Monthly Archives: February 2012
Should we be worried?: Changes made in DOD Instruction “Handling Dissident and Protest Activities Among Members of the Armed Forces”
Discussion and commentary by James M. Branum, MLTF Chair
On February 22, 2012, the Department of Defense made major changes to DOD Instruction 1325.06 (PDF download).
These changes appear to be part of a major military policy change that is designed to stifle and suppress a growing GI movement against the wars in the Middle East.
Some of the more troubling changes include:
Enclosure 3, section 2. OFF-POST GATHERING PLACES. Commanders have the authority to place establishments off-limits in accordance with established procedures when, for example, the activities taking place
thereat these establishments include, but are not limited to, counseling, encouraging, or inciting Service members to refuse to perform duty or to desert; pose a significant adverse effect on Service members’ health, morale, or welfare; or otherwise present a clear danger to the loyalty, discipline, or morale of a member or military unit.
The changes in this section certainly appear to be directed at the GI coffeehouses at Fort Hood, Joint Base Lewis-McChord and in Kaiserslautern, Germany. Free speech and GI Rights advocates need to be ready to respond to possible moves by commanders to place the coffeehouses off-limits under this newly revised regulation.
Also one could argue that a commander could place a Mennonite Church or a Quaker Meetinghouse on the off-limits list, since these establishments have been known to encourage their members to resist participation in war.
Enclosure 3, Section 8. PROHIBITED ACTIVITIES
a. Military personnel must not actively advocate supremacist, extremist, or criminal gang doctrine, ideology, or causes, including those that advance, encourage, or advocate illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin or those that advance, encourage, or advocate the use of force, violence, or criminal activity or otherwise advance efforts to deprive individuals of their civil rights.
b. Military personnel must reject active participation in criminal gangs pursuant to section 544 of Public Law 110-181 (Reference (i)) and in other organizations that advocate supremacist, extremist, or criminal gang doctrine, ideology, or causes; including those that attempt to create illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin; advocate the use of force, violence, or criminal activity; or otherwise engage in efforts to deprive individuals of their civil rights. Active participation in such gangs or organizations is prohibited. Active participation includes, but is not limited to, fundraising; demonstrating or rallying; recruiting, training, organizing, or leading members; distributing material (including posting online); knowingly wearing gang colors or clothing; having tattoos or body markings associated with such gangs or organizations; or otherwise engaging in activities in furtherance of the objective of such gangs or organizations that are detrimental to good order, discipline, or mission accomplishment or are incompatible with military service.
c. Commanders have the authority to employ the full range of administrative and disciplinary actions, including administrative separation or appropriate criminal action, against military personnel who engage in activity prohibited in paragraphs 8.a. or 8.b. of this enclosure
when such conduct or activity is detrimental to good order and discipline or is service discrediting.
d. The functions of command include vigilance about the existence of such activities; active use of investigative authority to include a prompt and fair complaint process; and use of administrative powers such as counseling, reprimands, orders, and performance evaluations to deter such activities.
e. The Military Departments shall ensure that the policy and procedures on prohibited activities in this Instruction are included in initial active duty training, precommissioning training, professional military education, commander training, and other appropriate Service
On the surface, this section may not look so troubling. The military has, at least officially, long banned its members from active participation in hate groups. However, if read carefully, these changes are in fact very troubling. First, the DOD does not define the term “extremist” anywhere in this regulation, which opens the door for soldiers to be prosecuted for mere membership in peaceful organizations that are deemed to be “extremist.”
Secondly, the DOD has omitted the requirement (previously found in section 8 (c) above), that prohibited conduct or activity in a banned organization must be “detrimental to good order and discipline or is service discrediting.”
Third, the DOD has now banned even the wearing of clothing or colors off-post that would reflect membership in one of the loosely defined banned organizations.
Enclosure 3, Section 9. PREVENTIVE ACTIVITIES
a. Commanders should remain alert for signs of future prohibited activities. They should intervene early, primarily through counseling, when observing such signs even though the signs may not rise to active advocacy or active participation or may not threaten good order and discipline, but only suggest such potential. The goal of early intervention is to minimize the risk of future prohibited activities.
b. Examples of such signs, which, in the absence of the active advocacy or active participation addressed in paragraphs 8.a and 8.b are not prohibited, could include mere membership in criminal gangs and other organizations covered under paragraph 8.b. Signs could also include possession of literature associated with such gangs or organizations, or with related ideology, doctrine, or causes. While mere membership or possession of literature normally is not prohibited, it may merit further investigation and possibly counseling to emphasize the importance of adherence to the Department’s values and to ensure that the Service member understands what activities are prohibited.
This entire section is completely new to the regulation, and requires that commanders be alert for “future prohibited activities.” While the regulation tries to skirt the line of not violating the First Amendment (i.e. “mere membership or possession of literature” is not prohibited), it makes it clear that commanders are expected to “investigate” such soldiers, which will inevitably result in negative counseling statements (blackmarks against a soldier’s record) and subsequent harassment from NCO’s (non-commissioned officers).
As a whole, the newly revised DOD Instruction 1325.06 poses serious dangers for the civil liberties of all military servicemembers. We at the Military Law Task Force of the National Lawyers Guild remain ready to do our part to protect soldiers in need. Please do not hesitate to contact us, if we can be of assistance.
UPDATE ADDED ON FEBRUARY 25, 2012: In section 8 (b) above, the DOD bans organizations that “attempt to create illegal discrimination based on race, creed, color, sex, religion, ethnicity, or national origin.” Interesting enough, in the post-DADT era, sexual orientation didn’t make the list.
By James M. Branum
Chair of the Military Law Task Force of the National Lawyers Guild
February 22, 2012
Growing up in small-town Oklahoma, one of my greatest influences was the Boy Scouts. I learned some of my first lessons in civics through the Boy Scout Handbook. The Handbook told me that the United States was a different kind of nation, a nation composed of people with roots from around the world, but united by certain shared ideals — democracy and due process of law. I took that message to heart because I thought it was proven by the history I learned in school.
Later, I learned that the Handbook and History class didn’t tell the whole story. America’s history wasn’t always so noble. We as a nation have not always been on the side of “liberty and justice,” and sometimes our noble words have really been “bounced checks on the Bank of Justice” (to paraphrase Dr. King’s famous “I Have a Dream” speech). But I believe that our collective failure to always live up to those ideals does not negate their value to the soul of our Union, always striving to be “more perfect.”
These ideas have been pressing on my mind lately as I think of the case of accused Wikileaks whistleblower PFC Bradley Manning.
After almost two years of delay, PFC Manning will likely be tried this summer before a US Army court-martial. While the world watches how this case unfolds, I think it will become clear that our nation is on trial too. There are two charges pending : (1) through its gross overreaction to real security threats, the US has forsaken any semblance of democracy, and (2) The US government does not respect due process of law.
If we are a democracy, which requires informed citizens, why has critical information about the wars in the Middle East been kept from us? It should not have been necessary for a private first class in the Army to allegedly leak this information in the first place. If anything, we as a nation should be thanking PFC Manning for performing this important national service.
And are we really a nation that protects due process of law, when PFC Manning’s treatment has included:
- Solitary confinement for 10 of the 19 months he has been in confinement thus far,
- Cruel and humiliating treatment during much of his confinement, including periods when his clothing was taken away by prison officials,
- A preliminary (Article 32) hearing that was conducted by a biased hearing officer, who was chosen by the same officials that chose to bring charges against PFC Manning,
- The denial of almost all of his request witnesses at that same Article 32 hearing, and finally
- A trial whose outcome will be determined by a jury panel composed solely of high ranking members, who have been handpicked by the same officials who are PFC Manning’s accusers.
It is not too late for the US to undo this injustice, by dismissing all charges against Bradley Manning.
I urge all people of conscience to join the campaign to free Bradley Manning.
The following press release was sent out by the Oklahoma Center for Conscience and Peace Research, an organization that several MLTF members are involved with. We are also pleased to report that Bradley Manning has also been nominated for Nobel Peace Prize by several members of the Icelandic parliament.
Oklahoma Center for Conscience and Peace Research
Accused whistleblower deserves the prize for casting light on war crimes committed in Iraq, nomination states
The Oklahoma Center for Conscience and Peace Research (OCCPR) announced on Tuesday that it has nominated US Army Private First Class Bradley Manning for the Nobel Peace Prize.
In its nomination, OCCPR stated that it chose Bradley Manning because of his alleged role in leaking documents and other evidence of war crimes, corruption and lies related to the US wars in Iraq and Afghanistan, including the notorious “collateral murder” video (downloadable online at www.collateralmurder.org) which US forces firing on unarmed Iraqi civilians, members of the press
“Bradley Manning should have received full whistle-blower protections for his actions but instead has
served 19 months in prison without a trial, including 10 months spent in solitary confinement,” said
James M. Branum, OCCPR Legal Director.
“We understand that PFC Manning will be placed on a military show-trial, where his guilt will be
determined by a ‘jury’ hand-picked by the very command that is accusing him. We have no doubt
that, absent international pressure, PFC Manning will be found guilty and sentenced to life in prison or
possibly even given the death penalty, without a hint of justice applied in his case. We have made this
nomination in the hopes that it might lead to renewed attention and concern given to his plight.”
OCCPR has exhibited its support for Manning since news of his arrest was first announced, holding
a number of rallies and advocacy events on his behalf. “Because Bradley is an Oklahoma native, we
feel a special responsibility to show that there are Oklahomans who support him, seek his freedom
and will continue to work for his cause,” said Rena Guay OCCPR Executive Director. “We have
spoken to media from around the world about our interest in the Manning case, because the whole
world is watching what the United States will do to someone who they believe has exposed secrets
about war crimes, diplomatic doublespeak and policy hypocrisy.”
OCCPR was founded in 2004 and works to increase understanding of conscientious objection
and resistance to war. Its founders include religious and veteran groups; its fiscal sponsor is Joy
Mennonite Church of Oklahoma City.
For more information:
James M. Branum