It became painfully self-evident in the wake of the Jan. 6 insurrection at the U.S. Capitol—in which one in five of the arrested insurgents turned out to be veterans of the U.S. military—that American armed services were overdue in addressing the longstanding issue of the presence of far-right elements within their own ranks. Despite criticism from far-right pundits and congressional Republicans, the Pentagon’s efforts to deal with the problem, including a 60-day “lockdown” ordered by Defense Secretary Lloyd Austin, have so far indicated a seriousness capable of producing the needed change.
However, the path forward on any mission to root out extremists from the ranks is fraught, not least because the breadth and depth of the problem appears to be significant. And as a Washington Post piece detailed this week, the task force charged with leading the effort is wrestling with legitimate questions revolving around military members’ First Amendment rights to free speech and association.
The discussions that occurred during the stand-down, Pentagon spokesman John Kirby acknowledged, made clear that there is a real problem. “Not all, but in many, people did express that they understand this is a problem, that some of them have experienced personally ... quite a few personal anecdotes about experiencing it, and I think that was reflected across the force,” Kirby told Military Times, describing the feedback that resulted.
Called the Countering Extremism Working Group, the task force’s first job is reviewing and updating the military’s working definition of extremism, especially insofar as it relates to its current rule prohibiting members from “active” participation in far-right groups, as well as its scope being limited to groups that participate in or promote racial, ethnic, religious, or other kinds of bigotry. It faces a July deadline to come up with recommendations for possible changes in rules on extremism, as well as military justice and related rules both for uniformed military personnel and civilian Defense Department employees.
Its initial order of business, Military Times reports, is coming up with a working definition of extremism that is responsive to the current situation. Currently, DoD rules allow for membership in known extremist groups, such as the Ku Klux Klan or Proud Boys, as long as one isn’t an “active participant” in a group’s activities—meaning activities such as fundraising, attending rallies, and distributing propaganda. “Passive” membership, such as being admitted to the organization’s membership rolls or possessing their literature, is currently allowed.
Even more relevant in the wake of the Jan. 6 insurrection—at which far-right “Patriot” militiamen, Oath Keepers, Proud Boys, and other various antigovernment extremists played leading roles—is that the current definition of prohibited groups is primarily limited to overtly bigoted outfits like the Ku Klux Klan and neo-Nazi groups.
Cassie Miller, an analyst for the Southern Poverty Law Center, noted to Daily Kos that “currently, the military does not ban troops from participating in antigovernment groups and militias.”
“There are regulations that ban members of the military actively participating in groups that discriminate based on ‘race, creed, color, sex, religion, ethnicity or national origin,’ but they are clearly poorly enforced,” Miller said. “Not only are new screening procedures and regulations sorely needed, the military also needs to enforce the regulations it already has.”
At the same time, as the Washington Post observes, while soldiers’ constitutional rights to association and free speech are actually circumscribed by military code, they can’t be simply ignored, either.
Michael Berry, general counsel at First Liberty, warned that legal road hazards lay ahead: “If you try to criminalize thoughts and beliefs, every defense attorney in the country is going to be doing cartwheels to try to line up clients,” he said.
While the Uniform Code of Military Justice—to which courts typically have deferred when looking at soldiers’ free-speech rights—can prohibit certain kinds of speech, affiliations, and activities, the area of extremist political involvement has largely gone untested in the courts.
“That’s why this is challenging,” a former senior Pentagon official told the Post. “It’s not just that it’s about constitutional rights. It’s that constitutional scholars don’t always agree.”
The Post also quoted anonymous officials who said that Austin intends to ensure that the basic rights of military personnel are preserved.
“But keep in mind that we have also taken oaths, and we also have a set of values that we as a military and we as a department espouse,” a senior defense official said. “And if that speech isn’t in line with our values, then it makes it arguably impossible for that individual to be a good teammate and to be in line with the good order and discipline of units.”
Military Times noted that group affiliation is not the only consideration the task force faces, since in many cases the threat comes not from organized cells but from so-called “lone wolf” actors who engage in domestic terrorism.
“It’s not just about group membership ... it’s about the ideology and the conduct that that ideology inspires,” Kirby said. “Some of this radicalization occurs on an individual level.”
Kirby emphasized that troops would not be penalized for their beliefs.
“This is not about being the thought police. It’s not about identifying you as an individual and what’s in between your ears,” he recently told reporters. “It’s about what you do with what’s between your ears. It’s about the behavior and the conduct that is inspired by or influenced by this kind of ideology.”
“It’s not so much their opinion; it’s them being involved with other extremists,” said Mark Pitcavage of the Anti-Defamation League told the Post.
The longstanding recognition by the courts that, within the context of the military services, national-security and internal-discipline concerns can trump traditional civilian civil rights. Mark Nevitt of Syracuse University College of Law, noted to the Post that courts have often characterized the military as a “specialized society separate from society.”
“Federal courts will likely provide a healthy dose of deference to the military if challenged, particularly if the military can link the new definition to the underlying military mission and good order and discipline,” he said.
“Any time you raise the issue of restricting constitutional rights and protections, it is a big deal, and we should be thoughtful and mindful before we do that,” Congressman Anthony G. Brown of Maryland observed. “What I would offer in response is that the corrosive effect of participating in and membership in extremist groups is so great on military readiness, of good order and discipline, that this would be an instance where restricting First Amendment rights can be justified.”
Another anonymous senior officer offered an anecdote to Agence France-Presse: His son, he said, paid a visit to one of his two preferred schools and was given a tour by a designated student, who at one point opened his own locker “to show off his most prized possession: a Nazi uniform.” The young man chose his other preferred school, and his father reported the closeted Nazi to administrators at the other school.
General Kenneth McKenzie, the head of U.S. Central Command that oversees troops deployed in Afghanistan, Iraq and Syria, told AFP that the American military has an "issue of leadership." "I think a commander who tells you that there's no problem is a commander that really doesn't know what's going on in his or her unit," McKenzie said.