Written By Spring 2021 M-VETS Student Advisor.
During his confirmation hearing Secretary Lloyd J. Austin III promised to “fight hard to stamp out sexual assault, to rid our ranks of racists and extremists, and to create a climate where everyone fit and willing has the opportunity to serve this country with dignity.”[1] Making good on that promise, one of the first orders given after Sec. Austin’s confirmation was a 60-day stand down for military leaders to conduct training and discussions that focused on rooting out extremism from the ranks of the military.[2] Secretary Austin did not stop with the 60-day stand down order, in April he directed “DOD officials to review and update the definition of extremism contained in DOO Instruction 1325.06.”[3] However, the Secretary’s reach can only go so far and where his reach stops militia groups start – with veterans.
Militia groups have come under the scrutiny of national media and government attention in the aftermath of the attempted insurrection to stop the certification of the electoral college on January 6, 2021.[4] One of the most prolific of these militias is the “Oath Keepers.”[5] While many militia groups are loose collections of individuals with little structure, the Oath Keepers have over 35,000 members, bylaws, and dues.[6] What’s more, the Oath Keepers have made “recruiting veterans and law enforcement officers central to its mission.”[7]
In the aftermath of the siege on the Capitol over 400 individuals have been charged with crimes relating to their actions on that day.[8] At least 43 of those individuals had military experience and over one-third of those with military experience were associated with a militia.[9] This is not significantly higher representation than veterans in the general population, but it is still a striking facet of the events.[10] One outlier in the data from that day is that Marines are overrepresented, 48% of the veterans arrested were Marines as opposed to just 13% of all veterans, and the Navy was underrepresented, with about 7% of arrestees being Navy veterans against 26% of the veteran population having served in the Navy.[11]
There are many reasons militias may want veterans to join their ranks. Veterans have operational training, such as weapons expertise.[12] Veterans bring with them a culture that can impact organizations.[13] They can also be conduits for further recruitment of other veterans.[14] But, perhaps most importantly, veterans can offer a fledging organization political legitimacy.[15] There is mounting evidence that many of those involved in the siege were emboldened by the presence of veterans in their ranks because of “the ‘force-multiplying’ effects of individuals with military experience both planning for and participating.”[16]
With the threat of militias targeting veterans identified, what is there to do about it? Many papers and academics call for better, more targeted training.[17] This will undoubtedly effect the numbers on the edges, however, it fails to meet the threat and danger that exists with the growing notoriety of these militia groups. In many efforts to reign in this type of activity the roadblock is the First Amendment protected freedom of association. However, there may be a creative way to protect individuals rights and allow for restrictions on veterans joining these types of groups.
Section 1045 of the National Defense Authorization Act for Fiscal Year 2018 provides an outline of restrictions on associations for those who exit military service.[18] This update changed the lobbying restrictions for retiring military and civilian Department of Defense members. The restrictions on lobbying include restrictions on behind-the-scenes research, advising of others, or strategizing with others, intended at the time engaged in to support any direct lobbying contact, even if by another.[19] The government can impose these restrictions on retiring individuals for their post-service lives. Surely, there is a way to work this framework in regards to militias.
[1] Eleanor Watson, Defense Secretary nominee vows to root out enemies who “lie within our own ranks”, CBS News (Jan. 19, 2021), https://www.cbsnews.com/news/lloyd-austin-defense-secretary-confirmation-watch-live-stream-today-01-19-2021/.
[2] Jim Garamone, Austin Orders Military Stand Down to Address Challenge of Extremism in the Ranks, DOD News (Feb. 3, 2021), https://www.defense.gov/Explore/News/Article/Article/2492530/austin-orders-military-stand-down-to-address-challenge-of-extremism-in-the-ranks/.
[3] Jim Garamone, Austin Orders Immediate Changes to Combat Extremism in Military, DOD News (Apr. 9, 2021), https://www.defense.gov/Explore/News/Article/Article/2567179/austin-orders-immediate-changes-to-combat-extremism-in-military/.
[4] Alanna Durkin Richer, Oath Keeper, an Army veteran, charged in Capitol riot renounces militia group, The New York Times (February 28, 2021), https://www.militarytimes.com/news/your-military/2021/02/28/oath-keeper-an-army-veteran-charged-in-capitol-riot-renounces-militia-group/.
[5] Charlie Savage, ‘This Kettle Is Set to Boil’: New Evidence Points to Riot Conspiracy, The New York Times (Feb. 11, 2021), https://www.nytimes.com/2021/01/19/us/politics/oath-keepers-capitol-riot.html
[6] Id.
[7] Jennifer Steinhauer, Veterans Fortify the Ranks of Militias Aligned With Trump’s Views, The New York Times, (Jan. 20, 2021), https://www.nytimes.com/2020/09/11/us/politics/veterans-trump-protests-militias.html.
[8] Program on Extremism at The George Washington University, Capitol Hill Siege, https://extremism.gwu.edu/Capitol-Hill-Cases.
[9] Daniel Milton and Andrew Mines, “This is War”, Program on Extremism, https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/This_is_War.pdf.
[10] Id.
[11] Id. at 20.
[12] Id. at 32.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 40.
[18] 115 P.L. 91, 131 Stat. 1283, 2017 Enacted H.R. 2810, 115 Enacted H.R. 2810.
[19] Wiley January 2018 Newsletter, Strict New DOD Revolving Door Prohibitions Effective Now, https://www.wiley.law/newsletter-January2018-ELN-StrictNewDODRevolvingDoorProhibitionsEffectiveNow.