Across the country people remain sickened and angry by last week’s images of an American mob storming the Capitol. It was shocking to witness members of Congress, and the vice president, flee in fear as windows shattered, men in makeshift tactical gear and zip ties roamed the halls, and the Confederate flag proudly waved in the symbolic heart of our democracy.
As news reports revealed that military veterans, retirees and even active-duty personnel participated in last week’s insurrection on Capitol Hill, that anger and shock boiled over in honorable veterans such as Senator Tammy Duckworth (D-Ill.) and Rep. Ruben Gallego (D-Ariz.). Both elected officials have made impassioned pleas that the secretary of Defense essentially throw the book at these folks, and do everything within the Department of Defense’s power to court-martial anyone whom military jurisdiction reaches, including retirees.
Angry calls for accountability are more than understandable for all involved in last week’s affront against our nation. For those like Duckworth who have served our nation honorably in uniform, their greater outrage aimed specifically at those veterans and active-duty members who participated in last week’s criminal insurrection seems even more justified, on both personal and professional grounds.
First, witnessing folks who swore the same oath to protect and defend the Constitution literally fighting against the Constitution’s own processes feels like a personal betrayal to those of us who have served. Our friends and colleagues died in places like Iraq and Afghanistan, yet here are other colleagues who know better, who vowed to fight against both foreign and domestic enemies, seemingly becoming the latter.
Professionally, Duckworth and Gallego and others on Capitol Hill are justifiably concerned about extremism in the current ranks — whether participation in last week’s insurrection by those affiliated with the military represents a very tiny minority of malcontents, or a more disturbing trend that has national security implications. Such concern should result in conducting hearings, and in statutorily requiring that the military investigate and report all extremist incidents.
Furthermore, in its constitutional Article I “make rules” for the regulation of the military authority, Congress has an obligation to ensure military criminal and disciplinary laws and processes are not only established but functioning smoothly to ensure those in the military who are willing to commit criminal acts, such as insurrection, are punished and eliminated from the ranks. However, while such authority naturally extends to oversight of the military justice system, it most definitely does not extend to actual execution of the military’s criminal and disciplinary processes in individual cases, such as demands for military prosecution. That’s the execution of the law, and constitutionally not in Congress’s lane — such demands cross a legal line.
In fact, both Duckworth and Gallego came seemingly close this week to violating the law themselves in an attempt to hold last week’s criminals accountable. The military criminal code, as well as the Constitution’s due process guarantee, as reiterated late last year by the Court of Appeals for the Armed Forces, bars officials, including members of Congress, from unlawfully influencing courts-martial. Such influence can occur by calling for punishment in specific cases, as the military’s high appellate court found Sen. John McCain did in the Sergeant Bowe Bergdahl case. Members of Congress need to remember that future cases can be jeopardized by such angry, albeit understandable, cries for justice.
The bottom line is that anger and criminal prosecutions, be they military courts-martial or federal prosecutions by the Department of Justice, don’t mix. Prosecutorial decisions need to be made impartially based facts and the law, not emotions. On that front, while the U.S. military needs to ensure its members conform to the law and don’t think it’s OK to storm the U.S. Capitol to thwart the execution of the law, there’s a strong argument that even those few persons subject to military jurisdiction involved in last week’s mob action be tried in federal criminal court, not by military court-martial, for any crimes against our democracy. The military has the ability to discharge those convicted in civilian courts; and even for military retirees, their pensions can be stripped if convicted of certain federal crimes in the civilian courts, such as seditious conspiracy or insurrection.
Currently, we need civilian institutions shown to be the robust pillars of democracy that they are, with federal criminal prosecutions used to ensure accountability for last week’s criminal actions. Resulting convictions will send a strong deterrent message to everyone in America, including those in uniform, that attacking our democracy will not be tolerated.
Rachel E. VanLandingham (@rachelv12), a professor of law at Southwestern Law School, Los Angeles, is a retired Air Force lieutenant colonel and former military attorney and co-author of Military Justice: Cases and Materials (Carolina Academic Press 3d ed. 2020).