March 18, 2021
What Happens when Service-Members, Past or Present, Breach their Sacred Oath?
Professor of Law, Southwestern Law School, Los Angeles and a retired U.S. Air Force Lieutenant Colonel
Gary A. Kuiper Distinguished Professor of National Security at South Texas College of Law Houston and a retired U.S. Army Lieutenant Colonel
Military veterans comprise seven percent of the American adult population. Yet approximately 20% of those criminally charged in connection with the January 6 insurrection at the U.S. Capitol once served in uniform: to date, more than thirty veterans have been charged with crimes related to the violence that day. Furthermore, there are troubling reports – including allegations from at least one member of Congress – that a number of those involved in the violent uprising were currently-serving active duty or reserve personnel.
Given that the very first step in becoming a member of the armed forces is swearing an oath to support and defend the Constitution, their outsized participation in a violent uprising against the federal government in an effort to disrupt the peaceful transfer of executive power is alarming. Even the new Secretary of Defense, retired Army General Lloyd Austin, has expressed dismay at the disproportionately high number of veterans involved in the January attack. While he was careful to note that he didn’t “expect to see significant numbers inside our ranks,” the small number of extremists in the current ranks is “probably a bit larger than that we would have believed."
Under Austin’s civilian leadership, the uniformed military has committed to better inculcate all service-members (and civilian employees of the Department of Defense) with fidelity to the law based on a foundation of understanding our constitutional values and democratic norms. But let’s not pretend that those who participated in or supported the insurrection were completely ignorant of these norms. They were not, which makes their participation all the more aggravated. Accordingly, it is important to ask what role the classic method of punishing misconduct in the military – criminal prosecution by court-martial – could or should play in the aftermath of January 6. Quite little, at least at this juncture, but let’s have fun with the question first.
While all of the charges to date have been alleged in federal court, members of the armed forces are also subject to the distinct military justice system. This system is based on the authority vested by the Constitution in Congress in Article I, Sect. 8, Clause 14 “to make rules for the government and regulation of the land and naval forces.” Designed primarily to ensure good order and discipline within the uniformed ranks, its breadth of crimes is sweeping, and its procedural safeguards, while robust, differ in several respects from civilian criminal procedure. For example, military members enjoy no Fifth Amendment right to indictment by grand jury, per that amendment’s express terms; they also possess, “by implication,” no Sixth Amendment right to an impartial jury of peers – meaning military ‘juries’ are composed of individuals who always outrank the accused. It also means that the military remains the only criminal justice system in the United States that does not require a unanimous verdict.
But what might surprise most people is that apart from these differences, trial by court-martial in large measure reflects the same procedures that attempt to ensure fairness in the federal civilian criminal justice system. Indeed, while the Supreme Court once called military justice “a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks,” by 2018 that same Court characterized courts-martial as judicial in nature, part of an integrated system “that closely resembles civilian structures of justice.” Ortiz v. United States, 138 S. Ct. 2165, 2167 (2018).
The military’s penal code, the Uniform Code of Military Justice (UCMJ), includes common law crimes such as murder, rape, and larceny. Given that there is no requirement that the crime involve the military beyond the fact that the accused is a member of the armed forces subject to military law, courts-martial jurisdiction often “overlaps substantially with that of state and federal courts” Ortiz v. United States, 138 S. Ct. 2165, 2167 (2018). However, the UCMJ also, quite reasonably, provides numerous military-unique crimes, such as conduct that is service discrediting or prejudicial to good order and discipline; insubordination; desertion; contemptuous words; and disobedience. As a result of these crimes that compromise good order and discipline, it is an undeniable reality that the civil liberties of those in the military are not co-extensive with civilians; the First Amendment’s freedom of speech protections, for example, apply far differently, and for the most part appropriately so, to those in the military than to those not in uniform.
Given the unique over-arching purpose of the military’s specialized criminal justice system, service-members cease to be subject to military law once they have cut their ties to the institution. Indeed, the Supreme Court has carefully policed the military’s jurisdictional reach over former members of the armed forces. Importantly, with respect to the veterans involved in the January 6 insurrection, the military lacks jurisdiction over “civilian ex-soldiers who ha[ve] severed all relationship with the military and its institutions.” United States ex rel. Toth v. Quarles, 350 U. S. 11, 14 (1955). This is true even if the misconduct occurred while on active duty but was only discovered after the service-member was discharged. Simply put: unless one of the military veterans who participated in the January 6 violent uprising falls into one of the specified retiree categories established by Congress (active-duty service members are typically eligible for retirement, with pay and benefits, after twenty-years of active service), the military justice system has no jurisdiction over the misconduct, even if it would qualify as a crime if committed by a service-member on active duty.
Subjecting U.S. citizens to this specialized military system of justice may be necessary, but that necessity is limited by the relationship of the individual to the institution. The Supreme Court has linked such classification to whether "certain overriding demands of discipline" require court-martial jurisdiction over a particular class of individuals. This is why the jurisdiction of military courts turn on both the nature of the offense and the status of the person accused of committing it at the time of the offense. Personal jurisdiction is directly tied to whether the person is considered to be part of the “land and naval forces” within the scope of Congress’ Article I, Sect. I, Cl. 14 rule-making authority over the military.
Of course, active-duty service members are always subject to the UCMJ. This status-based jurisdiction aligns with congressional Article I rule-making authority. Congress, in 10 U.S.C. § 802 (Article 2, UCMJ) ,the federal statute outlining the military justice system’s jurisdictional reach, delineates several other categories of personnel also subject to the Code in addition to those on active duty (thus ostensibly making the others also part of the “land and naval forces.”) Just what is required to justify subjecting these other categories of personnel – those not actively serving – to military jurisdiction is one of the hot issues de jure in military law, as discussed below.
Among the other categories of individuals subject to military jurisdiction are Reservists and national guard personnel. But by statute this jurisdiction applies only when they are serving on active duty orders or in a special training status. This limitation is important; if current Reservists or members of the national guard were taking the day off from their day job to storm Capitol Hill (hence on inactive status), vice skipping military duty, they simply do not fall within the scope of military criminal jurisdiction for their January 6th activities.
In contrast to the very limited military jurisdiction over current reserves and guardsmen/women, “regular” retirees (from active duty) are, at least by the plain language of the UCMJ, subject to military criminal jurisdiction for post-retirement misconduct. This retiree category does not include retired reservists (vice retired regulars) like the former Air Force pilot who allegedly stormed the halls of Congress on January 6th (oddly, unless the misconduct occurs while such reservist retiree is being treated in a military hospital). This seems like a perplexing dichotomy. Why has Congress extended court-martial jurisdiction over America’s two-million plus active duty retirees when even current reservists and those in the national guard are not subject to analogous jurisdiction unless actually in an active duty capacity?
This dichotomy was central to the recent D.C. federal court decision casting doubt on the constitutionality of the current jurisdictional reach of this specialized system of military justice. Larrabee v. Braithwaite, Civil Case No. 19-654 (RJL) (D.D.C. Nov. 20, 2020), is a collateral challenge to the in personam jurisdiction of a court-martial conviction of a member of the Fleet Reserves, a particular category of military retirees found in Article 2 of the UCMJ. United States District Judge Richard J. Leon found that since “Congress has not shown on the current record why the exercise of such jurisdiction over all military retirees is necessary to good order and discipline,” the broad swath of the UCMJs military retiree jurisdiction provision exceeded Congress’ Article I rule-making authority – thus resulting in a reversal of his court-martial conviction based on post-retirement misconduct.
While Larrabee is wending its way up on appeal in the D.C. Circuit, the military’s highest appellate court, the Court of Appeals for the Armed Forces (CAAF), heard oral argument last week in United States v. Begani, a case involving another Fleet Reservist retiree challenging the constitutionality of his court-martial conviction for crimes committed after he retired from active duty. Not only did Begani’s counsel argue that treating retirees differently from current reservists and others violates equal protection, CAAF granted a supplemental issue: whether under Article I and the Fifth Amendment, “any retiree may constitutionally be subjected to a court-martial for offenses committed while retired (and, if so, for which offenses)”—seemingly the very issue raised by Judge Leon in Larrabee.
It is unclear how CAAF will rule in Begani. It may be that Larrabee has in effect opened the door for CAAF to strike down the constitutionality of military retiree jurisdiction, or at a minimum restrict that jurisdiction to offenses committed prior to retirement. Regardless, these cases present a relatively rare and important opportunity for judicial clarification of the permissible extent of Congress’ power to subject citizens (and in some cases non-citizens) to the military justice system. What is the test for determining who falls within the scope of this authority? And these cases may have a broader impact, to include possible scrutiny of the central premise itself – is specialized military jurisdiction still necessary for maintaining good order and discipline for the land and naval forces? Or, perhaps, is that question a priori asked and answered by Article I’s grant of rule-making authority itself, despite the vastly different military of today, compared to the tiny, and loathed, “standing Army” extant at the Constitution’s writing?
Going back to the January 6 insurrection – while a disproportionately high number of military veterans were involved, it is doubtful that more than a handful are actually subject to military jurisdiction. Even for those who are, the military should continue to defer to the Department of Justice to take the lead to prosecute them for the same crimes as their civilian criminal colleagues (as explained here). For any current reservist or guardsman/women involved in the insurrection, their fitness for continued duty should be evaluated, with civilian convictions providing a basis for discharge. Finally, for any active-duty member of the U.S. military who participated in the January 6th insurrection, their crimes against our civilian government should be prosecuted by that civilian government, thus reinforcing its legitimacy, and any military-unique crimes, such as conduct unbecoming an officer and gentlewoman, can be subsequently tried by court-martial.
Even if the military foregoes any such prosecution, these individuals will almost certainly be subject to administrative action to separate them from the active rolls based on their civilian convictions. Accountability for their criminal misconduct may be properly reserved for federal civilian prosecutors, but their blatant breach of allegiance to the Constitution they swore to defend is reason enough for the military institution to sever their connection to national service -- and to double-down on efforts to educate the ranks on the meaning of that special oath that binds together those in uniform.