A few months ago, MLTF member attorney James M. Branum was interviewed on the Clearing the Fog podcast, which can be heard here.
We also now have a transcript of the interview which we are sharing below:
(Music bv David Rovics)
Margaret Flowers 00:33
You’re listening to clearing the fog speaking truth to expose the forces of greed. With Margaret Flowers, clearing the fog is a project of popularresistance.org you can subscribe to it on Apple, SoundCloud, mixcloud, Stitcher and Google Play. You can also find clearing the fog at popular resistance.org and while you’re there, check out our store. You’ll find great clearing the fog gear like T shirts, bumper stickers, tote bags and water bottles while you’re at popular resistance.org you can also subscribe to the free daily digest. Each morning, you’ll receive an email that has summaries of the articles posted the day before. This is a great way to keep up with movement news and analysis.
Margaret Flowers 01:16
So this week, I interviewed James Branum. James is a lawyer from Oklahoma and a past chair of the military law task force for the National Lawyers Guild. James talks about the legality of the Trump administration federalizing the National Guard in California, sending Marines to Los Angeles to patrol the protests there against the ICE raids and the history of the use of military domestically, as well as what the law says and, most importantly, what military members can do if they want to refuse orders that they believe are illegal or avoid being deployed in a fashion that may go contrary to their beliefs. James talks about what the law says there and what resources people have. It’s interesting. He also says that the number of members of the military reaching out to groups that are part of the GI resistance networks has increased significantly this year.
Margaret Flowers 02:23
A main concern of having the military deployed domestically, in addition to the legality of that, is, as James McPherson, the Under Secretary of the Army during the first Trump administration, warns, is that, quote, combat Marines are trained and exercise in just that, engaging in ground combat. They’re not trained, and they do not exercise in crowd control or de escalation or things like that. One person has already been detained by the Marines and was handed over to the Department of Homeland Security, the Posse Comitatus Act bars the use of the military to enforce domestic laws, and the only way really to get around that is through an act of the Congress or something that’s expressly authorized by the Constitution.
Margaret Flowers 03:18
One exception to the Posse Comitatus Act is the insurrection act, and people are concerned that President Trump might invoke the insurrection act. This would allow the President to order military forces, even though the objections of a state governor, there are three situations in which a president could legally invoke the insurrection act. One is if a legislature or governor asks for the President to do that. The second is that if the president decides that, quote, unlawful obstructions, combinations or assemblages or rebellion against the authority of the United States render it impracticable to enforce us or state law. The third one is very vague, and this one says where any insurrection, domestic violence, unlawful combination or conspiracy, deprives people of a legal right, privilege, immunity or protection. So seems like there’s a lot of wiggle room there, and it’s possible that the President will invoke the insurrection act. Is something that we have to be prepared for, and communities are doing their best to protect each other and to push back against this, the ICE raids and against the use of military domestically.
Margaret Flowers 04:35
Before I get to that interview with James Branum, I want to talk about a few things that are in the news and top on my list today is the US Israeli war on Iran. Last week, the United States began voluntarily evacuating the dependence of military members from West Asia and the staff from the US Embassy in Iraq, and this was ahead of a. June 12 deadline that the US government had given to Iran to come to an agreement. In fact, the United States and Iran were set to meet over the weekend to continue negotiating that agreement. Instead, on the 12th, the illegal occupying state of Israel began a military attack on Iran and sending bombs to Tehran and throughout the country of Iran. The US initially said that they didn’t have any advanced knowledge of the Israeli attack on Iran that really didn’t pass the smell test and the cradle reported that the United States had secretly delivered about 300 Hellfire missiles to the Israeli military last week. They arrived on Tuesday, on the 13th, Iran retaliated. There was some delay, initially, because the Israeli attack killed some of the leadership of the Islamic Revolutionary Guard Corps. But on June 13, Iran launched Operation true promise. Three Yemen also joined in bombing Israel. And once this happened, the Trump administration then admitted that it had knowledge of the attack. Sources report that the United States was directly involved in assisting that attack, and certainly there were countries that were helping to try to stop the missiles from Iran heading to Israel. Since the 13th, Iran and Israel have been attacking each other. Vijay Prashad writes that this was something that has been going on. The antagonism of Iran has been going on for a very long time. He writes that Israel’s attacks on Iran since 2023 have all been illegal and in violation of international law the United Nations Charter, Prashad writes that if Israel had concerns about Iran, there were many mechanisms under international law that Israel could have used to bring complaints, but it refused to do that. Initially said that this was about concerns that Iran would develop nuclear weapons. Of course, Israel is a country that has nuclear weapons. The IAEA has consistently said that there is no evidence of a nuclear weapons program in Iran, and Iran also has a fatwa against nuclear weapons. It’s a member of the Non Proliferation Treaty, and for decades, Iran has been calling for a nuclear free zone in that region. But what’s really coming out is that this is not about Iran’s nuclear program, it’s about regime change, and this is something that’s been documented by Israeli think tanks and strategic planners that they would like to dismantle the Islamic Republic and put in place a friendly government, and this is their effort, continued effort, to go after the Axis of Resistance, which is a group of countries in Western Asia who are acting against Israeli aggression in that area now, the Israeli government is calling for more direct involvement by the United States and anti war.com. Is reporting that their sources who are familiar with what the plans are, are saying that the Trump administration is ready to enter the war directly against Iran, that US airstrikes could begin this week. Antiwar.com is asking people to contact the White House or send an email, call them, send an email. The phone number is 202-456-1111, 202-456-1111,
Margaret Flowers 09:08
tell them that you do not want the United States to enter into this war. The United States initially was trying to say that it wasn’t involved because it was asking Iran not to target the many US military bases surrounding Iran and in that region. But Iran says it has direct evidence that the United States is involved and that it would be targeting us bases in the region. If there are any direct us strikes, the Hezbollah in Iraq also says it will target US bases if the US more directly intervenes. And now in the media, there’s starting to be kind of these ideas of a potential false flag event happening. The US Naval Institute reports that the USS Nimit aircraft carrier, which was built in. 1975 is headed to West Asia. This was likely to be its last deployment, and so there are concerns that the Nimitz may be used to be kind of a Gulf of Tonkin incident, if you remember that from the war on Vietnam, that could be used as a reason for the United States to justify intervention directly in Iran. Quds news is reminding people to please, keep your eyes on Palestine as so much of the news is now talking about what’s happening in Iran and what’s happening in the occupied Palestinian territories that are, you know, occupied by Zionists, and what’s happening in Palestine continues to be terrible, bombing, destruction, murder, starvation. The Israeli occupying military is bombing Gaza. Israel is taking more land in the West Bank and putting Palestinian communities on lockdown. They’re continuing to kill people who are seeking aid in Gaza through this so called Gaza humanitarian fund, as they are trying to get much needed food supplies in an aid worker who’s part of the ghf, has blown the whistle saying that the workers were given weapons but no training on how to use them. They had no cultural training. The first day that the aid was put out, the aid center was swamped, because let’s remember that there’s been a total blockade of Gaza since March 2, and the workers didn’t know what to do. They shut it down. The Israeli military is embedded in these aid centers and is shooting people. There were also aid workers who fired shots when they panicked. Since the end of May, when this aid effort, the so called aid effort, began, at least 240 Palestinians have been killed, and more than 2000 of them have been injured. Last week, Israel knocked out the internet in Gaza, and so people could not even communicate or find out if there was any aid available. So as the crisis in Gaza continues, people from around the world continue to mobilize to try to get there and bring aid to them. You remember the Freedom Flotilla was stopped, and all of the volunteers on that vessel were taken off and put into Israeli prisons. The last three of those volunteers have now been freed and are heading to Jordan, but the Freedom Flotilla says that they will continue trying to break through the blockade. And then there is a global march to Gaza that was meeting in Cairo, Egypt last week to head to Rafa. They plan to head to Rafa over the weekend and set up an occupation at the border there, where there are many trucks full of supplies that could go into Gaza to bring food and other medicines and things that are needed there, they wanted to set up this occupation to demand those trucks be allowed in, but many of the people who plan to participate in the global march to Gaza were detained and deported as they arrived in Egypt. In addition to that, there is a samud convoy that came from Tunisia, and they were blocked in Libya, as people did try over the weekend, the folks who did make it tried to make it to Rafa. They said that they were attacked by people who were paid by the government of Egypt to attack the convoy, and so they were not been able to set up that occupation. Over the weekend, particularly on Sunday, there were massive marches in solidarity with the global march to Gaza around the world. And then other resistance that is happening to the genocide being committed by Israel is dock workers, more and more are refusing to load ships that are going to carry military supplies for Israel. And most recently, there were dock workers in France and Italy who refused to load a ship for Israel. Let’s see. In other news, President Trump’s birthday military parade in Washington DC turned out to be a big flop. It was very poorly attended, and the military members who were marching in that parade did not look proud or very happy to be there. They were. They’ve been mocked by people across the country and around the world. There was an unprecedented amount of security in Washington, DC, with these very tall fences extending all along the Mall and to the White House, this is more security than has existed in past inaugurations and Colonel Anne Wright, retired Colonel Anne Wright, writes that quote, it is quite ironic that Trump and his. Advisors feel that the mighty US Army personnel and equipment must be protected from its citizens. I suspect that all the way from top leaders of the army down to the army privates that are driving the tangs and other equipment in the parade are embarrassed about Trump’s decision to politicize the anniversary of the founding of the US Army, and then feel the need to protect them from their fellow citizens. In response to the military parade the day before, on Friday evening, June 13, hundreds of US military veterans held a rally in Washington, DC with a press conference in front of the Supreme Court, and then they marched over to the Capitol, broke through the barricades and staged a protest on the steps of the Capitol calling for the military off our streets. This was organized by about face Veterans for Peace and other veterans groups, and about 60 of them were arrested for peacefully and non violently sitting on the steps of the US Capitol over the weekend, also protests against ICE raids continued in Los Angeles. They’ve spread to many cities around the country now, Seattle, Washington, New York City, Chicago, Denver, Dallas, Boston and Atlanta. There have been massive protests outside of Delaney Hall in New Jersey over the treatment of the people, mistreatment of the people who are being detained there. So this movement to protect communities from ICE raids, when members of ice are are going after people who are here legally. They’re going after people indiscriminately. They’re doing military style raids. People are continuing to protest them and to defend their communities, and it’s not going to stop. So that’s why this interview with James Branum is so important. I hope that you’ll listen. We’ll take a short musical break and then come back with that interview.
Music 17:01
There’s something happening here. What it is ain’t exactly clear. There’s a man with a gun over there telling me I got to be where I think it’s time we stop children, what’s that sound Everybody look what’s going wrong. Nobody’s right, if everybody’s wrong, young people speak in their minds are getting so much resistance from behind family stops. Hey, what’s that sound? Everybody look what’s going down? What a field day for the heat in the street, singing songs and to carry inside mostly say, hurry for our side. It’s time we stop. Hey, what’s that sound
Margaret Flowers 18:41
you’re listening to clearing the fog speaking truth to expose the forces of greed with Margaret Flowers. And now I turn to my guest, James Branum. James is a solo practice attorney who practices primarily in defending military service members in courts martial administrative boards and related matters. He’s a past co chair of the National Lawyers Guild military law Task Force, and currently serves as a volunteer for the mltf. James, thank you so much for taking time to speak with me today.
James M. Branum 19:14
Yes, thank you for having me. I really appreciate the chance to speak to your audience.
Margaret Flowers 19:18
Well, this is an important issue, and I hope that we can spread the word, because things are really seem to be escalating right now. Before we get into talking about today, we’re going to talk about kind of the the ICE raids that are happening across the country, and the invocation of bringing in the National Guard and and the military, the implications of that. But before we get to that, can you tell the listeners about the National Lawyers Guild, military law Task Force?
James Branum 19:46
Sure, the military law Task Force is a part of the broader National Lawyers Guild, but we’re an organization of lawyers and legal workers and barracks lawyers, which is barracks lawyers are members the military who help. Other service members with administrative problems they have. We’re a broad based organization of those groups, and our focus is helping and equipping those who help service members with the resources they need to effectively do them. But we also are doing this from a unique perspective, and that’s where the NLG part comes in. The National lawyer skilled as an organization of legal activists that is focused on an anti Imperial, anti capitalist approach to the law. And so we take that analysis with us as the mltf, but we do so in a nuanced, thoughtful way, seeking to amplify the rights of service members. And especially we focus a great deal of our efforts on helping service members to find their their own voices and to exercise their their their free speech rights within the law. You know, some, some of our things we do. We do. We publish a quarterly journal that’s aimed at practitioners. We also do continuing legal education trainings, and we also partner with a lot of organizations, including Veterans for Peace, about face, Veterans Against the War, the GI rights hotline and many others in working on these issues. And we were really we have some really good working relationships with these organizations.
Margaret Flowers 21:14
Yeah, it’s fantastic work and so necessary. So let’s talk a little bit about what’s going on. I’d like to start with your thoughts on what’s happening across the country. Night right now, with the ICE raids that are taking place,
James Branum 21:28
we are in a very different territory than we’ve been in recent years. Us. History, of course, is full of times of government repression, of people that part of is not unique. What is unique, at least in the modern era, is the attempt of the current administration to involve military forces in civilian matters here in this country, doing things like deployments of National Guard, sending in Marines into US cities. This is something that hasn’t happened in some time, and it really is deeply frightening. It’s also deeply frightening to me because of the legal uncertainty of it. One of the challenging things we right now have a district court in Cal federal district court in California, who is which is said that this, this kind of deployment, is unlawful. Now we have the circuit court that has put that on hold. This level of uncertainty is deeply distressing. And for me, from a constitutional standpoint, the balance of powers we have here between the three branches of government, but also in our federal system, the balance between state and the federal government is really at a very gradual situation. And we literally, from members of the National Guard for interstate states like California and Texas, they’re in situations where that they may be given conflicting orders at some point between what their governor might say, what the President might say, it’s this is not a good situation.
Margaret Flowers 22:53
Yeah, no. And I was just watching a clip, actually, before our interview of a sheriff from Brevard County, Florida, who was outlining the consequences for people who would, who would try to obstruct ice from taking people. And he literally said, you know, if you interfere, then we’ll notify your family where to pick up your remains. It feels like we’re very like extra legal territory right now and not much consideration for the law,
James Branum 23:25
would you absolutely and I think the other problem, though, is, I mean, the extra legal stuff is terrifying, but what’s also terrifying is what is currently in the law. If you look at federal law with regards to obstruction of federal agents, the penalties are extremely high. Multiple years in prison are potential, potential consequences. And so we are in a very difficult situation right now in this country where ordinary people are standing up for the neighbors, saying, No, we do not want our neighbors to be kidnapped off the streets and shipped to who knows where the problem is is that if it’s deemed as being obstructing what is going on, there is a very serious risk of criminal prosecution, and again, the potential risk of multiple years in prison as a possible, as a possible punishment. That’s, I’m not saying that to be alarmist. I’m saying that’s that that’s the reality. If we look at the the SEIU president, who was, who has was arrested and charged with obstruction, if you look at on the US Code, what he potentially could be facing prison time, and wise, it’s appalling. And the fact that this is actually again in the past, are the US, the federal authorities, yeah, these things have been in the books for a long time, but no one seriously thought that anyone would be charged with these kinds of crimes. And that’s, that’s exactly where we’re going. And so it really, for for civilian activists, it’s, it’s has some deeply troubling questions. For people in the military, it raises a whole other set of questions. We’ll talk about more in a little bit. But it’s, is this is a bad situation?
Margaret Flowers 24:56
Yeah, yeah. I was just remembering that the judge who was arrested. Um, because someone was allowed to leave her courtroom and then was picked up by by ICE agents.
James M. Branum 25:08
You mentioned that also, you know, I’ll mention real quick on that judge, you know, I think in the end, she will be acquitted. That’s my prediction based on the circumstances of the case. But the problem is, is that even if someone ends up being acquitted, their life can be seriously disrupted by being arrested, by being entangled in the system. And I think that is intentional. I think this, and I think I think we’re going to start seeing more and more prosecutors push charges on people where they have questions, where the facts are pretty questionable, whether they really have enough to prove beyond reasonable doubt someone is guilty of a crime. The bar that for prosecutors to bring charges is much lower than the chart, then the bar they need to get a conviction. And so that’s another problem we’re going to start seeing more and more of is weaponized prosecutions, right?
Margaret Flowers 25:51
And, of course, it sends a message to other judges. You know, this is what you’ll face if you risk, you know, doing the same thing you mentioned that, that this has happened before. My understanding is during the Civil Rights Movement, there were times when, you know, the guard were deployed. Have they ever been deployed in this manner to suppress the rights of people in this way?
James M. Branum 26:15
Not exactly in this way, but if you I would, I would go back much further back, but over 100 years ago, of course, we have the Ludlow massacre that happened in Colorado. Colorado National Guard massacred striking miners and their families. We have a lot of abusive use of the National Guard, but most of the time that was done under state authority, that state governments use the National Guard as their bullies to shut down unionization efforts to did that? Did that just happen at the state level, at the federal level, not so much, in fact, more often in recent years, and say, the last 50 years or so, that when National Guard troops have been federalized, it’s often been to protect civil rights, and I’m thinking about during the Civil Rights Movement, when finally, finally, finally, they started deploying the National Guard to enforce desegregation orders. It took forever for that to happen. It did eventually happen. There’s also, of course, deployment of the National Guard during the 1992 riots in California. There’s been, there have been times that this has happened, but this scale, and particularly when you’re dealing with it’s really designed to stop lawful protest actions. Another piece of this, though, I also am really concerned about this, and that is is that by bringing in military force into into responding to peaceful protest actions. What it does, it also empowers bad actors to take advantage of the situation and try to inflame things worse, Agent Provocateur type of situations. And I think we’re going to, we’re going to see more of that. Unfortunately, I think tomorrow, I think there’s, there’s a real danger of people who are going to implant themselves into lawful protest, people who are using their free speech to speak out of what’s happening in this country. And there are going to be people there who are going to try to inflame a conflict with law enforcement or military forces. These are not the people. I mean, these are outsiders. These are going to be people that are trying to cause problems. But unfortunately, the Trump administration has created, has empowered those people, right? Has really, in many ways, has given them the green light that, yes, please, inflame things. Because we really, we want to rumble, we want to fight. And that’s is a really scary situation. I do think, though, now more than ever, it does require activists to Give careful thought of safe protesting approaches, doing things like making sure you have family members and friends that know where you are having a plan for if you were arrested, who would you call doing things like making sure not to carry contraband on your person during a during a protest, Just to avoid even the chance of law enforcement arresting you and making one problem become much worse. There’s, there’s some practical things to be aware of. On the other hand, I think it’s also critical that people do protest. We have to push back and non violently, yes, but we need to push back. We have to be to to take to the streets and do whatever is necessary, right?
Margaret Flowers 29:21
That’s important advice. And I think there’s information out there folks might want to check out. Know Your Rights type of materials that are available, understanding what you you know can and cannot say when you’re speaking to law enforcement, or you know would be advised of your rights in what you say so that you don’t incriminate yourself. But also I know like understanding the local laws in Washington, DC, someone can be a charged with assaulting a police officer, simply for if you fell down and your leg or your arm brushed them, that can be considered assault. So you have to be very careful understanding what your local laws are
James M. Branum 29:58
absolutely what I do think. Positively, there will be some places where, for instance, here in Oklahoma City, we the the local activist community, we have a reasonably good relationship sometimes with law enforcement. And so that does help when you can when, when there is already a relationship of of understanding that that law enforcement, in some context, is going to be hands off is but that’s not the case everywhere. And I think more and more, one of the dangers is, again, by bringing me one of the challenges I see, particularly with this sending in National Guard and Marines into situations, is you have communities where that the activist community, local officials have worked out some degree of protocols of how to how to engage in nonviolent protest, with with without unnecessary intrusion by law enforcement and by bringing in National Guard in this kind of way. It’s upsetting that that whole, that whole balance. It’s upsetting the ability of people to be be free, to be to be at a protest, to not be scared being arrested, just as their rights, and that is that is being upset in some pretty significant ways,
Margaret Flowers 31:07
right, right? And I know from protesting around DC, you get to know there’s a lot of familiar faces in law enforcement. You see them over and over. So they have that familiarity. They know what you’re generally doing, you know how you operate, not your specific plans, but you know, they have a sense of that. When you bring in these outside folks, they don’t have any connection to the community. They don’t know any people at all. And could you maybe speak to this about the difference in training and weapons between kind of local law enforcement and bringing in military members?
James M. Branum 31:36
Yeah, dramatically different members the military, unless you’ve been trained in military as a military, in military police or related a military occupational specialty. You’re not being trained in crowd control. You’re not being trained in civil rights. You’re not being trained on what are the boundary lines for that? And in law enforcement, we know that civilian law enforcement, let’s be frank, is not terribly well trained in many places, that there’s major, major problems. We’re very well aware of the issues of police brutality, and so I don’t want to by saying that law enforcement is better equipped. I’m not saying that law enforcement has their act together. I don’t believe they do in many cases. What I am saying is that that minimal level of training is largely non existent in the military for the average person being sent on these deployments and so that, but not enough training that should be happening that is non existent in the military context. Also, other issues are going to be just the scale that law enforcement again are again, hopefully in a major metropolitan area, are trained in de escalation tactics. How can if a protest is moving in a more violent direction, how can that be de escalated? That training is not happening in a military context. It’s non existent. And one of the problems is, is, frankly, let’s be frank, in a what, how the military is trained is often to take advantage of instability in an environment that they’re in. For instance, if US troops are deployed in a foreign location, in a in a war context, often they are looking for ways to further destabilize a situation, to gain the upper hand. That’s obviously not an appropriate tactic. And when dealing with civilian people in the United States, it’s just not a good situation.
Margaret Flowers 33:30
Yeah, yeah. So let’s talk more specifically about what’s happening in California. On June 6, ice began doing these raids around Los Angeles and other areas, there was not any prior notification given to the governor, and these were like military style operations. What can you talk a little bit about? If you know what the legality of this situation is,
James M. Branum 33:54
well, and that’s that part of the problem is, is that there’s a lot of uncertainty. We have a situation where that the executive branch is. The Trump presidency is pushing, pushing, pushing to take actions that have not been tested in in the courts yet very well. And so we have, we do have some case there is some case law. There are statutes that would, I think we would push back on the legality of some of these actions, but they have not really been tested as adequately as we would like, and so because of that, there’s not as much precedent as we would like, and there’s just a lot of uncertainty. And we saw that yesterday. We saw the federal district court in California say this, these deployments are unlawful. Friday, noon, this shuts down. I’m putting a temporary hold on this order, very limited time to allow allow for appeals. But control of the California National Guard will be reverting back to the Governor of California now, the circuit court, the that next level of the appellate, federal appellate system, has stepped in and said no, but that that’s put on hold. But. On how this will play out. We don’t know. Will this be quickly resolved at the Circuit Court level? Probably not. But even if it does, we can expect an appeal, appeal from from from one or both sides to the US Supreme Court. We could be at, I think, best case scenario we could be looking at weeks before there’s certainty about about these deployments, and that’s probably being very optimistic on the timing of this. And so, you know, one of the challenging things where I would say to the united in the United States, we operate with what’s called a common law legal system, and it’s a kind of way of organizing a government that is very that the UK, British Commonwealth wealth, the United States, a few countries have this kind of system. Most of the other countries the world use a system. The difference between these two systems isn’t in the common law system. We rely much more heavily on case law of judges. In other words, our statutes are not written with the level of specificity that they’re written in civil law jurisdictions. So that means there are some significant questions that are just unresolved, that unless Congress went in and laid things out more clearly. Until that happens, it’s up to the courts to sort this out, and particularly when dealing with our Constitution, our Constitution the First Amendment, which is so much of this whole circumstance revolves around is, you know, 25 to 30 words, a pretty short thing. It requires a great deal of interpretation. And the problem is we have our current fascist presidential administration is pushing, pushing, pushing so quickly and we’re not the judicial system has no way to adequately assess these situations, rule on the constitutionality, and then after that, we’re stuck with a situation where, who’s going to enforce those court rulings? It’s going to go back to the executive branch. That’s what is especially troubling at this moment, is we, we really don’t know where this is going to go. Is this going to be a situation that at some point the courts rule decisively these kinds of involvement of military, of the US, military and civilian affairs, is unlawful, unconstitutional, must be stopped when that happened. We don’t know or if it will, but even when it does, then will the Trump administration follow the rulings?
Margaret Flowers 37:20
Yeah, well, that’s no, yeah, that’s the concern. I mean, we’ve got Christy Nome out there, and I understand that she was, I don’t know if she’s effectively done it or trying to order munitions being delivered to California from Wyoming. Just feels like they’re just doing whatever they want. They’re not really being concerned. Or, I don’t even know if they have knowledge of what the what the actual laws are. So let’s talk about what President Trump did with his order on June 7, when he federalized the National Guard. People are concerned that this is a prelude to bigger actions such as invoking the insurrection act. Can you talk about that?
James M. Branum 38:00
Sure, one thing to remember about the National Guard is that, except when it has been activated federalized, it operates under state government authority. And so because of that, normally, the National Guard historically dealt with a lot of local issues, particularly disaster relief, things like that. And again, the use of National Guard for state level law enforcement is troubling and problematic. It has happened some, but it’s been less common. Now there are states that have been pushing the boundaries along them. Texas is one the involvement of the state of Texas in attempting to use their National Guard to do federal federal federal immigration issues, independent, completely independently, is really, really bizarre and uncharted territory. And we saw this under the Biden administration that unfortunately the state of Texas pushed, pushed, pushed, pushed, pushed, and got away with a lot. Now, of course, the guardrails are off. We now have a president who you know is it’s hands off. And so I was allowing Texas to do a lot of things that previously hadn’t done. But there are other states, like California where that the state governments were largely respectful of the boundaries, were not using State National Guard in these kinds of abusive ways, and again, in doing what’s effectively civilian legal law enforcement issues by federalizing them, they’re taking those troops out of state control. They’re putting them under federal control, and now using them in ways that just really unprecedented. And it’s, it’s a very, I’m sorry I keep saying it’s a bad situation, it’s a bad situation, but, but that’s what it is. It is a situation that, if allowed to continue, if there’s not a check on this, I do think that there is a serious risk of continued escalation, and eventually National Guard or even active duty troops being used in other, more oppressive, oppressive ways.
Margaret Flowers 40:00
Studies, right, right? Could you explain to the listeners what the insurrection act is and what that would mean if it was invoked? This is a very old law I understand,
James M. Branum 40:10
yeah, and I will give just a very nut. I’ll give a surface level of it, because I will be upfront say this is not this particular law. I haven’t spent a ton of time on myself. But what it does do is it lays out very clearly that fed that federal troops are not to be used for civilian law enforcement purposes, except in this extreme circumstance where there is actually some kind of rebellion, such as that war the United States had back in the 1860s you know, that’s the kind of situation we are talking about. We’re not talking about this, what we’re having happen now. So we don’t know if Trump invokes this, how the courts will rule. I think that there’s a lot of possibilities here. So far, Trump is attempting to avoid invoking this act, and I might my theory on it is, is that his his belief, and the people he he has working for him. Their belief is that, I think they are concerned the courts will not see it their way, so they’re trying to do everything possible to federalize troops in other ways without invoking this act. I do think that invoking this Act may be very much coming down the road sooner than later. We don’t know yet when it might happen, but if it does, a lot more of the guardrails come off, and there would be potentially we could see National Guard troops not just being used in little more isolated circumstances, but in a much more broad way. And at that point, then I think you would potentially see a lot of other things falling into place, such as further disruption of state governments, stopping state governments from protecting their own citizens in a variety of ways. And currently we have in our federal system, we have a have a system where that we, in theory, have both our the federal government and our state government that both regulates this in various ways, but also protects us theoretically in certain ways and by taking the state governments out of the equation by and then also doing this in a way that pushes it under the unitary power of An executive branch that’s acting with some kind of emergency powers, it really does open up a whole lot of potential for views,
Margaret Flowers 42:28
right, right? So let’s turn to the military folks who may be deployed now or in the future into communities. What rights do they have if they feel like they’re being ordered to do something that’s against the Constitution or against the law.
James M. Branum 42:46
So there’s some challenging issues related to this. I’m going to try to unpack this the best I can. I will mention, of course, as a lawyer, I can’t tell someone to break the law. I can discuss the ethical, moral and legal consequences of breaking the law, but I can’t tell someone to break the law as a lawyer, so I’m just want to say that if whoever’s listening in, I want to be really clear on that point. So what So some of the issues that are at stake here is that I would first begin by saying that the under military law, there is a protection that exists for there’s legal protection for an unlawful order that a service member cannot be punished for disobeying an unlawful order, and that is found. How we get there for that is, is a couple of provisions. One is the Uniform Code of Military Justice. Article 92 states that anyone who’s subject to the UCMJ who fails to obey a lawful general order or regulation can be punished, or also having knowledge of any other lawful order issued by member of the Armed Forces, which is duty to obey, fails to obey the order or derelict in the performance of his duty, should be punished, as the Court Martial may direct. So. In other words, if you have, if you’ve been given a lawful order, you must follow. It is what the military says. The question is, what’s left here? Not explained is, is that what is a lawful order? It’s not there in article 92 where it is found, is in a is in a document called the manual for courts martial. This is a large, 800 page plus document. It’s a PDF, by the way, just if anyone’s curious, jsc.defense.gov, if you go there, go to current, I believe, under current publications you can find a link to it. It’s good reading. But in that, in the manual for courts martial, it, of course, contains the the text of the UCMJ. It includes the the military rules of evidence and other things, but it also includes the rules for court martial. And in that, there’s also commentary which helps military judges and other people to interpret the UCMJ. And so the key for part there is it says one. Lawfulness, a general order or regulation is lawful unless it’s contrary to the Constitution, the laws of the United States, or lawful superior orders, or for some other reason, is beyond the authority of the official issuing it. See the discussion of lawfulness below. The problem is, when you get into that discussion of lawfulness, here’s the real problem is that it says inference of lawfulness, an order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. The inference does not apply to a patently illegal order, such as one that directs the commission of a crime. Then it says determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge. What that means, practically is unless it is a patently illegal order, such as your commander says, I want you to kill this civilian without cause right now, that would be patently illegal. There would be no question that you cannot do that. But what about an order that’s not quite of that nature, but is clearly illegal? Unfortunately, the only person who can decide decisively say that the order is illegal is a military judge. And the problem is military judges, by the unique nature of the UC of how the military system of justice works, military judges. They they are, they are in power, you might say, when their court is convened, into existence. So the court is not in existence when it’s I don’t have explained this, except no way to get an advisory
Margaret Flowers 46:33
opinion right. So it’s an as needed basis, kind of Yes.
James M. Branum 46:38
And so what it means practically, is that that a service member who’s facing this question, there’s no one to go to for an advisory opinion. And in in state governments, if a state official in my state says, Hey, I don’t know if this law or this regulation is is lawful or not, they can ask the attorney general for a formal opinion, and they can rely upon that that order until a judge sheets down the Attorney General’s opinion. There’s nothing that functions like that in the military, which means service members giving being given orders to say, deploy to Los Angeles, have to determine for themselves whether something is constitutional or not, whether it’s lawful or not.
James M. Branum 47:14
And then if they act upon that, and they actually disobey the order, they’re taking the gamble of whether the military judge would see it their way or not, they’re also taking the gamble, though, they won’t be punished in some way outside of court. And here’s the problem most the time, when someone is punished for something in the military, it doesn’t go to court martial. It’s actually dealt with through administrative processes, through non judicial punishment, or through an administrative separation. So someone could, could say, has been in 18 years, about ready to retirement. If they in a situation like this, they could, they don’t have to be prosecuted. They could just be kicked out early, prior to retirement, losing the losing their retirement. And there’ll be, really, there’ll be very few ways to effectively address that, to stop it from happening. Because again, the only person who can determine if a lawful an order is lawful, is the military judge, and so because of that, one of the things I would recommend to service members facing these questions is, first of all, if at all possible, try to find a way to avoid the showdown. What I mean by that is having a conversation with the commander exercising what’s usually called a command open door policy, to make a meeting with Commander to say, look, Commander, I don’t want to put you in a bad spot. I don’t want to be disrespectful in any way. But I this, this, this deployment. I’ve heard we’re going to be sent on soon. I can’t do it. It violates my conscience. I have serious legal questions about it. Please, please, keep me off this deployment. And my belief is, in many cases, commanders are going to say, say yes to that, to that request, because commanders they don’t want someone on the deployment who doesn’t want to be there.
James M. Branum 48:52
So I would begin by saying that if at all possible, to try to avoid the showdown. But if that is not possible at that point, then a service member who’s facing those questions does have some some soul searching to do because of potentially, if they lose, they could be looking at jail time. They could be looking at other negative consequences. I will say the good news is there are people there that are ready to support them if it comes down to that. Of course, in the military, every service member is entitled to the public defenders. So defense Jag, one good thing about the military is you don’t have to prove you’re poor to get a public defender. You get one. Get one if you’re always entitled to one. But you can also hire civilian counsel, and that’s where my organization, Military Law Task Force, we try to help connect service members with legal accounts outside legal counsel. And there are cases, and I think a case like this are the ones that were outside legal counsel can be very helpful, because outside of legal counsel, we can be more aggressive in ways than defense jag may be willing to. We’re, for instance, if we have to talk to the press to better our client’s position, we can do so following the rules of course of the court and all of that and legal ethics. But. We can talk to the press. Defense Jag, are extremely reticent to ever do that. For instance, there’s other things that we can do.
James M. Branum 50:06
So I would strongly urge anyone who’s facing these kinds of orders, who’s actually place of considering disobeying orders, to talk to legal counsel, and especially reach out to civilian counsel, to find to make sure that you’ve done everything possible, to put yourself in the best position possible. Also, it’s imperative that if you have to disobey an order for the because it’s unconstitutional, because it’s unlawful, you need to do so in as respectful a way as possible, because you don’t want to open up a door for them to prosecute, to prosecute you. And maybe you’re acquitted for disobeying the for for disobeying a lawful order, because the order was unlawful, but they could still hit you for disrespect of either anyone your command, command chain, including the President, which means you can’t go into the territory of disrespect. It’s one thing to say I disagree with the President. It’s another thing to use abusive language when when discussing the president. You and I as civilians, we can do that, members the military can be punished for that. And so there are some, some really important cautions there.
James M. Branum 51:06
On the other hand, what I want service members to know is, is that if you’re facing these these choices, there are resources out there, there you can get help. I’d also mentioned along the way, and that there’s a few other organizations that can be very helpful. The GI rights hotline in particular, is an important organization. Their number, by the way, is 1-877-447-4487, the website is girightshotline.org They’re a free organization. They don’t charge for their services, but a group, a nationwide network of counselors who take the calls, who assist service members and exercising their rights. I’ll also mention for issues of conscience, in particular, for someone who, through this experience, may be questioning their views about war itself, about military service, who have broader questions beyond just this immediate situation, I would encourage them to contact either the center on conscience and war or Quaker House in Fayetteville, North Carolina. Those are two organizations that work specifically with conscientious objectors, that is, people who have had a change of heart since they’ve enlisted, who now see things differently and can no longer serve in the military for reasons of conscience. But those folks are really encouraged to get in touch with CCW or Quaker House. They can be very helpful.
Margaret Flowers 52:18
Those are great resources. Thank you so much for that. Have you seen any change this year in the number of people from the military reaching out to the mltf?
James M. Branum 52:28
Yes, we’ve the mltf has seen an uptick in calls. For sure. I know the GI rights hotline in particular, which is, by the way, the mltf, we were a part of the GI Rights Network, so it’s a broader network, but I know that network. I know that there is a story just came out yesterday in a newspaper in Raleigh, Durham, North Carolina, that was quoted some folks from the hotline that said that they were receiving between two and 300 calls a week. Now, sometimes they’re getting that many calls a day. It is a really a huge bump in the volume of calls. So yeah, there’s a lot of people concerned. I will say for myself, a lot of people calling me are in they are concerned they have not been given the orders yet to deploy. They are concerned about what they will do if it comes to that. So I’m meeting with a lot of people just advising them to what are their rights through this process, and also helping them to just navigate this situation and when possible, to again, avoid the showdown. And again, there’s a place for the showdown, and particularly for folks who can Can, can risk that, who can risk having their life put on hold, potentially for a good wall, for a for potential prosecution, for potentially even prison time. I do think there’s, there is great value in people who are willing to take those risks.
James M. Branum 53:48
It’s not for everybody and for members the military. I want to be clear, there’s lots of ways to push back against what you don’t believe in. One, of course, is to disobey an unlawful order. Other ways are to engage in free speech actions, to use your power to speak out. And contrary to popular opinion, members the military do not check, do not surrender their First Amendment rights when they enlist. There are some specific restrictions on them, but those restrictions are still tempered by the Constitution. There are some good resources out there on what some of these boundary lines are. The regulation that’s most important is Department of Defense Instruction, 1325.06, it lays out the boundary lines of what service members can and can’t do as it relates to free speech actions. And basically the the idea here is the First Amendment does protect service members right to speak, but there are some limitations that are that are based upon the military clause, specific provisions of the Constitution.
James M. Branum 54:48
So the things that service members can do… they can participate in protest. If they are off duty, off post, out of uniform, they are not and they are not they. They need to really, really critical to not be in uniform, including any piece of uniform. Don’t wear even part of the uniform at a protest, and they also can’t be at a place where violence is likely to occur. Now one problem is, what about the circumstance where the police are the ones to initiate violence? I would argue that that that’s one of the problems with this regulation. Constitutionally, I don’t think it’s right to stop a servicemen from participating in a protest, because the police are the ones to initiate violence. But nevertheless, my advice to a service member is, if there’s any chance of violence, then that’s that’s a protest that that potentially they should not participate in.
James M. Branum 55:36
Beyond that, service members, there are some restrictions on electoral politics type of stuff, but largely, they are able to participate in a lot of free speech actions. They are able to talk to the press. They do need to make it clear that they’re speaking on their own behalf, not in the military’s behalf. They can’t use disrespectful language about the Commander in Chief. They can’t encourage disloyalty by the troops. There’s also some limitations- members the military are forbidden by law from unionizing or collective bargaining, and in fact, that provision applies to civilians too. It is a federal crime to try to assist military service members to collectively bargain or to unionize in some way. So there are some boundary lines. But outside of those boundary lines, members of the military can speak out.
James M. Branum 56:23
Another big way members of military can speak out is by writing their members of Congress, the President, because those fall under the category of protected communications, and so that those are things that they cannot be punished for, for having those conversations. And so there’s lots of ways that people can speak out. I would also say, informally within the military, speaking to your comrades, speaking of the people you served with, about your concerns, that’s that, that’s legal, you can have those conversations again. There’s more specific questions. Encourage folks to check it, contact the MLTF or the GI rights hotline for more assistance. But overall, what I want folks to know who are in the military is you can use your voice. You do have the power, and frankly, you have a perspective and credibility that those of us on the outside don’t have. And so when you speak, people listen, and so it’s really important you do speak and that you’re supported in that speech, right?
Margaret Flowers 57:17
And it sounds like, from what you’re saying, that they won’t be alone. There are a lot of people out there that have concerns about what’s happening, and so sometimes it takes the courage of one person to speak up, and you find that there are a lot of other people that are feeling the same way that you are. So yeah, that’s great information to have any final words for the listeners before we go.
James M. Branum 57:39
I think one thing, word, I would say is, for those of you listening who are not in the military, I think it’s very easy sometimes for those of us not in the military to make assumptions that people in the military to assume that they believe X, they believe y. I would encourage you to not go into your conversations people in military with those those stereotypes. Instead engage them. Have thoughtful conversations, and also be ready to show support and kindness to them when they’re they’re they’re facing these, these moral challenges. The more that we can hear from veterans and service members about their experiences, the better. So I really one thing, I really hope and more and more we can hear from from their from military voices. And I think in doing so, we as a society you’re going to be a lot stronger. One of the things I think I’m I as terrible as this situation, is with these deployments to Los Angeles, What has also happened is we now have several 1000 people, members the military who have now have a whole different experience. We need to hear from them. We need to hear from them about what it was like to be walking the streets of an American city, fully armed, in battle gear. What was that like? What? What did that do to you? And what did what was that that the that interchange, that exchange, that encountering members the public, what was that that like we need to hear from folks who were asked to do this, because I think if we do that, we’re going to be asking a lot more tough questions about why in the world did Trump send these people and put them in this position, particularly also after the California National Guard, you look at the high percentage of Latinx people in the National Guard, the fact that the fascist administration sent Latinx people into these situations is just abominable, and so we need to hear from them, right?
Margaret Flowers 59:21
Yeah, very important advice. Well, James, I want to thank you so much for the critical work that you’re doing and for taking time to speak with me today.
James Branum 59:30
Oh, you’re very welcome. Thank you so much for having me. I really appreciate it.
Margaret Flowers 59:33
You’ve been listening to clearing the fog, speaking truth to expose the forces of greed. I’m Margaret Flowers. My guest today was James Branum. I’ll go out with a song by junkyard empire. It’s called we want the people together can overthrow the system. We got that love uplift our brothers and our sisters. The people organized can build the kind of future we want.
