Category Archives: Active Duty Dissent, Resistance and Whistleblowing

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 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.

Army Times article notes troops’ presence in Occupy movement, cites MLTF

An article was published in the November 18, 2011 issue of Army Times, Navy Times, et. al. (Gannett-owned publications that serve the military community) that highlighted how off-duty servicemembers and veterans are participating in the Occupy movement across the country.
‘Occupy’ protests lure veterans

Joining the ranks of hundreds of Occupy offshoots that have sprouted up in cities across the country, veterans are enlisting in the grass-roots movement in increasing numbers, even ascending to leadership positions.

They are also among the movement’s first casualties.

A sidebar article offers insight into the rights of military personnel and veterans to protest.

Military officials said troops are free to participate in Occupy rallies but are prohibited from wearing their uniforms or presenting themselves as official spokespeople for the military.

That goes for those who have been discharged from active duty or drilling Reserve units but are still in the Individual Ready Reserve. All service members incur an eight-year obligation to the military — regardless of contract length — and are subject to involuntary recall from the IRR at any time during that period.

While it’s rare for veterans in IRR status to be charged for violating uniform rules, it’s not unheard of.

MLTF Executive Director Kathleen Gilberd was interviewed for this piece, and her contribution helped clarify the the concerns of troops and commanders alike.

Even when they aren’t technically breaking any rules, troops can find themselves facing repercussions, legal experts said.

“Commanders can sometimes get a little overzealous when they see someone at a protest on TV that they don’t like,” said Kathleen Gilberd, executive director of the Military Law Task Force, a San Diego-based advocacy group. “The rights are pretty clear, so often what happens is commands will informally harass them.”

Troops should be especially wary of attending protests where violence is likely, she said.

“The regulations say you shouldn’t go to a demonstration where violence or a ‘breach of the peace’ is likely to occur. But that’s pretty vague,” Gilberd said.

And commanders shouldn’t use that rule as a catchall to keep troops from attending rallies they don’t like.

“They can’t just say ‘don’t go there’ because they think something might happen,” Gilberd said.

 


Bay Area workshop on servicemembers’ rights to protest, Nov. 15

Servicemembers and Veterans Occupy!

SAN FRANCISCO – As part of the 99%, military servicemembers and veterans have been participating in Occupy protests in droves. But what are the consequences for such actions? Can servicemembers be punished under the Uniform Code of Military Justice for such protests, or do the freedoms guaranteed by the U.S. Constitution apply to them, too?

Please join the Bay Area Military Law Panel of the National Lawyers Guild, Iraq Veterans Against the War, Veterans for Peace, the GI Rights Hotline – SF, Courage to Resist, and Swords to Plowshares for a workshop on servicemembers’ rights to protest and related issues.

Tuesday, November 15, 2011
7:00pm – 9:00pm

Legal support for servicemembers, reservists and veterans participating in Occupy Wall Street actions

The National Lawyers Guild has endorsed the Occupy Wall Street protests in New York City and thousands of cities world-wide and offered legal support.

Members of the US military have joined the OWS protests in many locales. As the Military Law Task Force of the NLG, we stand ready to coordinate legal support for active duty servicemembers, reservists and veterans who are facing harassment and/or legal sanctions for participating in these important protests. (We can be reached by telephone at (619)463-2369 or on our website at this link.)

We also want to correct some of the misinformation given to members of the military about the right to protest. Contrary to popular opinion, active-duty members of the military do retain some of their constitutional rights. While there are some military-specific restrictions on these rights, most protest actions are in fact legal.

NLG endorses Occupy Wall Street movement, calls for members to join

EMERGENCY RESOLUTION BY THE NATIONAL LAWYERS GUILD ENDORSING THE OCCUPY WALL STREET MOVEMENT IN NEW YORK CITY AND OVER 1500 CITIES AND CALLING UPON LAWYERS TO JOIN THE PEOPLE.

WHEREAS, on September 17th, 2011, two thousand people rallied in response to a call, using the General Assembly process, to occupy Wall Street and march to protest corporate influence in the political process. As of today, over 1500 cities have formed their own Occupations, gathering in General Assemblies in public spaces across the United States. Applying principles of direct democracy and consensus, and using the internet, these General Assemblies are determining the grievances, solutions and systemic changes needed to protect the 99% from the environmental, social and economic abuses of the 1%. This includes, which this Resolution incorporates by reference, the Declaration of the Occupation approved by consensus on September 29, 2011 at the New York City General Assembly in the occupied Liberty Square.

WHEREAS, the United States government and the U.S. Courts have repeatedly violated the United States Constitution in repressing 1st Amendment rights of freedom of association, assembly and speech, and in denying habeas corpus and due process first to foreign enemy combatants and now to U.S. citizens accused of terrorism abroad,

WHEREAS, when the rule of law was no longer respected in Argentina, Pakistan, India, Tunisia, other nations during the Arab Spring, and worldwide, exasperated lawyers marched in protest hundreds of times,

THEREFORE BE IT RESOLVED that the National Lawyers Guild endorse the Occupy Wall Street movement, encourage legal observation and mass defense and call upon lawyers, legal workers and law students to march alongside the people in solidarity with the Occupy Wall Street movement. The National Lawyers Guild will also support the Occupy Wall Street movement by providing specific information on the U.S. treaty laws protecting the rights demanded by the people.

Submitted by Valeria A. Gheorghiu, Esq.
Approved by the membership at the NLG National Convention, Philadelphia, PA, October 2011