Should we be worried?: Changes made in DOD Instruction “Handling Dissident and Protest Activities Among Members of the Armed Forces”

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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 there at 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
training programs.

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.