by Dylan Jaskowski, Administrative Law Intern
Combatting and Defining Extremism
Approximately twenty (20) percent of the individuals charged with crimes related to the storming of the Capitol on January 6, 2021 had prior military service. Consequently, the military has placed a greater emphasis on combatting extremism within its ranks. During Secretary of Defense, Lloyd Austin’s confirmation hearing, he announced plans to “rid our ranks of racists and extremists.” This is a two part article with this first part addressing service-members. The second part will address federal civilian employees.
To do so, new measures have been proposed including better screening of recruits, questions about extremism in climate surveys, and increased training of current members of the armed forces. Additionally, ideas such as a tattoo database and increased monitoring of service members’ social media accounts are being considered.
In a 9 April 2021 memorandum to Senior Pentagon leadership, Combatant Commanders and Defense Agency and DoD Field Activity Directors, Secretary of Defense Austin ordered several immediate actions to counter extremism in DoD, to include: a Review and Update of DoD Instruction 1325.06’s Extremism Definition; updating the Service Member Transition Checklist to include training for departing service-members on potential targeting of Service members by extremist groups; a review and refinement of screening questionnaires to solicit specific information about current or previous extremist behavior by recruits and commissioning an extremism study of the Total Force to better understand the scope and depth of the problem.
Currently Army Regulation 600-20, Paragraph 4-12 governs activities related to extremist organizations. The regulation states that participation in extremist organizations is contrary to the goals of cohesion and morale as well as good order and discipline, and prohibits such behavior. When joining the military, service members accept restrictions on their First Amendment rights. This regulation strives to strike a balance between protecting service members’ First Amendment rights and promoting good order and discipline. The regulation does so by prohibiting participation in extremist organizations and activities instead of affiliation with such organizations or simply having extremist beliefs.
The regulation does not specify exactly what qualifies as extremist activities, though it does state that participation in criminal gangs and terrorist organizations constitutes extremist activity. Further it classifies as extremist those organizations and activities that advocate for “unlawful force or violence” or intolerance, hatred, or discrimination based on race, sex (including gender identity), sexual orientation, or ethnicity.
Given the increased push to clamp down on extremism following the January 6, 2021 storming of the Capitol, it seems that the military is focused predominantly on stopping participation in groups that engage in violent and illegal actions. Among these groups are the Oath Keepers, a conspiratorial, anti-government, militia organization, the Proud Boys, a group that glorifies political violence and opposes left-wing and progressive groups, and the Three Percenters, another anti-government militia group. The Army could likely apply this same standard to participation in left-wing groups like Rose City Antifa who are “unapologetic” about using “physical militancy”, and who were active in throwing bricks, rocks and feces, at riots and protests in Portland, or other similar Antifa groups.
Conversely, while perhaps falling within the regulation, the military does not generally seem to be pursuing punishment or dismissal for those who participate in peaceful religious organizations. Punishment for these groups could present First Amendment issues. This includes groups that may refuse to perform same-sex ceremonies or be perceived as intolerant based on gender identity or sexual orientation, such as orthodox Catholic, Christian, Jewish, and Muslim congregations and organizations. Similarly, there is no indication the military intends to punish participation in groups that may technically skirt the lines of racial discrimination to pursue racial equality or equity. This includes universities and businesses that may engage in affirmative-action policies that may have disparate effects against some ethnic groups or businesses and universities that host events specifically for members of certain racial groups.
Currently, there is no specific section in the Uniform Code of Military Justice that criminalizes participation in extremism. Rather, punitive actions may be taken under the following articles: Art. 92- Failure to obey a lawful general order or regulation, Art. 116- Riot or breach of peace, Art. 117- Provoking speeches or gestures, Art. 133- Conduct unbecoming of an officer, or Art. 134- Conduct prejudicial to good order or discipline. Because other types of conduct unconnected to extremism are also tried under these articles, it is unclear how many hearings or dismissals for extremism the military has conducted. However, some lawmakers have called for a standalone article to specifically address extremism.
While the conduct prohibited in AR 600-20 with respect to extremist activities is somewhat ambiguous, it is clear that soldiers should not participate in organizations that advocate violence or racism, and should certainly not partake in fundraising or leadership roles in these organizations. Further, it may be helpful for soldiers to acquaint themselves with symbols that may be associated with hateful organizations or movements to avoid unintentionally being associated with them. For example, in 2019, cadets at the United States Military Academy were seen on television during the football game against the Naval Academy making the “okay gesture” as part of a game among friends. These cadets came under national scrutiny and investigation from the Academy because of fears they were making a white-nationalist symbol. The cadets were unaware of the connotation of the symbol and after months of public criticism and media attention, were ultimately cleared of any wrongdoing by the Academy. If service members are unsure if an organization or activity would be considered extremist, it is safest to simply avoid participation and association with that organization or activity.
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