Insurrection is no ordinary crime. It’s an offense not against another individual or even group of people but rather against the polity in its entirety. A putsch is a declaration of war aimed at the whole political system. As such, insurrection tends to mobilize in opposition the full arsenal of social sanctions, punishments that go well beyond the purview of the criminal justice system. Those involved in the failed putsch of January 6, where a mob instigated by President Trump stormed the Capitol, are currently being rounded up by law enforcement. But it’s telling that the law is not the only instrument of retribution being called upon.
Congressional Democrats are pushing forward with impeaching Donald Trump a second time, as well as discussing using section 3 of the 14th Amendment to the Constitution, which bars the seating of officials who “have engaged in insurrection or rebellion” against the Constitution or “given aid or comfort to the enemies thereof.” Congress could decide this rule applies to lawmakers like Ted Cruz and Josh Hawley. Beyond Congress, civil society is now mobilizing against the advocates of sedition. Donald Trump has lost access to a raft of social media outlets, including Twitter and Facebook. Hitting even closer to home, on Sunday night the Professional Golfers’ Association announced that it has canceled plans to hold its 2022 championship tournament at Trump National Golf Club in Bedminster, N.J. This move comes on the heel of declarations by four major corporations (Blue Cross Blue Shield Association, Marriott International, Citibank, Commerce Bancshares) that they are not going to donate to Republican lawmakers who refused to certify Joe Biden as president (a group made up 139 members of the House of Representatives and eight senators).
This use of creative punishments should extend to the military as well. Trump has tried mightily to bend the military to his will, including using it against domestic protesters during the Black Lives Matter uprising in the summer of 2020. One of the most heartening developments of the past year was the way the military as a collective entity resisted Trump’s efforts. That may, in fact, have been the crucial ingredient that kept Trump’s coup attempt from succeeding.
But while the military as a whole deserves praise, it’s unquestionably the case that individual members of the military and retired soldiers did participate in the failed insurrection. On Sunday, Colorado Representative Jason Crow spoke to Army Secretary Ryan McCarthy, who indicated the army was investigating 25 people who participated in the putsch, some of whom might be active military. According to a readout of the conversation provided by Crow’s office, “Crow raised grave concerns about reports that active duty and reserve military members were involved in the insurrection. He requested expedited investigations and court martials against those involved.” Crow further requested that troops assigned to Biden’s inauguration on January 20 undergo a CID [Criminal Investigation Command] review to weed out troops “sympathetic to domestic terrorists.”
News reports are fleshing out the cases the army is investigating. According to the AP, “Army commanders at Fort Bragg in North Carolina are investigating Capt. Emily Rainey’s involvement in the Wednesday rally. The 30-year-old psychological operations officer told the AP she led 100 members of Moore County Citizens for Freedom who traveled to Washington to ‘stand against election fraud’ and support Trump. She insisted she acted within Army regulations and that no one in her group entered the Capitol or broke the law.”
Aside from active-duty troops like Rainey, a sizable cohort of retired military participated in the attack on the Capitol, including Ashli Babbitt, an Air Force veteran who was shot by law enforcement during the storming of the building.
The AP also cited the case of “retired Air Force Lt. Col. Larry Rendall Brock Jr. of Texas,” who “was charged in federal court on Sunday after he was identified in photos showing him standing in the well of the Senate, wearing a military-style helmet and body armor while holding a pair of zip-tie handcuffs.”
Rainey, if she committed any crimes, would definitely fall under the purview of the Uniform Code of Military Justice. A case can be made that the same courts should also be used against veterans like Brock. Under the UCMJ, retired troops can be court-martialed, thus depriving them of benefits and pensions.
In December, retired US Army colonel Lawrence Wilkerson advocated such an approach for former general Michael Flynn, who had received a pardon from Donald Trump. Flynn called for Trump to use the military to force new elections in swing states “at gunpoint.”
Wilkerson noted that the military had the power to punish Flynn even after Trump’s pardon. “Were I the secretary of defense I’d call him back to duty which is in the prerogative of the secretary of defense, and I’d court-martial him,” Wilkerson said. “At a minimum, I’d cite him for incitement to insurrection.”
Wilkerson’s argument applies not just to Flynn, who is an advocate of insurrection, but also to those retired military personnel who stormed Congress.
There are, to be sure, legitimate civil libertarian concerns about using military courts. Lawyers have argued that the principle that retired military can be brought under the military code is an “anachronistic” holdover from a period when the military needed a ready supply of reserve soldiers. Further, military justice is much stricter and has fewer protections for defendants than civilian courts.
In most criminal cases involving former soldiers, civilian courts are preferable.
But former soldiers should be regarded in a special light if they engage in political violence. As soldiers, members of the armed wing of the state, they received special training. For them to use this training against civilian politicians strikes at the heart of democracy. It’s a betrayal of the fundamental principle that the military has to be subservient to the people. It’s a rejection of the soldier’s oath to the Constitution. There is good reason for that oath to be lifelong and not bound by the period of active service.
By having military tribunals handle former soldiers who attempt a coup, a deterrent is set up for the entire military. Further, the military will be forced in this way to deal with its own internal problems and to weed out potential insurgents. Cleaning up the military and making sure it has not been infected with seditionists will be a major task in the coming years. Forcing the military to deal with rogue soldiers, both current and retired, is a way of hastening this crucial cleanup operation.