of Rights are inapplicable to the military, but it has held that the executive branch and Congress have extraordinary leeway to determine the extent of those rights. Accordingly, the military can curtail a servicemember’s rights far more than civilian authorities can curtail a civilian’s rights. The Supreme Court often refers to the military as a “separate community” with the wholly unique purpose of providing for the nation’s defense and waging the nation’s wars: “The different character of the military community and of the military mission requires a different application of [First Amendment] protections.” Courts base the argument for the separate community doctrine on the military’s exigent function, on which the survival of the nation depends and which has no analogue or parallel in civilian society. To provide for the nation’s defense and survival, this separate community abides by strict rules of discipline that will necessarily involve restriction of otherwise constitutionally provided protections.
Conclusion
Military commanders are entrusted with a grave responsibility. To fulfill it, the good order and discipline of the force are paramount. Extremism amongst the ranks is an insubordination that should be rooted out by commanders. Codifying domestic extremism as a punitive article under the Uniform Code of Military Justice will allow for the prosecution of military members who engage in acts that threaten the loyalty, discipline, or morale of fellow servicemembers. Adopting a punitive article will also help restore civilians’ faith in the military as an institution and protect them from domestic terror attacks. If allowed to fester, domestic extremism will pose a growing danger to the military and the country.
Lt. Col. Michael Schrama is currently a military judge assigned to the Air Force Trial Judiciary, District 1, Joint Base Langley-Eustis, VA. In this capacity, he serves as a trial judge at general and special courts-martial worldwide. Lt. Col. Schrama has served as an assistant staff judge advocate, area defense counsel, appellate defense counsel, environmental litigation attorney, deployed staff judge advocate, special assistant to the United States Attorney General, and deputy staff judge advocate. Lt. Col. Schrama also teaches military law at the William and Mary School of Law.
This article represents the opinions of the author and does not represent the opinions or policy of the William and Mary Law School, the United States Air Force, the Department of Defense, or the United States Government.
Image: Wikimedia Commons
