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We Can't Fight the Far Right in Military Court
By Jacobin
In the wake of last week's attack on the Capitol, some are calling for the Armed Forces to prosecute pro-Trump rioters in military court. But relying on military courts won't shore up American democracy — it will empower a punitive judicial system that is used to quash dissent within the ranks.
The Uniform Code of Military Justice is primarily an instrument of social control — curtailing rank-and-file soldiers' capacity to refuse orders and limiting their freedom to criticize military commanders at the same time it fails to regulate violent behavior that aligns with the military's larger strategic and disciplinary objectives.
Scholars and journalists have extensively documented the connections between armed far-right groups and the US Armed Forces. As historian Kathleen Belew has shown, the roots of the modern militia movement lie in the networks of neo-Nazi and white power groups established in the 1970s by Vietnam veterans. And today, far-right groups like the Oath Keepers continue to recruit heavily among soldiers and veterans.
It was predictable, then, that among the pro-Trump rioters at the US Capitol last week were a number of current and former military service members.
Already, a man photographed in the Senate atrium with body armor and a handful of zip ties has been identified as a retired Air Force colonel. An Army captain stationed at Fort Bragg resigned after her role in organizing a group of one hundred Trump supporters to go to the Capitol came to light. And on Sunday, the Army revealed that it is investigating twenty-five active-duty members for their alleged participation in the January 6 attack. Congressman Jason Crow (D-CO) of the House Armed Services Committee immediately requested expedited courts-martial for those determined to be involved.
Writing earlier this week in the Nation, national affairs correspondent Jeet Heer applauded Representative Crow and the Army for seeking to use the military criminal legal system — spelled out in the Uniform Code of Military Justice (UCMJ) — to prosecute military service members for crimes committed at the Capitol. Officials within the Armed Forces, he says, can hasten the "major task" of "making sure [the military] has not been infected with seditionists."
Heer acknowledges that the military justice system is routinely criticized as anachronistic and unfair to defendants, even conceding that "civilian courts are preferable" in most cases. Nevertheless, Heer argues that "soldiers should be regarded in a special light if they engage in political violence." In circumstances like these, he insists, active-duty and retired service members should be prosecuted under the UCMJ and sentenced by military courts.
But to delegate additional prosecutorial and judicial authority to the military criminal legal system would be a dangerous and wrongheaded response to the endemic problem of far-right militancy in the Armed Forces.
For one thing, if its objective is to sever the multigenerational link between the US military and the militia movement, the program of speedy and punitive courts-martial Heer advocates would almost undoubtedly fail. More importantly, however, it would further empower the antidemocratic and largely unregulated military court system to restrict the political speech of those who fall under its special jurisdiction — which, as the Supreme Court affirmed last year, includes not just active-duty service members but retirees as well.
By threatening to narrow the legally acceptable scope of political activity for service members, especially those who are no longer actively enrolled in the military, pursuing punishments for pro-Trump rioters in military courts would not safeguard American democracy, but hasten its erosion.
We should reject any expansion of the UCMJ's authority to prosecute political crimes. Instead, we must insist on the absolute primacy of civilian law in all cases involving service members, regardless of whether their conduct is supported or opposed by the military command.
The UCMJ Is Not Your Friend
Heer says the pro-Trump rioters who assaulted the US Capitol are guilty of insurrection. But while "insurrection" is a civilian offense, it is not established as such under military law. If the kind of program Heer advocates were to be meted out by military courts, defendants would likely be prosecuted under the UCMJ's Article 94, which covers "mutiny" and "sedition."
Two things stand out about the so-called punitive articles of the UCMJ, which enumerate offenses for which service members may be held criminally liable by military courts. First, the sentences military judges can impose are strikingly severe, even compared to the United States' famously draconian sentencing regime for civilians. A military defendant determined to have violated Article 94, for example, may be held for a lifetime of hard labor, or even put to death.
Military service members should enjoy no special insulation from civilian law. We cannot afford to legitimize the military criminal legal system, even at a moment when it seems, temporarily, to have the far right in its crosshairs.
Second, military officials have an enormous amount of prosecutorial power at their disposal, even while military defendants enjoy few of the protections of civilian courts (notably robust appeals and due process procedures). And while general courts-martial (the military's equivalent of felony trials) use panels of military personnel to approximate civilian juries, in some cases these juries are as small as four members, and in many cases can render a guilty verdict by majority, rather than unanimous, vote.
Because of these and other issues, the use of military courts in peacetime has recently been struck down or seriously challenged in a slew of countries, including Belgium, Canada, Taiwan, and the United Kingdom.
And despite its severity, the Uniform Code of Military Justice has proven unable to confront the pervasive problem of interpersonal (and especially sexual) violence between military service members. Nor has it been able to restrain US service members' tendency to commit atrocities abroad. Instead, the military court system has frequently been used against dissidents in the ranks — particularly service members who have refused to participate in war-fighting efforts due to ethical or political objections.
During the Iraq War, for example, two Army sergeants — Camilo Mejía and Kevin Benderman — were prosecuted under the UCMJ in retaliation for applying for conscientious objector (CO) status. In the end, both Mejía and Benderman were found guilty of desertion; Mejía served ten months in military prison, while Bendermen served fifteen. (Conscientious objector status excuses active-duty soldiers from armed service on the grounds of principled opposition to US military missions. Federal law enshrines the right of all service members to apply for this status.)
The UCMJ is primarily an instrument of social control — curtailing rank-and-file soldiers' capacity to refuse orders and limiting their freedom to criticize military commanders at the same time it fails to regulate violent behavior that aligns with the military's larger strategic and disciplinary objectives.
As our government increasingly mobilizes military units to repress protests in US cities, we must reiterate, again and again, that military service members should enjoy no special insulation from civilian law. We cannot afford to legitimize the military criminal legal system, even at a moment when it seems, temporarily, to have the far right in its crosshairs.
When Your Boss Is the Pentagon
Heer cites recent actions taken against Donald Trump by corporations like Facebook, Twitter, and Citibank as part of the program of "creative punishments" he thinks "should extend to the military as well."
On first blush, it's disconcerting that a left-leaning commentator like Heer slides so easily from celebrating Trump's private-sector critics to calling for systematic prosecutions backed by a public entity as powerful as the US Armed Forces. But on second thought, the slippage makes sense.
For many thousands of Americans, the US military is primarily a vast, if uneven, employment program. And since at least the 1970s, the Armed Forces have been greatly invested in enhancing the powers of military agencies as employers and as public institutions — especially by limiting the autonomy of rank-and-file service members enrolled within them.
In her authoritative book, The Rise of the Military Welfare State, historian Jennifer Mittelstadt shows that the transition from a conscription military to an "all-volunteer force" in the 1970s required setting up a system of material rewards that could attract service members. Subsidized housing, higher education, childcare, health care, generous spousal benefits, paid retirement — all were extended to active-duty and retired soldiers and their families, even as similar social wages were denied to the bulk of US workers.
Today, the dangling carrot of the "military welfare state" lures millions into arduous and restrictive military careers by promising the kinds of lifetime benefits that are otherwise unavailable. Even after they retire, millions of former military service members find themselves no longer required to follow direct orders, but still tethered to the military command structure because of their reliance on veterans' benefits.
It is in this context that Jeet Heer advocates the expansion of military judicial authority over not only active-duty soldiers, but retired service members. He is well aware of the stakes: "Retired troops can be court-martialed," he writes, "thus depriving them of benefits and pensions."
Initiating a wider program of courts-martial for former military personnel — even, and perhaps especially, in cases where the only consequence the defendants face would be the loss of social benefits — would set a dangerous precedent. Military judges wouldn't even have to be especially punitive to impose a chilling effect on the political speech of all active and former service members. The risk of losing necessary social benefits would likely be enough to silence any speech critical of the Armed Forces from former military personnel — restricting the political activities of an estimated twenty million former service members in the United States.
A military discharge should not mean a lifetime of vulnerability to military legal action in retaliation for controversial political activities. Allowing the UCMJ to adjudicate the bounds of acceptable political conduct, even in an effort to demobilize the far right within the military's ranks, would be an intolerable concession to some of the most undemocratic and unaccountable elements of the American state.
Originally published by Jacobin: Source