The Joint Chiefs of Staff on Tuesday sent a memo to every American warrior, reminding them they are obligated to “support and defend the Constitution” and that Joe Biden will be the next president, despite fabrications about the outcome of the 2020 election spread by the current commander-in-chief. The communication is unusual in that the leaders of the five branches of the U.S. armed forces bluntly pointed out that participating in sedition is both inconsistent with military tradition and the law.
“As service members, we must embody the values and ideals of the nation,” said Joint Chiefs Chairman Gen. Mark Milley, Vice Chairman Gen. John Hyten, Army Chief of Staff Gen. James McConnville, Marine Corps Commandant Gen. David Berger, Chief of Naval Operations Adm. Michael Gilday, Air Force Chief of Staff Gen. Charles Brown, Chief of Space Operations Gen. John Raymond, and Chief of the National Guard Bureau Gen. Daniel Hokanson. “Any act to disrupt the constitutional process is not only against our traditions, values, and oath; it is against the law.”
Every member of the armed forces swears to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and “bear true faith and allegiance to the same.” The oath does not expire and binds veterans even after separation from active service or duty in the US. Armed Forces’ reserve components.
The chairman of the Joint Chiefs is the nation’s senior military officer. He and the organization’s other senior officer members act in an advisory capacity to senior civilian leadership, including the president and secretary of defense.
Violence at the U.S. Capitol on Jan. 6 caused the death of Capitol Police officer Brian Sicknick and four others. Participants in the riot attacked law enforcement officers, causing one to lose an eye and injuring others. They also threatened to murder Vice President Mike Pence, erected a gallows on the Capitol grounds, burgled and ransacked Congressional offices, invaded the chambers of both the Senate and the House of Representatives and defaced the rotunda with human excrement. Some carried a Confederate flag into the seat of Congress, a building that had not been occupied by hostile forces since the War of 1812.
News reports from the week following the coup attempt have indicated that some of the members of the mob are on active duty in the armed forces or are military veterans. The Army has confirmed that Capt. Emily Rainey, a psychological warfare officer stationed at Fort Bragg, North Carolina, was present during the revolt, and the FBI has arrested both retired Air Force Lt. Col. and Air Force Academy graduate Larry Brock, Jr., of Texas and Navy veteran Jacob Chansley of Arizona for their actions at the Capitol.
Whether the Joint Chiefs’ letter amounted to a warning to service members who actively engaged in the chaos at the Capitol that they could face military discipline is not clear. The memo reminds the country’s military that the Constitution’s guarantees of rights of free speech and assembly do not extend to any “right to resort to violence, sedition and insurrection,” however, it does not plainly say the events of Jan. 6 will be treated as sedition or insurrection. The 14th Amendment explicitly excludes from “any office, civil or military, under the United States” if, having taken an “oath . . . to support the Constitution of the United States,” a person “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The information that the rioters included military personnel has alarmed some members of Congress, who made their concerns known to the Pentagon before the JCS letter was released. Military Times reported Jan. 11 that Colorado’s Democratic Rep. Jason Crow of Aurora, an Army veteran, told Secretary of the Army Ryan McCarthy that he has “grave concerns about reports that active-duty and reserve military members were involved in the insurrection.” Democratic Reps. Ruben Gallego from Arizona, and Sara Jacobs from California, asked the Department of Defense on Jan. 10 to root out and punish any servicemen or servicewomen involved in the Capitol incursion. Sen. Tammy Duckworth,a Democrat from Illinois, echoed that request to Acting Secretary of Defense Christopher Miller on Jan. 11, while a bipartisan group of legislators including Reps. Jake Auchincloss and Seth Moulton, Democrats from Massachusetts, Don Bacon, a Republican from Nebraska, Kaiali’i Kahele, a Democrat from Hawaii and Jimmy Panetta, a Democrat from California repeated the demand in a Jan. 13 letter to Miller.
According to a Jan. 12 report by ABC News, both the Naval Criminal Investigative Service and the Air Force Office of Special Investigations have begun the process of investigating whether any of their members engaged in the armed attack on Congress. The Army has said that it is looking into Rainey’s behavior at the Capitol.
Jeff Sherman, a partner at the Denver office of Faegre Drinker Biddle & Reath and a lieutenant colonel and JAG officer in the Wyoming National Guard, said participation in the revolt would be a punishable act for a member of the military. “Depending on a person’s role, they could be subject to both civilian charges and potential court martial” under the Uniform Code of Military Justice, he said.
Even peaceful involvement in the events at the Capitol by an armed forces member could possibly result in criminal liability if that behavior included vitriolic criticism of President-elect Joe Biden, Vice President-elect Kamala Harris, or members of Congress. “The Uniform Code of Military Justice prohibits using contemptuous words toward certain elected officials,” Sherman said. “If a soldier, in spreading disinformation, is using contemptuous words toward elected officials, that is illegal and can be prohibited and punished.”
Members of the U.S. Armed Forces are allowed to engage in political activities, but the Uniform Code of Military Justice does impose limits. The reason, Sherman said, is that the military is not an agent of any political party or of any particular political agenda. “I think it’s important that the public perceive us and know us to be a non-partisan organization that is loyal only to the Constitution and to our mission and not to any particular person,” he said.
The general rule for GIs is that they are not allowed to engage in public political activities that could be considered partisan in nature. For example, wearing the uniform at a political campaign or fundraising event, sponsorship of a political party-affiliated club, or delivering a speech before a political party event would cross that line. Members of the military are permitted to give money to political campaigns, sign nominating petitions and observe political rallies or speeches.
The basic question for a commander, Sherman said, is whether a serviceman or servicewoman’s actions create a risk to the cohesion of a military unit. “A commander really needs to balance soldiers’ constitutional right to free expression with the good order and discipline of the military organization,” he said. “A commander has certain tools at his or her fingerptips to do that but it’s tough to draw that line.”
— Hank Lacey