Members of the 545th Brigade Engineer Battalion, 45th Infantry Brigade Combat Team, Oklahoma Army National Guard, reenlist in front of the U.S. Capitol building in Washington, D.C., on 21 Jan. 2021. At least 25,000 National Guard men and women were authorized to conduct security, communication, and logistical missions in support of Federal and District authorities leading up to and through the 59th Presidential Inauguration. (Credit: Sergeant Anthony Jones)
Practice Notes
“Thus Always to Tyrants!”
Extremism in the Military—An Application of the New Extremism Framework, and the Way Ahead
By Captain Anthony J. Iozzo & Captain Nell E. Robinson
We will not tolerate actions that go against the fundamental
principles of the oath we share, including actions associated with
extremist or dissident ideologies. Service members, DoD civilian
employees, and all those who support our mission, deserve an
environment free of discrimination, hate, and harassment. It is
incumbent upon each of us to ensure that actions associated with these
corrosive behaviors are prevented. Commanders, supervisors, and all
those who hold a leadership position within the Department have a
special responsibility to guard against these behaviors and set the
example for those they lead.1
Not so long ago, if you were driving around Joint Base Myer-Henderson Hall, located next to the hallowed grounds of Arlington National Cemetery in Virginia, you might pass by a pickup truck belonging to an active duty U.S. Army Soldier with a sticker prominently displayed on its back window. The sticker portrays a Roman numeral three encircled by stars and further emblazoned with the phrase, “When tyranny becomes law, rebellion becomes duty.” At first blush, the sticker could be an ambiguous display of patriotism, and to its bearer, it may be so. However, the sticker displays the logo of the Three Percenters. Just what the Three Percenters and similar organizations represent has been prominently debated—even among the members of these organizations—since the U.S. Capitol insurrection on 6 January 2021, over one year ago.2 The arrests of current and former military personnel related to the storming of the Capitol accelerated the Department of Defense’s (DoD) ongoing examination of extremism within its ranks.
This article first provides an overview of extremist organizations and their connections to the military. It then provides an in-depth description of the Three Percenters organization and analyzes the truck sticker situation presented above by applying the newly-updated DoD Instruction (DoDI) and the Department of the Army (DA) regulation, current as of this writing.3 This guidance is as dynamic as the issue at large, and should it evolve, the analysis below can still help judge advocates (JAs) and commanders think through these issues in similar situations. Finally, the article discusses the potential next steps for the DoD and Army as the country continues to grapple with the implications of last year’s U.S. Capitol insurrection.
Extremist Organizations, Generally
What renders a group “extremist”? Most federal definitions categorize extremist groups as motivated by immutable characteristics of one or more groups of people or by anti-government sentiment. The Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS) define “racially or ethnically motivated violent extremism” as “the potentially unlawful use or threat of force or violence in furtherance of ideological agendas derived from bias, often related to race or ethnicity, held by the actor against others or a given population group.”4 They define “anti-government or anti-authority extremism” as the “potentially unlawful use or threat of force or violence in furtherance of ideological agendas, derived from anti-government or anti-authority sentiment, including opposition to perceived economic, social, or racial hierarchies, or perceived government overreach, negligence, or illegitimacy.”5 According to the Director of National Intelligence, citing the U.S. Code, domestic violent extremists, regardless of their motivations, are U.S.-based actors who conduct or threaten activities that are dangerous to human life in violation of state or federal criminal law, appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of a government by mass destruction, assassination, or kidnapping.6
The DoD and Army have their own definitions of extremism, which will be discussed later in this article. One notable difference from the FBI and DHS definitions, however, is that the DoD and Army definitions include non-violent forms of extremist activity.7
The DoD and Army guidance aligns with the FBI and DHS definitions by
including those activities and organizations driven by bias, as well as
those driven by anti-government and anti-authority sentiment.8
Arguably, the Proud Boys and Nazi-inspired groups would fall under the
former category, while the Oath Keepers and the Three Percenters would
fall under the latter category.9 Though the DoD and Army guidance articulates definitions of extremism, neither entity maintains a standing list of organizations or groups meeting these definitions, and neither entity has officially categorized any of the aforementioned groups as extremist.10
Extremist Activity in the Military
Historically, the DoD has not possessed widespread mechanisms to track extremist activity, which has made quantifying the scope of military extremism challenging.11 Recent process improvements, including coordinated flagging systems, have allowed the DoD to begin to identify the problem’s scope.12 In December 2021, DoD’s Countering Extremist Activity Working Group (CEAWG), to be discussed further below, announced that the military subjected fewer than 100 personnel to official action related to extremist activity over the past year.13
However, a December 2021 DoD Inspector General (IG) report, issued in
response to the Fiscal Year 2021 National Defense Authorization Act
(FY21 NDAA), showed that the services are still scrambling to revise
processes for collecting and reporting prohibited extremist
activity.14
The DoD IG report presented a snapshot of military extremism between January 2021 and September 2021.15 According to data provided by each service, there were 294 allegations of extremist activity, leading to 281 investigations; 92 punitive or administrative actions (including referral to command for appropriate action); 75 unsubstantiated allegations; and 86 ongoing investigations at the time of the report.16 Across the Army specifically, there were 81 investigations into alleged extremism, which resulted in 18 punitive or administrative actions, 2 separations, 10 unsubstantiated allegations, and 51 ongoing investigations at the time of the report.17
The Army categorized the allegations as: 33 related to
racially-motivated extremism, 34 related to anti-government or
anti-authority extremism, and 14 criminal gang activity or
affiliation.18 The IG report noted that DoD has not yet implemented a uniform tracking system, and the DoD IG did not verify the data each service provided.19
Other data suggests an uptick in awareness during recent years, if not incidents themselves. In a 2019 Military Times poll, 36 percent of 1,630 active duty troops said they had witnessed white nationalism or racism in the military.20 Just one year prior, only 22 percent of respondents had witnessed white nationalism or racism in the military.21
The survey participants reported incidents including tattoos affiliated
with white supremacist groups, Nazi-style salutes, swastikas drawn on
Service members’ cars, and Ku Klux Klan stickers.22
Notably, these surveys only gathered data related to racial and ethnic
extremism, but not anti-government sentiment or extremism related to
sexual orientation or gender identity. According to data reported by
NPR, the FBI investigated 68 current and former military members for extremist behaviors involving both anti-government and racist motivations in 2020.23 A “senior defense official” relayed to NPR that of these 68 investigative subjects, “the vast majority” were former Service members that were no longer serving.24
There have also been high-profile stories in the media, even before last year’s U.S. Capitol insurrection. Frontline and ProPublica covered the then-Marine who bragged online about “cracking open three skulls” during the 12 August 2017 Charlottesville, Virginia, “Unite the Right” event.25 The Marine, who was separated from the Marine Corps, was involved in Atomwaffen Division, a hate group responsible for 5 murders and founded by a member of the Florida Army National Guard.26 In February 2019, authorities arrested an active duty Coast Guard officer who was “inspired by racist murders” to stock assault weapons with the intent to “exact retribution on minorities.”27 A Task and Purpose investigation revealed 40 cases of extremism between 2016 and 2021 in currently serving or recently-separated military personnel.28 In reports published in 2019, the Huffington Post identified 11 military personnel belonging to Identity Evropa—the white nationalist group that organized “Unite the Right”—and an additional active duty Soldier with alleged ties to Atomwaffen Division.29
Together, these survey results, FBI data, and news stories raised
concerns among stakeholders about the military’s blind spots vis-à-vis
extremism within its ranks, even before 6 January 2021.
Congress certainly had repeatedly rung alarm bells prior to the rioters
storming the Capitol. Section 530 of the Fiscal Year 2020 National
Defense Authorization Act (NDAA),30 directed the Secretary of Defense to study how recruits are screened for extremist and gang-related activity. On 14 October 2020, the DoD provided the Section 530 report (Pentagon Report) to Congress, including a sixty-page report describing the threat posed to the DoD by domestic extremists, especially white supremacists and white nationalists.31
The whole country heard the alarm bells last year on 6 January 2021, when current and former Service member involvement in the U.S. Capitol insurrection galvanized these efforts to understand and combat the influence of extremist organizations in the military.32 According to CBS News, at least 81 of the over 700 individuals facing criminal charges from the insurrection have military experience.33 Five individuals (one active duty Marine, two Army Reservists, and two National Guard Soldiers) were serving at the time of the insurrection;34 including an Army Reserve noncommissioned officer who allegedly is an “avowed white supremacist and Nazi sympathizer” charged with civil disorder and aiding and abetting.35 Authorities have also connected at least 119 of the defendants to various groups widely viewed as extremist, including the Proud Boys, the Oath Keepers, Q’Anon-affiliations, and the Three Percenters.36 According to a report by the George Washington University Program on Extremism, Capitol riot defendants with military experience were four times more likely to be associated with extremist groups than defendants without military experience.37
On 5 February 2021, Secretary of Defense Lloyd Austin ordered commands to conduct a one-day stand-down to address extremism within the ranks, using (the now-previous) DoDI 1325.06 as the basis for these discussions.38 Following the stand-down, in an April 2021 memorandum, Secretary Austin directed DoD to undertake four immediate actions: 1) review and update of DoDI 1325.06 and its definition of extremism, 2) update the transition checklist to include provisions for training on potential targeting of Service members and veterans by extremist groups, 3) review and standardize accession screening questionnaires to ensure collection of specific information related to current or previous extremist behavior, and 4) commission a study on extremist behavior within the Total Force.39 The memorandum also established the DoD’s aforementioned CEAWG, charged with overseeing these immediate actions and developing mid- and long-term objectives related to four lines of effort: military justice and policy, support and oversight of the insider threat program, screening capability, and education and training.40
On 20 December 2021, Secretary Austin announced that the CEAWG had completed its examination of extremism within the military and published its full report and recommendations.41
Secretary Austin also announced the publication of the updated DoDI
1325.06,
Handling Protest, Extremist, and Criminal Gang Activities Among
Members of the Armed Forces.42 In making these announcements, Secretary Austin underscored the belief that very few DoD Service members and civilians participate in extremist activities, but even a small number can have a disproportional impact on readiness of the force.43
The December 2021 CEAWG report provides a status of each immediate action directed by Secretary Austin and set forth six additional recommendations. The CEAWG introduced the revised DoDI 1325.06 and outlined the updates to this guidance, to include more comprehensive definitions of “extremist activities” and “active participation,” an emphasis on the role of commanders, and specific guidance on social media and online activities.44 The revised DoDI is discussed in further detail below. The CEAWG report also announced DoD’s plans to update extremism policies applicable to DoD civilian employees and contractor personnel.45
The CEAWG report also announced that the DoD Transition Assistance
Program will now contain anti-extremism messaging emphasizing a Service
member’s oath of office, and encourages separating Service members to
report extremist activities to law enforcement under new
mechanisms.46 The DoD is also developing standardized transition training to inform separating troops on how to respond to potential recruiting efforts by extremist organizations.47 Finally, the DoD is partnering with the Department of Veterans Affairs, DHS, the Office of Personnel Management, and the U.S. Intelligence Community to ensure a coordinated effort to prevent and detect extremist activities affecting recently-separated Service members.48
The DoD is looking at incoming Service members as well. The DoD is
adding questions on accessions screening forms regarding violent acts
and membership in “racially-based entities.”49
Additionally, a new DoD–FBI partnership provides various DoD recruiting
and law enforcement commands access to an FBI portal on extremist
groups, activities, symbols, and tattoos.50
This partnership will enable new military applicants to be flagged by
the FBI database during their accession if they exhibit potential
extremist behaviors.51
While the DoD is flexing its bureaucratic power to study and address military extremism, real life examples, like the Three Percenters sticker on the Soldier’s truck, will continue to percolate. So who are the Three Percenters? Are they extremists? Can the Soldier’s command order the Soldier to remove the sticker? Can they, or should they, take any other action? The following presents a detailed overview of the Three Percenters organization, a review of the newly-updated DoD guidance and current DA regulation, and a real-world application of this framework to the Three Percenters organization. This application illustrates how commanders and JAs can think through these multifaceted issues when examining any potential extremist organizations, behaviors, or activities.
The Three Percenters—In Their Own Words
The Three Percenters are a self-proclaimed “organization focused on creating a national network that strengthens and aids communities and individuals, and helps shape the future by preserving, protecting, and defending our country’s founding principles, including our God-given rights to Life, Liberty, and the pursuit of Happiness.”52 The organization’s history explains an origin inspired by the purported 3 percent of colonists that fought against British forces in the Revolutionary War. They declare themselves the modern-day 3 percent and “the last defense to protect the citizens and Constitution of the United States if there ever comes a day when our government takes up arms against ‘WE the People.’”53
As recently as 20 February 2021, the Three Percenters were comprised of a National Council and subordinate chapters organized by region, state, and county. However, approximately six weeks after the 6 January 2021 U.S. Capitol insurrection, the National Council announced their dissolution and took down their website.54
Their website had included by-laws describing the organization’s
structure, operations, training, and goals.55
The section’s analysis is based on these by-laws, which can be found on
milSuite,56
and includes quotations extracted from them. As of this writing,
regional and state chapters of the Three Percenters still appear
operational, and their published by-laws mirror those of the former
National Council.57
The Three Percenters argue that they are not a militia and their goals are benign. They state that they do not wish to overthrow the incumbent government, incite a revolution, or create violence. However, they do contemplate violence against the government. Though the Three Percenters state that they are “very pro-government,” they qualify this sentiment on the condition that the government “abides by the Constitution, doesn’t overstep its bounds, and remains ‘for the people and by the people.’”58 They also express a goal to “reign in an overreaching government and push back against tyranny.”59 In articulating their “three principles,” they clearly contemplate the use of force, by noting that “we will defend ourselves when necessary.”60 Their list of internal offenses provides that members can be punished for “targeting innocents,” thus implying they will engage with what they perceive to be enemy combatants.61 The Three Percenters end their by-laws with the Latin phrase, “Sic Semper Tyrannis!” or “Thus Always To Tyrants!”62
The Three Percenters encourage training and education in areas that are commensurate with military training. They emphasize the importance of physical readiness and encourage members to hone their skills in firearm safety, marksmanship, advanced tactics, radio operations, first aid, and land navigation.63 Additionally, the National Council’s website carried links to online vendors selling tactical gear, including trauma kits and supplies to treat gunshot wounds, communications equipment, and various scopes and sights for firearms.
The Three Percenters ask all of their members to swear to one of two oaths that are reminiscent of a military oath. They have a standard oath for members that is closely aligned to the U.S. Army’s Oath of Enlistment, except that the members swear to uphold the Three Percenters’ “three principles,” rather than swearing to obey orders of the President of the United States and superior officers.64 Additionally, the Three Percenters ask their members affiliated with the military or law enforcement to take a specialized oath that includes promises to not obey certain orders; this includes disobeying orders to disarm citizens; conduct subjectively illegal searches of citizens; impose subjectively unjustified martial law or a state of emergency; blockade cities; and infringe on citizens’ rights to free speech, peaceful assembly, and to petition the government.65 As of this writing, these same oaths can still be found online in state chapter by-laws.66
The Three Percenters also encourage their members to be politically engaged. In their mission statement, the Three Percenters emphasize the importance of educating their members on “the Constitution, political arena, [and] local laws . . . .”67 The organization lists several ways in which members can take action to be politically engaged, including organizing petitions to protest laws, executive actions, and orders they believe to be unconstitutional; participating in local, state, and federal elections; attending local meetings hosted by political candidates and incumbent officeholders; and organizing protests and counter-protests for or against political causes.68
Some advocacy organizations classify the Three Percenters as an anti-government militia movement.69 Although the Anti-Defamation League (ADL) acknowledges that Three Percenters-affiliated organizations sometimes form non-paramilitary groups and online networks, they also create and join traditional militia-style groups.70 The ADL roots the organization’s origin in the “New World Order” conspiracy beginning in the early 1990s. According to this conspiracy, the Federal Government is collaborating with worldwide governmental and nongovernmental organizations to strip U.S. citizens of their rights and freedom in order to be made subjects of a “New World Order.”71 The Three Percenters and similar organizations see it as their role to prevent this.
Last summer, Canada even went so far as to officially classify the Three Percenters as a terrorist organization.72
In doing so, Canadian officials stated that Three Percenters-affiliated
organizations pose a “significant threat” to Canadian domestic security
and cited the 6 January 2021 U.S. Capitol insurrection as part of their
motivation.73
For commands to successfully combat the threat of extremism in the ranks, they must be aware of groups like the Three Percenters. This is essential in helping commanders begin to assess what, if any, action they can and should take. Commanders should analyze the Three Percenters and similar organizations using guidance on both political activities and extremist organizations.
Political Activities
In advising commanders on their left and right limits in restricting political activities, JAs should look to two authorities—Department of Defense Directive (DoDD) 1344.10 and Army Regulation (AR) 600-20, paragraph 5-15.74 These two authorities provide similar guidance, though AR 600-20 is more specific and restrictive. Active duty Soldiers may express their personal opinion on political candidates and issues, as long as they do it off-duty and not in uniform.75 They may join both partisan and nonpartisan political clubs and attend meetings when not in uniform but cannot serve in an official capacity in a partisan political club.76 Soldiers can also attend partisan and nonpartisan political rallies, debates, conventions, or other activities as a spectator (you got it—not in uniform).77 However, Soldiers cannot officially participate at a partisan political rally, debate, or convention.78 Official participation is any activity more than passive attendance as a spectator. Partisan political activity is defined as any activity supporting or relating to candidates or issues identified with national or state political parties or ancillary organizations.79 Conversely, nonpartisan political activity is any activity supporting or relating to candidates or issues not identified with national or state political parties or ancillary organizations.80 Soldiers may display a partisan or nonpartisan political bumper sticker on their private vehicle, but they cannot display a large partisan or nonpartisan political sign, banner, or poster on the top of their vehicle.81
So, how does this political activities framework inform the command’s ability to address a potential member of the Three Percenters? The command can counsel the Soldier on partisan and nonpartisan political activities and order them to refrain from official participation in any partisan political event or activity that the Three Percenters organize or execute.82 The Three Percenters are not aligned with any one political candidate, party, or specific substantive issues tied to a candidate or party, so they are not a traditional partisan political organization. However, they seem to engage in a hybrid of partisan and nonpartisan political activities by encouraging their members to protest laws and executive actions, vote in elections, participate in protests and counter-protests, and attend local government meetings. Thus, it is incumbent on the Soldier, with the command’s guidance, to monitor the specific activity and use this analytical framework in determining the authorized level of involvement.
However, the Three Percenters’ political activities do not readily enable the command to order the Soldier to remove the sticker from his pickup truck. As mentioned, the sticker portrays the Three Percenters logo, along with the phrase “When tyranny becomes law, rebellion become duty.” The sticker is on the vehicle’s back window and is larger than a traditional bumper sticker. At first, this sticker may seem to fit into the category of prohibited sticker displays, since Soldiers cannot display large political stickers on their vehicles. However, this particular sticker does not represent any partisan or nonpartisan candidates or issues, and thus is not a prohibited political display.
The command can counsel the Soldier on partisan and nonpartisan political activities and help the Soldier determine their authorized activities based on this guidance. However, under the political activities regulations, they cannot order the sticker’s removal. Given the Three Percenters’ rhetoric, the command must also examine the organization using an extremist activity framework.
Extremist Activities
The two main authorities to examine under the extremist framework are the newly-updated DoDI 1325.06 and AR 600-20, paragraph 4-12, dated 24 July 2020, current as of this writing.83
The updated DoDI directs each Service to update its respective punitive
regulation in order to implement its guidance “where necessary,”84
and further states that this new guidance does not invalidate the
Services’ current policies or punitive regulations.85
On the same day that Secretary Austin announced the publication of the
revised DoDI, the Under Secretary of Defense for Personnel &
Readiness instituted a 19 January 2022 suspense for the Services to
draft guidance implementing the revised DoDI and submit to his
office.86 It is unclear whether this will drive the Army to substantively change its definitions of active participation and extremist activities, because it appears that the DoDI was fortified using much of the language already included in AR 600-20, paragraph 4-12.87 If JAs interpret any guidance between the revised DoDI and the current Army regulation to be in conflict, they must favor the DoDI over that of the Army regulation.88
The updated DoDI 1325.06 expands both the types of conduct considered active participation and the definition of extremist activities.89 Three of the six extremist activities the DoDI sets forth relate to advocating or engaging in unlawful force or violence to achieve various goals: advocating or engaging in unlawful force, violence, or other means to deprive individuals of their constitutional or statutory rights,90 advocating or engaging in unlawful force or violence to achieve political, religious, discriminatory, or ideological goals,91
and advocating, engaging in, or supporting domestic or foreign
terrorism.92 The other three types of extremist activities do not require the contemplation of force or violence, but relate to illegal or unconstitutional actions towards individuals, classes, or governments: “[a]dvocating, engaging in, or supporting the overthrow of the government . . . by force or violence[,] or seeking to alter the form of the government by unconstitutional or other unlawful means[;]”93 advocating or encouraging DoD personnel (including contractors and both civilian and military employees) to violate any Federal, State, Municipal, or Territorial laws, “or to disobey lawful orders or regulations, for the purpose of disrupting military activities . . . or personally undertaking the same[;]”94
and “[a]dvocating widespread unlawful discrimination based on race,
color, national origin, religion, sex (including pregnancy), gender
identity, or sexual orientation.”95
The current Army regulation defines extremist activities in nine different categories that largely capture the same conduct contained in the DoD’s revised definition,96 but also includes two additional categories: expressing a duty to engage in violence against the DoD or the United States in support of a terrorist or extremist cause, and support for persons or organizations that promote or threaten the unlawful use of force or violence, or criminal activity.97 These categories provide additional definitions beyond those in either the former or current version of DoDI 1325.06.98
The revised DoDI also expanded its definition of active participation to include fourteen categories of prohibited conduct towards extremist activities that covers advocacy, recruitment, fundraising, leadership, information-sharing, and more.99 The definition restricts the level of attendance and engagement that personnel may have with extremist-related events, without a total prohibition. Department of Defense personnel may not actively demonstrate or rally in support of extremist activities, but may observe demonstrations or rallies as a spectator.100 They also cannot “[attend] a meeting or activity with the knowledge that the meeting or activity involves extremist activities, with the intent to support those activities,” when the meeting is a breach of law and order, likely to result in
violence, or attendance is prohibited by military order.101
Otherwise, DoD personnel may attend these meetings.
The DoDI was also revised to reflect the age of social media. The
guidance prohibits “posting, liking, sharing, re-tweeting, or otherwise
distributing content” related to extremist activities if done with the
intent to promote or endorse such activities.102
Importantly for the truck sticker analysis below, DoDI 1325.06 also
prohibits “[k]nowingly displaying paraphernalia, words, or symbols in
support of extremist activities [or groups] that support extremist
activities, such as flags, clothing, tattoos, and bumper stickers on or
off a military installation.”103 The guidance also includes a “catch-all” provision which prohibits knowingly taking any action in support of extremist activities when the conduct is prejudicial to good order and discipline or service-discrediting.104
Specifically prohibited active participation in AR 600-20, paragraph 4-12, similarly includes 1) “[p]articipating in public demonstrations or rallies[;]” 2) attending a meeting knowing it involves an extremist cause “[w]hether on or off duty [and] [w]hether in or out of uniform [if] [i]t constitutes a breach of law and order[,] it is likely to result in violence[,]” or it violates a command’s order; 3) fundraising; 4) “recruiting or training members . . . ,” 5) assuming a leadership role; 6) distributing literature; 7) or “receiving financial assistance” from a person who engages in such activities.105
Though neither DoDI 1325.06 nor AR 600-20, paragraph 4-12, totally prohibit personnel from being members of or participating in extremist organizations and activities, they both authorize and encourage commanders to prohibit and order Service members from carrying out any activities that are contrary to the good order and discipline of the unit, or pose a threat to the health, safety, and security of military personnel or an installation, regardless of whether or not the conduct is a specifically prohibited activity.106 As mentioned, the DoDI also includes a catch-all provision that prohibits taking any action in support of, or engaging in, extremist activities, when such conduct is prejudicial to good order and discipline or is service-discrediting.107 The Army regulation similarly notes that any Soldier involvement with an extremist group, to include “membership, receipt of literature, or presence at an event,” could threaten good order and discipline and requires commanders to address this involvement, even where it is not specifically prohibited.108
Accordingly, JAs should advise commanders that the extremism guidance regulates Soldiers’ activities, whether or not the Soldiers are affiliated with a potential extremist organization. The attributes of organizations are indeed relevant, such as when determining if a commander should counsel a Soldier for “mere membership” in an organization, or if the Soldier’s involvement in an organization rises above mere membership. By emphasizing the Soldier’s activities, rather than simply an organization’s attributes, the regulatory framework ensures that commanders intervene in concerning situations involving Soldiers without any ties to any potentially extremist organizations.
In applying this and any forthcoming guidance to a real-life situation, JAs should understand how the First Amendment of the U.S. Constitution’s protection of free speech and expression apply to members of the armed services.109 Although this complex topic merits a separate article, the following is a brief overview of the key points to consider. Commanders and JAs should be particularly alert for constitutional issues when considering regulations and policies governing off-duty social media postings, as well as those prohibiting demonstrating or rallying in support of extremist activities (versus merely observing these events as a spectator).
Notably, the First Amendment does not protect military or civilian speech deemed by the courts to be dangerous, obscene, or fighting words.110 Importantly though, the courts have imposed a less stringent standard for what constitutes dangerous speech in the military context.111
Speech by military personnel is considered dangerous so as to be
unprotected by the First Amendment if it “interferes with or prevents
the orderly accomplishment of the mission or presents a clear danger to
loyalty, discipline, or morale of the troops.”112
The updated DoDI 1325.06 recognizes these differing standards by noting
that the policy prohibits certain activities that may be protected by
the First Amendment in the civilian context.113
For speech not considered dangerous (or obscene or fighting words), the
First Amendment applies, but its protection is “less comprehensive in
the military context, given the different character of the military
community and mission.”114 In criminal cases, the U.S. Court of Appeals for the Armed Forces (CAAF) has held there must be a balance “between the essential needs of the armed services and the right to speak out as a free American.”115 For example, in a case involving charges under Article 134, Uniform Code of Military Justice (UCMJ), the CAAF held that a “direct and palpable connection between the speech and military mission or military environment” is required to meet the Article 134 element requiring that the act prejudiced good order and discipline or brought discredit on the armed forces.116 In other words, the military prosecutor must establish a tie between the speech in question and the military; otherwise, the CAAF would consider the speech as constitutionally-protected and reject criminal sanctions under Article 134.
In civil cases, the legal progeny affords even less protection to military speech and more deference to military regulations and administrative actions that “place burdens on, or exact administrative consequences for speech, expression, and the exercise of religion that would not pass constitutional muster in the civilian context.”117 For example, in Brown v. Glines,118
the Air Force removed an officer from active duty for circulating
petitions without his commander’s permission. The Court held that the
regulation requiring permission did not violate the First Amendment
because it restricted speech no more than reasonably necessary to
protect the substantial governmental interest unrelated to suppression
of free speech, that is, the interest of “maintaining the respect for
duty and discipline that is essential to military effectiveness.”119
The Court emphasized that the military commander “must have authority
over the distribution of materials that could adversely affect [morale,
discipline, and readiness].”120 The regulatory framework places a tremendous responsibility on commanders to exercise “calm and prudent judgment” in balancing constitutional protections for freedom of expression with the maintenance of good order and discipline and national security.121
Commanders do possess the full range of disciplinary and administrative
options in addressing substantiated active participation in extremist
activities.122 The framework also requires commanders to act when they receive a credible report of apparent extremist activities, even if it is unclear whether the Soldier is actively participating in prohibited conduct. Commanders must notify their servicing JA, the U.S. Army’s Criminal Investigation Division (CID) (or another Service’s counterpart), and potentially other military and civilian intelligence offices as needed.123
They must also counsel the Soldier on the extremist policies.124
Though commanders must assess whether a Soldier’s activities necessitate
intervention, CID is ultimately responsible for identifying extremist
organizations.125 However, CID does not maintain a running list of organizations categorized as extremist.126 Thus commanders should consult with their legal advisor when receiving information from any source about suspected extremist activities and when taking any action pursuant to DoDI 1325.06 and AR 600-20, paragraph 4-12.
Turning back to the example of the Three Percenters, the extremist framework provides the command both greater authority to restrict behavior and more autonomy in deciding whether to do so, than DoDD 1344.10’s political activities guidance does. Under the extremism regulations, the command can order the Soldier to remove the Three Percenters sticker from their private vehicle if they determine that its display jeopardizes the unit’s readiness, good order and discipline, morale, health, safety, or security, regardless of whether the Three Percenters can be considered extremist.
If the Soldier were to challenge this action on constitutional grounds, the courts would likely analyze whether the sticker interferes with the orderly accomplishment of the mission or presents a clear danger to loyalty, discipline, mission, or morale.127
Even if the sticker did not present a clear danger, a court could still
uphold the action if it restricted the Soldier’s speech no more than
necessary to protect a substantial government interest such as unit
morale, discipline, or readiness.128 The Three Percenters and similarly-situated organizations attract polarizing opinions on the implications of their beliefs, values, and goals. This polarization, greatly amplified after the 6 January 2021 U.S Capitol insurrection, can present risk to the unit from within. Soldiers’ strong opinions about the Three Percenters and similar organizations may cause distraction and internal tension and negatively affect good order and discipline, and communal morale.
There are also potential risks to the unit from outside the organization. In light of the current news cycle rhetoric about extremist and fringe organizations, the command may reasonably deem it prudent to require the sticker’s removal in order to preserve the unit’s perceived professionalism. Should the sticker remain on the Soldier’s truck, the public may, fairly or not, attribute the Three Percenters’ beliefs, values, and goals to the unit. Further, any indirect association between the Three Percenters and the unit, no matter how remote, could present a safety risk to the unit and to the installation.
The command could also determine that the Three Percenters possess enough attributes of an extremist organization to require further intervention. If so, they must, at a minimum, counsel the Soldier on the extremist policies and report their concerns to CID and their servicing judge advocate.
The Three Percenters could be considered an extremist organization that either: 1) expresses a duty to engage in violence against the DoD or United States in support of a terrorist or extremist cause under AR 600-20, paragraph 4-12a(6), or 2) encourages military or civilian personnel to violate laws or disobey lawful orders or regulations for the purpose of disrupting military activities under DoDI 1325.06, enclosure 3, paragraph 8c(1)(e), and AR 600-20, paragraph 4-12a(8).
The Three Percenters also possess troubling indicators of an organization that contemplates participating in activities that could precipitate the violent overthrow of the U.S. Government by force or violence or seeks to alter the form of government by unconstitutional means under DoDI 1325.06, enclosure 3, paragraph 8c(1)(d), and AR 600-20, paragraph 4-12a(9). However, they explicitly state that they do not want to implement their own government, overthrow the incumbent government, incite a revolution, or create violence. Similarly, the Three Percenters could be analyzed as an organization that advocates for the use of force or violence to achieve goals that are political, religious, discriminatory, or ideological under DoDI 1325.06, enclosure 3, paragraph 8c(1)(b), and AR 600-20, paragraph 4-12a(5). However, the group does not seem to advocate for blanket violence insomuch as they contemplate hypothetical violence against the government, which will be discussed. They also do not seem to fit into any other category of extremism offered in DoDI 1325.06, enclosure 3, paragraph 8c(1) or AR 600-20, paragraph 4-12a.
A Duty to Use Violence Against the Government
As stated, this definition is an additional category of extremism not included in either the former or current version of DoDI 1325.06.129 Should any revisions to AR 600-20 remove this definition, this analysis can still illustrate how to think through these issues.
The Three Percenters openly express a duty to engage in violence against government entities in order to “rein in an overreaching government and push back against tyranny.”130 They emphasize this perceived duty by declaring themselves “the last defense to protect the citizens and Constitution of the United States if there ever comes a day when our government takes up arms against ‘WE the People.’”131 Though they categorize any hypothetical use of force as self-defense, they repeatedly affirm their mission throughout their by-laws. By contemplating taking up arms against one or more government entities—no matter how remote the possibility—the Three Percenters necessarily envision themselves as a non-State armed group engaged in hostilities against the government, making them hypothetical enemy belligerents.132
A Soldier belonging to the Three Percenters in this scenario would have
a dangerous conflict of interest and potentially be a national security
threat.
However, it is unclear if the Three Percenters’ declared duty to engage
in violence against the government is “in support of a terrorist or
extremist cause” under AR 600-20, paragraph 4-12a(6). The regulation
does not further define the term “terrorist.” The DoDI defines
“terrorism” as “the unlawful use of violence or threat of violence,
often motivated by religious, political, or other ideological beliefs,
to instill fear and coerce individuals, governments, or societies in
pursuit of terrorist goals.”133 The Three Percenters’ articulated duty can reasonably be interpreted as an attempt to influence the government to refrain from enacting policy and passing laws that the Three Percenters deem to be overreaching or unconstitutional. Regardless of this prong’s ambiguity, the Three Percenters do plainly condone violence against the government in certain situations.
Encouraging Military Personnel to Disobey Orders
The Three Percenters encourage military personnel to disobey orders that they perceive to be unlawful. They ask members who are current members of the military or civilian law enforcement to take a specialized oath disavowing certain future orders given to them in their military or law enforcement capacity.134 The Three Percenters imply that these hypothetical orders are unlawful, but there are likely scenarios in which they believe lawful orders to be unlawful.135 They could then encourage military-affiliated members to disobey lawful orders should those orders conflict with the Three Percenters’ desired mission set. Thus, it is wholly inappropriate for a Soldier to swear to any oath insomuch as it conflicts with the execution of their current or future military duties. Accordingly, under their inherent authority, the command could order the Soldier to refrain from swearing to the oath and to refrain from executing any task that may be inconsistent with their Oath of Enlistment or Office.136
The Three Percenters’ request for members to disobey certain orders can reasonably be said to be “for the purpose of disrupting military activities.”137 In their hypothetical armed conflict, the Three Percenters would be fighting against the government, and they would necessarily want their military-affiliated members to break ranks, join their cause, and thus disrupt the government’s capability to fight back.
In summary, the command cannot order the Soldier to remove the Three Percenters sticker due to the organization’s political activities, but can order the Soldier to remove the sticker if they determine that its display risks the unit’s good order and discipline or health and welfare. The command can counsel the Soldier on both partisan and nonpartisan political activities and order the Soldier to refrain from official participation at any partisan political event. The command may also determine that the Three Percenters possess enough attributes of an extremist organization to require further intervention. If the command does make this determination, they must, at a minimum, counsel the Soldier on the extremist guidance, and report their concerns to CID. The command can also order the Soldier not to swear to any oath and or execute any task that may be inconsistent with their Oath of Enlistment or Office.
What’s Next?
The analysis above illustrates how commanders and JAs alike should think through these issues when faced with a Soldier’s potential ties to an extremist organization. There are also several areas where commanders and JAs can anticipate new developments.
Remaining CEAWG Recommendations
Judge advocates can expect additional regulatory guidance, prevalence data, and training requirements stemming from the CEAWG’s additional recommendations contained in the December 2021 report. By 31 March 2022, the DoD will publish an updated DoDI 1438.06 with a definition of extremist activities applying to DoD civilian employees, to align closely with the definition applicable to Service members.138 The DoD is also reviewing existing authorities to determine how best to provide notice to contractor personnel on prohibited extremist activities.139 The DoD is further developing a comprehensive training and education plan based on the new definitions of extremist activities and active participation contained in revised DoDI 1325.06, to include targeted trainings for certain personnel, including legal advisors.140
Finally, the Institute for Defense Analyses (IDA), chartered by the DoD
to conduct the study, will issue a final report in June 2022 on
extremist activity across the force.141
The final report will include recommendations pertaining to military,
civilian, and contractor personnel.142
Proposed UCMJ Article Prohibiting Extremism
Secretary Austin also directed the CEAWG to explore whether to amend the
UCMJ to explicitly criminalize extremism—a measure that Congress has
also debated.143 The FY22 NDAA directed Secretary Austin to submit a report to Congress within 180 days containing “such recommendations as the Secretary considers appropriate with respect to the establishment of a separate [UCMJ article], on violent extremism.”144 Stakeholders have diverse opinions on whether this is a needed change. Many believe that the current UCMJ articles already cover prohibited conduct.145 Notably, the CEAWG’s December 2021 report does not include any analysis on this issue.146
Social Media
The DoD’s updated guidance on social media and online conduct in DoDI 1325.06 garnered a lot of public attention.147
The July 2020 revision of AR 600-20 also contains a robust new cyber
extremism section.148 The Army regulation is more tailored than the DoDI social media provision, but it also prohibits a wide range of online activities to include the promoting a meeting or activity via social media with the knowledge that event involves an extremist cause.149
Commentators have suggested that these regulations provide commanders
too much discretion to decide when a social media post violates these
regulations.150 According to DoD spokesperson John Kirby, DoD is not monitoring accounts; rather the new regulation allows DoD to act when a prohibited online activity comes to light through various streams of reporting.151
On a related note, DoD has received recommendations to use artificial
intelligence and machine learning technology to analyze extremists’
online targeting of military personnel, which raises privacy and due
process concerns.152 Thus, despite assurances that the DoD is not conducting widespread monitoring of social media accounts, JAs and commanders should certainly expect continued tension between the military’s prerogative to protect good order and discipline, and security, and troops’ constitutional rights.
Larger Implications: Extremism and the Other “Corrosives”
It is not lost on stakeholders that the U.S. Capitol insurrection and subsequent increased attention to military extremism came on the heels of the 6 November 2020 Report of the Fort Hood Independent Review Committee.153 That report found that the command climate at Fort Hood had been permissive of sexual assault and sexual harassment, and that the Army Sexual Harassment/Assault Response and Prevention (SHARP) program is structurally flawed.154 Moreover, 54 percent of respondents expressed concerns about the treatment of women and minorities in the Army.155 Many survey respondents volunteered information about the prevalence of racism and sexism, even when the survey had not specifically requested that data.156
In the extremism stand-down order, Secretary Austin specifically linked racism, sexism, and extremism by stating that DoD personnel “deserve an environment free of discrimination, hate, and harassment.”157 In response to the Fort Hood report, the Fort Bliss commanding general initiated Operation Ironclad “to care for our people and preserve readiness” by eliminating the “three corrosives of Sexual Harassment and Sexual Assault; suicide; and extremist speech, behavior, and activities.”158 The connections between EO, SHARP, and extremism concerns within the Army are also evident in how AR 600-20 ties the definition of extremism to equal opportunity (EO) protections.159 The connections are also evidenced by the recent push to rename military installations named for Confederate generals.160 In 9 July 2020 remarks to Congress, Chairman of the Joint Chiefs of Staff General Mark Milley directly linked the effort to rename bases named after officers who “turned their back on their oaths” and “committed treason” to the need to eliminate symbols and manifestations of racism and discrimination from the armed forces.161 In developing and promulgating additional initiatives to combat extremism, DoD leadership will likely also consider how potential programs could also address SHARP and EO concerns.
Conclusion
The DoD will continue to face challenges as this problem’s scope is more informed by data and feedback. The updated guidance still does not identify any specific groups as extremist and allows participation with extremist activities up to certain prohibited thresholds, which troops and commanders may struggle to identify.162
Nevertheless, the highest levels of leadership were tracking the issue
of military extremism years ahead of the U.S. Capitol insurrection, and
continue to do so now. Extremism is as much an American problem as it is
a military problem. An optimistic view is that the military is leading
the way in addressing and, hopefully, preventing these corrosive
behaviors. A realistic view is that our Army, our military, and our
country should expect to grapple with the many aspects of these
difficult issues for years to come.
Regardless of whether the command ordered the Soldier to remove the
Three Percenters sticker, regardless of whether the Soldier displaying
Three Percenters sticker can be considered active participation in an
extremist activity under DoD and DA policy, and regardless of whether
the Three Percenters’ subordinate chapters survive the next news cycle,
this analysis can serve as a playbook for assessing similar
organizations and activities and their proximity to our Army. Current
DoD and DA guidance gives commanders both immense responsibility to
examine these activities and latitude in assessing whether action is
needed. Crucially, the guidance directs commanders to intervene and
counsel Soldiers even if the observed behavior does not violate the
extremism provisions. Recognizing warning signs and engaging in an open
discussion with Soldiers is an important prevention strategy. In
contrast, choosing not to engage could exacerbate a Soldier’s isolation
and alienation, which could drive future, more dangerous extremist
activities. Because of this, it is all the more important to facilitate
some semblance of consistency, predictability, and fairness in the
application of these principles across the force. Hopefully, Service
members and leaders alike share ideas not only to root out dangerous
behavior, but also to learn from those having differing opinions.
TAL
CPT Iozzo is the Regimental Judge Advocate for the 3d Infantry Regiment (The Old Guard) at Joint Base Myer-Henderson Hall, Virginia.
CPT Robinson is a Legal Assistance Attorney for the 151st Legal Operations Detachment at Alexandria, Virginia.
Notes
1. Memorandum from Sec’y of Def. to Senior Pentagon Leadership et al., subject: Stand-Down to Address Extremism in the Ranks (5 Feb. 2021) [hereinafter Extremism Stand-Down Memorandum].
2. See generally The Capitol Siege: The Cases Behind the Biggest
Criminal Investigation in U.S. History, NPR (Jan. 21, 2022, 4:53 PM),
https://www.npr.org/2021/02/09/965472049/the-capitol-siege-the-arrested-and-their-stories#database.
3. See U.S. Dep’t of Def. Instr. 1325.06, Handling Protest, Extremist, and
Criminal Gang Activities Among Members of the Armed Forces
(27 Nov. 2009) (C2, 20 Dec. 2021) [hereinafter DoDI 1325.06];
U.S. Dep’t of Army, Reg. 600–20, Army Command Policy (24 July 2020) [hereinafter AR 600-20].
4. U.S. Dep’t of Just. & U.S. Dep’t of Homeland Sec., Domestic
Terrorism: Definitions, Terminology, and Methodology 2 (2020).
5. Id.
6. Off. of the Dir. of Nat’l Intel., (U) Domestic Violent Extremism
Poses Heightened Threat in 2021 (2021),
https://www.dni.gov/files/ODNI/documents/assessments/UnclassSummaryofDVEAssessment-17MAR21.pdf.
7. See DoDI 1325.06, supra note 3; AR 600–20, supra note 3, para. 4–12. See also U.S. Dep’t of Army, Violent Extremism Guide for Army Leaders and Army
Security Professionals (2020) (providing additional definitions and discussions of extremism
and related terms).
8. DoDI 1325.06, supra note 3, encl. 3, para. 8; AR 600-20, supra note 3, para. 4-12.
9. Jaclyn Diaz, Members of Right-Wing Militias, Extremist Groups Are Latest Charged
in Capitol Siege, NPR (Jan. 19, 2021, 5:54 AM),
https://www.npr.org/sections/insurrection-at-the-capitol/2021/01/19/958240531/members-of-right-wing-militias-extremist-groups-are-latest-charged-in-capitol-si.
10. See AR 600-20, supra note 3, para. 4-12e(2)–(3). The U.S. Army’s Criminal Investigation Division is responsible for identifying extremist organizations and activities, but they do not currently maintain a by-name list of such organizations.
11. Mark Satter, Divide over Scope of Military’s Extremism Problem Impedes Culture,
Policy Changes, Roll Call (May 20, 2010, 5:30 AM), https://www.rollcall.com/2021/05/20/divide-over-scope-of-militarys-extremism-problem-impedes-culture-policy-changes; See also Kyle Rempfer, The Army Doesn’t Know How Many Extremists It Has Booted, Army Times (Feb. 19, 2021), https://www.armytimes.com/news/your-army/2021/02/19/the-army-doesnt-know-how-many-extremists-it-has-booted.
12. U.S. Dep’t of Def., Report on Countering Extremist Activity within
the Department of Defense
8 (2021),
https://media.defense.gov/2021/Dec/20/2002912573/-1/-1/0/REPORT-ON-COUNTERING-EXTREMIST-ACTIVITY-WITHIN-THE-DEPARTMENT-OF-DEFENSE.PDF
[hereinafter CEAWG Report]. See also Inspector Gen., U.S. Dep’t of Def., Department of Defense Progress on
Implementing Fiscal Year 2021 NDAA Section 554 101 Requirements
Involving Prohibited Activities of Covered Armed Forces (2021),
https://media.defense.gov/2021/Dec/02/2002902153/-1/-1/1/DODIG-2022-042.PDF
[hereinafter DoD IG Report].
13. CEAWG Report, supra note 12, at 8.
14. DoD IG Report, supra note 12, at 4.
15. Id.
16. Id. at 7.
17. Id. at 6–7.
18. Id. at 7.
19. Id. at 4, 6.
20. Leo Shane III, Signs of White Supremacy, Extremism up Again in Poll of Active-Duty
Troops, Mil. Times (Feb. 6, 2020), https://www.militarytimes.com/news/pentagon-congress/2020/02/06/signs-of-white-supremacy-extremism-up-again-in-poll-of-active-duty-troops.
21. Leo Shane III, One in Four Troops Sees White Nationalism in the Ranks, Mil. Times (Oct. 23, 2017), https://www.militarytimes.com/news/pentagon-congress/2017/10/23/military-times-poll-one-in-four-troops-sees-white-nationalism-in-the-ranks.
22. Id.
23. Tom Bowman, Defense Official: Scores of Current and Former Military Probed in
Extremism, NPR (Jan. 15, 2021, 8:07 PM), https://www.npr.org/2021/01/15/957503046/defense-official-scores-of-current-and-former-military-probed-in-extremism-cases.
24. Id.
25. A.C. Thompson & Ali Winston, U.S. Marine to Be Imprisoned over Involvement with Hate Groups, ProPublica (June 20, 2018, 4:13 PM), https://www.propublica.org/article/vasilios-pistolis-imprisoned-marine-hate-groups.
26. Id. See also A.C. Thompson et al., Ranks of Notorious Hate Group Include Active-Duty Military
(May 3, 2018),
https://www.pbs.org/wgbh/frontline/article/ranks-of-notorious-hate-group-include-active-duty-military.
27. Pete Williams,
White Supremacist Coast Guard Officer Sentenced to 13 Years in
Prison, NBC News (Jan. 31, 2020, 5:46 PM), https://www.nbcnews.com/news/us-news/white-supremacist-coast-guard-officer-sentenced-13-years-prison-n1127636.
28. Paul Szoldra, These Are the Faces of Extremism in the Military,
Task & Purpose, https://taskandpurpose.com/news/us-military-extremism/ (Apr. 23, 2021, 4:47 PM).
29. Christopher Mathias, After HuffPost Investigation, 4 White Nationalists out of U.S.
Military—But Others Allowed to Remain, HuffPost (Aug. 7, 2019, 6:39 PM), https://www.huffpost.com/entry/white-nationalists-military-kicked-out-huffpost-investigation_n_5d4b0f83e4b0066eb70b9945.
30. National Defense Authorization Act for the Fiscal Year 2020, Pub. L. No. 116-92, §٥٣٠, ١٣٣ Stat. ١١٩٨, ١٣٥٨ (٢٠١٩).
31. Andree E. Rose et al., Off. of People Analytics, Leveraging FBI
Resources to Enhance Military Accessions Screening and Personnel
Security Vetting (2020), in Off. of the Under Sec’y of Def. for Pers. & Readiness, Report to
Armed Services Committees on Screening Individuals Who Seek to Enlist
in the Armed Forces
(2020) [hereinafter
Pentagon Report]. The report recommended that the DoD should use the FBI’s database to analyze questionable tattoos; provide an unclassified version of the FBI’s training on extremism; create a Federal Government-wide definition of domestic extremism; have the DoD’s Accessions Policy join the Publicly Available Electronic Information Group; update the government form used for background checks; and add a military separation code for domestic extremism. Id. The DoD has begun to implement all but the last recommendation, which it is reviewing. Id. See also CEAWG Report, supra note 12, generally.
32. See Tom Bowman, Capitol Riot Prompts a Reckoning over Extremism in the Ranks, NPR (Feb. 10, 2021, 5:09 AM),
https://www.npr.org/2021/02/10/965951696/capitol-riot-prompts-a-reckoning-over-extremism-in-the-ranks.
See also Todd South, Extremism in the Ranks is a “Threat,” but the Pentagon’s Not Sure How
to Address It, Mil. Times (Feb. 21, 2021), https://www.militarytimes.com/news/your-military/2021/02/21/extremism-in-the-ranks-is-a-threat-but-the-pentagons-not-sure-how-to-address-it.
33. Eleanor Watson & Robert Legare, Over 80 of Those Charged in the January 6 Investigation Have Ties to
the Military, CBS News (Dec. 15, 2021, 6:32 PM), https://www.cbsnews.com/news/capitol-riot-january-6-military-ties/.
34. Daniel Milton & Andrew Mines, “This is War”: Examining Military
Experience Among the Capitol Hill Siege Participants (2021). As noted by Milton and Mines, there are several possible
explanations for why there were so few currently serving personnel as
opposed to prior service. According to their report, the potential
reasons include “lack of interest, logistical hurdles, or the deterrent
effect of current military policies” including DoDI 1325.06 and the
Uniform Code of Military Justice.
Id. at 22.
35. Ryan Lucas, Active-Duty Marine Corps Major Charged in Capitol Riot, NPR (May 13, 2021, 3:48 PM),
https://www.npr.org/2021/05/13/996602525/active-duty-marine-corps-major-charged-in-capitol-riot;
The Capitol Siege: The Cases Behind the Biggest Criminal Investigation in U.S.
History, NPR: All Things Considered, https://www.npr.org/2021/02/09/965472049/the-capitol-siege-the-arrested-and-their-stories (Aug. 13, 2021, 11:51 AM). See also Meryl Kornfield, Alleged Capitol Rioter That Grew “Hitler” Mustache Still Active in
Army, Wash. Post (March 15, 2021, 1:12 PM), https://www.washingtonpost.com/nation/2021/03/14/army-nazi-sympathizer-capitol-riot/.
36. The Capitol Siege, supra note 2.
37. Milton & Mines, supra note 34, at 8.
38. Extremism Stand-down Memorandum, supra note 1.
39. Memorandum from Sec’y of Def. to Senior Pentagon Leadership et al., subject: Immediate Actions to Counter Extremism in the Department and the Establishment of the Countering Extremism Working Group (9 Apr. 2021) [hereinafter SecDef April Memorandum].
40. Id.
41. Memorandum from Sec’y of Def. to Senior Pentagon Leadership et al., subject: Countering Extremist Activities within the Department of Defense (20 Dec. 2021) [hereinafter Countering Extremist Activities Memorandum]; CEAWG Report, supra note 12. See also David Vergun, DOD Issues Guidance on Plans to Counter Extremist Activity in the
Force, DoD News (Dec. 20, 2021), https://www.defense.gov/News/News-Stories/Article/Article/2880115/dod-issues-guidance-on-plans-to-counter-extremist-activity-in-the-force/.
42. Countering Extremist Activities Memorandum, supra note 41; DoDI 1325.06, supra note 3.
43. Countering Extremist Activities Memorandum, supra note 41.
44. CEAWG Report, supra note 12, at 11.
45. Id. at 12.
46. Id.
47. Id.
48. Id. at 13.
49. Id. at 14.
50. Id.
51. Id.
52. Three Percenters, The Three Percenters—Original—National By-Laws: A Guide to Being a Three Percenter 7 (2020), https://www.milsuite.mil/book/thread/257251 (log-in required to access this source) [hereinafter National By-Laws].
53. Id. at 9.
54. Tess Owen, This Three Percenter Militia Group Just Cancelled Itself Because of
the Capitol Riots, Vice: News (Feb. 26, 2021, 4:02 PM), https://www.vice.com/en/article/3anmkv/this-three-percenter-group-just-cancelled-itself-because-of-the-capitol-riots. The National Council claimed that their organization was misunderstood and that subordinate chapters held different values and morals.
55. The website was previously found at the following URL: https://thethreepercenters.org. See National By-Laws, supra note 52.
56. See National By-Laws, supra note 52.
57. See, e.g., California Three Percenters, Bylaws and Standard Operating Procedures (June 28, 2018), https://www.californiathreepercenters.org/our-by-laws; Washington 3%, The Washington State Three Percenters, Bylaws (n.d.), https://wa3percent.org/index.php/laws.
58. National By-Laws, supra note 52, at 8.
59. Id.
60. Id.
61. Id. at 31.
62. Id. at 43.
63. Id. at 36.
64. Id. at 9. The full oath is:
We ask all Three Percenters to take and keep the following oath under any and all circumstances: “I, _____, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to
the same. I swear (or affirm) to uphold the three principles of a
Three Percenter: have moral strength, be physically ready, and no
first use of force.”
Id.
65. Id. at 10. The by-laws continue:
Any member who is prior or current military/law enforcement should always remember, reflect, and abide by the sworn oath they took. We also propose that these individuals who are current military and/or law enforcement take and keep the following oath from the Oath Keepers organization under any and all circumstances:
1. I will NOT obey orders to disarm the American people.
2. I will NOT obey orders to conduct illegal searches of the American people.
3. I will NOT obey orders to detain American citizens as “unlawful enemy combatants” or to subject them to military tribunal.
4. I will NOT obey orders to impose unjustified martial law or a “state of emergency” on a state.
5. I will NOT obey orders to invade and subjugate any state that asserts its sovereignty.
6. I will NOT obey any order to blockade American cities and thus turning them into giant concentration camps/civilian war zones.
7. I will NOT obey any order to force American citizens into any form of detention camps under ANY pretext.
8. I will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control.
9. I will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies.
10. I will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.
Id.at 9–10.
66. See, e.g., California Three Percenters, supra note 57; Washington 3%, supra note 57.
67. National By-Laws, supra note 52, at 7.
68. Id. at 37.
69. See Three Percenters, ADL, https://www.adl.org/resources/backgrounders/three-percenters (last visited Jan. 9, 2022); Antigovernment Movement, S. Poverty L. Ctr., https://www.splcenter.org/fighting-hate/extremist-files/ideology/antigovernment (last visited Jan. 9, 2022).
70. Three Percenters, supra note 69.
71. Id.
72. David Ljunggren, Canada Puts U.S. Three Percenters Militia on Terror List, Cites Risk
of Violent Extremism,
Reuters, https://www.reuters.com/world/americas/canada-puts-us-right-wing-three-percenters-militia-group-terror-list-2021-06-25/ (June 25, 2021, 10:57 AM).
73. Id.
74. See AR 600-20, supra note 3, ch. 5; see also U.S. Dep’t of Def., Dir. 1344.10, Political Activities by Members of the Armed Forces
(19 Feb. 2008).
75. AR 600-20, supra note 3, para. 5-15a(1)(a).
76. Id. para. 5-15a(1)(c).
77. Id. app. B-2i.
78. Id. app. B-3a.
79. Id. glossary, sec. II.
80. Id. glossary, sec. II.
81. Id. app. B-2h, B-3k.
82. The Soldier may attend a partisan political event as a passive spectator when not in uniform.
83. DoDI 1325.06, supra note 3; AR 600-20, supra note 3, para. 4-12.
84. DoDI 1325.06, supra note 3, at para. 4b(1).
85. Id. at para. 7b.
86. Memorandum from Under Sec’y of Def. to Secretaries of the Military Depts. et al., subject: Implementing of Change 2 to Department of Defense Instruction 1325.06, “Handling Protest, Extremist, and Criminal Gang Activities Among Members of the Armed Forces” (20 Dec. 2021).
87. See DoDI 1325.06, supra note 3; AR 600-20, supra note 3, para. 4-12.
88. U.S. Dep’t of Army, Reg. 25-30, Army Publishing Program para. 2-1c (14 June 2021).
89. DoDI 1325.06, supra note 3, encl. 3, para. 8c.
90. Id. para. 8c(1)(a).
91. Id. para. 8c(1)(b).
92. Id. para. 8c(1)(c). The DoDI further defines terrorism in the glossary as: “The unlawful use of violence or threat of violence, often motivated by religious, political, or other ideological beliefs, to instill fear and coerce individuals, governments or societies in pursuit of terrorist goals.” Id.
93. Id. para. 8c(1)(d).
94. Id. para. 8c(1)(e).
95. Id. para. 8c(1)(f).
96. The DoD’s expansion of its definition of extremist activities is an instance of the proverbial tail wagging the dog, as its definition is now a closer reflection of the definition that the Army had already promulgated.
97. AR 600-20, supra note 3, para. 4-12a.
98. See U.S. Dep’t of Def. Instr. 1325.06, Handling Dissident and Protest
Activities Among Members of the Armed Forces
(27 Nov. 2009) (C1, 22 Feb. 2012) [hereinafter 2012 DoDI 1325.06];
See also DoDI 1325.06, supra note 3, encl. 3; AR 600-20, supra note 3, para. 4-12a.
99. See DoDI 1325.06, supra note 3, encl. 3, para. 8c(2)(a)–(n).
100. Id. para. 8c(2)(g).
101. Id. para. 8c(2)(h) (emphasis added).
102. Id. para. 8c(2)(m).
103. Id. para. 8c(2)(l).
104. Id. para. 8c(2)(n).
105. Id. para. 4-12b. Soldiers also may not attend extremist meetings if they are in a foreign country or violate off-limits restrictions. Id. para. 4-12b(2)(c), (f).
106. DoDI 1325.06, supra note 3, encl. 3, para. 9a; AR 600-20, supra note 3, para. 4-12c. Both publications articulate examples such as an order to remove flags, posters, or other displays, and an order making areas or activities off-limits if any of the aforementioned conditions are satisfied.
107. DoDI 1325.06, supra note 3, encl 3, para. 8c2(n).
108. AR 600-20, supra note 3, para. 4-12e.
109. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. Its protection extends to expression of ideas even those “the vast majority of society finds offensive or distasteful.” United States v. Wilcox, 66 M.J. 442, 446 (C.A.A.F. 2008) (citing Virginia v. Black, 538 U.S. 343, 358 (2003)).
110. Wilcox, 66 M.J. at 447 (citing United States v. Brown, 45 M.J. 389, 395 (C.A.A.F. 1996)).
111. Id. at 448 (citing Brown, 45 M.J. at 395).
112. Id. (citing Brown, 45 M.J. at 395). Compare this with the civilian standard, whether “the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Id. (quoting Schenck v. United States, 249 U.S. 47, 52 (1919)). See also Brandenburg v. Ohio, 395 U.S. 444, 447(1969) (defining the civilian clear and present danger standard as speech “directed to inciting or producing imminent lawless action . . . likely to incite or produce such action.”). In line with this distinction, the newly updated DoDI 1325.06 notes that the military can prohibit extremist activities that courts would likely consider constitutionally-protected activities for civilians. DoDI 1325.06, encl. 3, para. 8.
113. DoDI 1325.06, supra note 3, encl 3, para. 8a.
114. Wilcox, 66 M.J. at 446 (citing Parker v. Levy, 417 U.S. 733, 758 (1974); United States v. Priest, 45 C.M.R. 338, 344–46 (1972); United States v. Gray, 42 C.M.R. 255, 258 (1970)).
115. Wilcox, 66 M.J. at 447 (citing Priest, 45 C.M.R. at 344–46).
116. Id. at 448 (citing Priest, 45 C.M.R. at 343) (discussing UCMJ art. 134 (1950)).
117. Id.
118. Brown v. Glines, 444 U.S. 348 (1980).
119. Id. at 354–58.
120. Id.
121. DoDI 1325.06, supra note 3, para. 3.
122. See DoDI 1325.06, supra note 3, encl. 3, para. 9b; AR 600-20, supra note 3, para. 4-12d.
123. See DoDI 1325.06, supra note 3, encl. 3, para. 9d; AR 600-20, supra note 3, para. 4-12e–f.
124. AR 600-20, paragraph 4-12e, requires commanders to inform Soldiers that 1) any participation in extremist organizations or activities will result in being reported to law enforcement authorities and 2) CID has the responsibility to identify extremist organizations. Commanders should arrange equal opportunity policy training, and advise Soldiers on the wide-ranging potential consequences of participation in extremist organizations and activities, to include possible reclassification or bar to continued service as well as potential impact on evaluations, consideration for leadership positions, access to information technology systems, and security clearance determinations. DoDI 1325.06, enclosure 3, paragraph 9c, encourages commanders to intervene early and counsel their Service members, but does not mandate it.
125. AR 600-20, supra note 3, para. 4-12e(2).
126. Id. para. 4-12e(2)–(3). The Criminal Investigation Division does not disseminate a public list of extremist organizations. They also will likely not open an investigation unless they have some evidence the Soldier is engaging in a prohibited activity; thus, mere display of a sticker will not likely trigger an investigation.
127. See United States v. Wilcox, 66 M.J. 442, 448 (C.A.A.F. 2008).
128. See Brown v. Glines, 444 U.S. 348, 354–58 (1980). See also Wilcox, 66 M.J. at 448.
129. See 2012 DoDI 1325.06, supra note 98; DoDI 1325.06, supra note 3, encl. 3; AR 600-20, supra note 3, para. 4-12a(6).
130. National By-Laws, supra note 52, at 8.
131. Id. at 9.
132. See Off. of Gen. Couns., U.S. Dep’t of Def., Department of Defense Law of War Manual (12 June 2015) (C3, 13 Dec. 2016).
133. DoDI 1325.06, supra note 3, glossary. Similarly, the U.S. Code defines domestic terrorism as “activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; appear to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, or affect the conduct of government by mass destruction, assassination, or kidnapping; and occur primarily within the territorial jurisdiction of the United States.” 18 U.S.C. § 2331 (LEXIS through PL 116-282, approved 12/31/20).
134. As mentioned, this oath includes promises to disavow future orders to “disarm the American people,” “conduct illegal searches of the American people,” “impose unjustified martial law or a ‘state of emergency’ on a state,” “invade and subjugate any state that asserts its sovereignty,” and “blockade American cities and thus turning them into giant concentration camps/civilian war zones.” National By-Laws, supra note 52, at 9–10.
135. Articles 91 and 92 of the Uniform Code of Military Justice (UCMJ) note that an order is inferred to be lawful and is only unlawful if unconstitutional, contrary to other law or lawful superior orders, or beyond the authority of the issuer. UCMJ art. 91 (1950); UCMJ art. 92 (1950). If lawfulness is in question, a military judge makes the determination. Manual for Courts-Martial, United States
pt. IV, ¶ 16c.(2)(a)(ii) (2019). Any refusal to execute a lawful order
could result in a violation of Articles 91, 92, or 94 of the UCMJ. UCMJ
art. 91 (1950); UCMJ art. 92 (1950); UCMJ art. 94 (1950).
136. The revised DoDI also specifically notes that extremist activities
are inconsistent with the responsibilities and obligations of military
service, as well as the oaths of office and enlistment…” DoDI 1325.06,
supra note 3, encl. 3, para. 8a.
137. See DoDI 1326.06, supra note 3, encl. 3, para. 8c(1)(e); AR 600–20, supra note 3, para. 4-12a(8).
138. CEAWG Report, supra note 12, at 16.
139. Id. at 17.
140. Id. at 16.
141. Id. at 14. To date, the Institute for Defense Analyses (IDA) has reviewed DoD policies and data and consulted with experts from across and outside the government. The IDA’s review also included “DoD information-collection systems and data, approaches used for other forms of violence by other federal agencies, and behavioral pathways to extremist activity.” Id.
142. Id. at 14.
143. See SecDef April Memorandum, supra note 39; Kristy Kamarck, Cong. Rsch. Serv., IN 11779, FY2022 NDAA: Extremism in the Military (2021).
144. National Defense Authorization Act for Fiscal Year 2022, Pub. L.
117-81, § 549M (2021) (Recommendations on separate punitive article in
the Uniform Code of Military Justice on violent extremism).
145. Eugene R. Fidell & Lieutenant Colonel (Retired, U.S. Air Force)
Rachel VanLandingham,
Military Personnel and the Putsch at the U.S. Capitol, Just Sec. (Jan. 13, 2021), https://www.justsecurity.org/74165/military-personnel-and-the-putsch-at-the-u-s-capitol/. See also AR 600-20, para. 4-12 d (listing six UCMJ articles as potential options for dealing with a Soldier’s violation of extremism-related prohibitions).
146. See generally CEAWG Report, supra note 12.
147. See, e.g., Helene Cooper, Pentagon Updates Its Rules on Extremism in the Military
N.Y. Times (December 20, 2021), https://www.nytimes.com/2021/12/20/us/politics/pentagon-military-extremism-rules.html.
148. AR 600-20, supra note 3, para. 4-12h.
149. Id.
150. A Martinez, The Pentagon Is Taking Steps to Stop Extremism Within Its Ranks, NPR (Dec 21, 2021, 5:16 AM)
https://www.npr.org/2021/12/21/1066169829/the-pentagon-is-taking-steps-to-stop-extremism-within-its-ranks;
Kat Stafford & James LaPorta,
Decades of DOD Efforts Fail to Stamp Out Bias, Extremism, AP News (Dec. 29, 2021); https://apnews.com/article/business-donald-trump-lloyd-austin-veterans-arrests-aa564fe473dd4c347189bb39ad8a9201.
151. See Cooper, supra note 147.
152. Marek N. Posard et al., Rand Corp, Reducing the Risk of Extremist Activity in the U.S. Military 12 (2021), https://www.rand.org/pubs/perspectives/PEA1447-1.html.
153. Christopher Swecker et al., Fort Hood Indep. Rev. Comm., Report of
the Fort Hood Independent Review Committee
(2020).
154. Id. at iii.
155. Id. at 121.
156. Swecker et al., supra note 152.
157. See Extremism Stand-Down Memorandum, supra note 1.
158. Lieutenant Colonel Allie Payne, Ft. Bliss Announces “Operation Ironclad” to Fight Sexual Harassment,
Sexual Assault, Extremism, Racism and Suicide, El Paso Herald-Post (Feb. 24, 2021) https://elpasoheraldpost.com/ft-bliss-announces-operation-ironclad-to-fight-sexual-harassment-sexual-assault-extremism-racism-and-suicide.
159. See AR 600-20, supra note 3, para. 4-12.
160. AR 600-20, supra note 3, para. 4-12. See National Defense Authorization Act for the Fiscal Year 2021, Pub. L. No. 116-283, § ٣٧٠, ١٣٤ Stat. ٣٣٨٨ (٢٠٢١). David A. Bryant, Commission to Rename Installations Named After Confederates to Meet
in March, Killeen Daily Herald (Feb. 28, 2021), https://kdhnews.com/commission-to-rename-installations-named-after-confederates-to-meet-in-march/article_edab6902-7962-11eb-bac5-7fe993128943.html.
161. Helene Cooper Milley Calls for “Hard Look” at Renaming Bases Honoring
Confederates, N.Y. Times (July 9, 2020), https://www.nytimes.com/2020/07/09/us/politics/milley-trump-confederate-base-names.html. See also David Petraeus, Take the Confederate Names off Our Army Bases, Atlantic, https://www.theatlantic.com/ideas/archive/2020/06/take-confederate-names-off-our-army-bases/612832/#correction%201 (June 9, 2020, 11:43 AM) (noting that Henry L. Benning argued for dissolution of the union and formation of a Southern slavocracy, John Brown Gordon was likely one first leaders of the Ku Klux Klan, and the “irony of training at bases named for those who took up arms against the United States, and for the right to enslave others . . . .”).
162. DoDI 1325.06, supra note 3, encl. 3, para 8c; Karoun Demirjian, The Pentagon Vowed to Confront Extremism in the Ranks. A year After
Jan. 6, Experts Say More Must Be Done, Wash. post (Jan. 5, 2022), https://washingtonpost.com/national-security/2022/01/05/january-6-military-extremistm/.