For Constitution Day, Dr. Joseph Smith and I engaged in a discussion with the News Editor for the Crimson White, Jordan LaPorta, which examined both Mr. Trump and Secretary Clinton as presidential candidates, looking at their different interpretations of the Constitution, and what that may suggest about how their respective terms may play out, from rules of war to drone strikes, and campaign finance to the expansion of Executive power.
In the spirit of Constitution Day, the day that celebrates the signing of the Constitution, I thought about the First Amendment in theory versus the First Amendment in practice - the differences between the words themselves and how those words are understood, both as a matter of the privatization of rights protected under the Bill of Rights and the practical consequences of the application of these protected freedoms.
A component of that examination included such controversial speech such as flag burning, the wearing of military medals and rank not earned, and in the news now, kneeling/sitting during the national anthem. Related to these manifestations of speech, it is commonplace for individuals or groups to fervently yell at, or even harass an individual or group that is exercising its First Amendment right, especially when the viewpoint that is being expressed is an unpopular one. However, the articulation of unpopular speech, while potentially earning the speaker the anger of a crowd or a black eye, would likely not result in a criminal conviction for that same speaker. However, on September 9, 2016, a female, African-American United States Navy Sailor elected to sit down for playing of the national anthem. The anthem is played as a morning ritual of the playing of the national anthem on military installations, and it is legally required for active-duty military personnel to either stand at attention or stand with their right hand over their heart, depending on whether the servicemember is in uniform or not. However, before addressing this act, it is important to examine its context.
During the unnamed Sailor's self-made video, she identifies Colin Kaepernick and interprets his actions during her protest. Kaepernick recently garnered attention for kneeling during the national anthem of a NFL preseason game, and he has continued this practice in every game since. This speech has been repeated by multiple athletes, both in the NFL and in other sports. While this practice has received some support from the NFL, and has seen Kaepernick's jerseys become the hottest selling item for the San Francisco 49ers, it is not without vocal dissent from some, but this form of protest, while debated, is not illegal.
However, free speech in the military has been - and continues to be - a delicate balance of individual rights and military necessity. While freedom of speech is a right protected by the Constitution - the same Constitution that military members swear to uphold and protect - there are content-based restrictions on speech for military members. Contemptuous speech towards the President or Congress is specifically criminalized, but that must be balanced with the freedom of members to write their Member of Congress and express frustration or displeasure. Certainly less contemptuous, but demonstratively, in 1981, an Air Force officer who was an Orthodox Jew and ordained rabbi, while testifying at a court-martial, was ordered to remove his yarmulke. Subsequently, he was ordered to remove his yarmulke while indoors, since wearing headgear while indoors was prohibited. The Supreme Court ruled that the rabbi's desire to wear his religious garb was superseded by the military regulation barring headgear. While Congress subsequently changed the law to explicitly permit religious headgear on military members, this case highlights the inherent tension between constitutional rights and military authority.
In the case of the unnamed Sailor and her protest, there is little challenge to the veracity to her claim, but the striking notion is the level of consequence that she has exposed herself to. While it is unlikely, she could be charged with multiple offenses, and if convicted, she could face several years of time in prison, in addition to the federal conviction itself. More likely, she faces either administrative separation - essentially, being fired - from the Navy, non-judicial punishment - an administrative tool that has less due process rights than other forums, but also has less severe consequences (typically, loss of rank and/or forfeiture of pay are the most common punishments if found guilty at this forum) - or informal counseling. While the decision to act or not to act is likely being discussed, and there are deep, cultural and institutional reasons for this separation between the civilian right to freedom of speech and the servicemember right of freedom of speech, the salient point is not whether she will be charged or not, but that the military's need for obedience and "good order and discipline" creates separation such that the very rights of Kaepernick that the Sailor defends are not available to her, expanding the civil-military gap (that is, the potential for divergence in views among civilian and military elites) at one of its widest points, the institution of law.
As evidenced in the case involving the rabbi and many other cases, the Supreme Court is very deferential to the military, going so far as to apply an extraordinarily favorable policy called the "military deference doctrine." Generally, this doctrine presupposes that the military has a good reason for instituting a particular rule or policy and the Court is loathe to interfere with that which it doesn't understand. Rather, the Court will defer to the logic and policy of the military in most every type of case, and especially so as it relates to law and legal policy. As a result, we see that as it relates to the military and its members, the First Amendment has a very different understanding for military members than it does for the general public, widening the civil-military divide and drawing an important line between the nature of the person protesting, as opposed to the act of their protest.
It is not surprising that the military is being discussed as an issue during this Presidential election. Many previous Presidential contests have, at minimum, had an issue related to foreign policy or use of the military, and every election since September 11, 2001 has had discussion concerning the proper role of the military and the use of the military in United States foreign policy .
This election has followed the path of its predecessors by having as one of the central issues in the campaign the role and use of the military, but this discussion has been fundamentally different than others. In recent weeks, there has been a Gold star family that advocated for their preferred candidate and a tweet that argues that the military needs military justice reform concerning sexual assaults. However, these issues, while important, treat the military as a tool; arguing that an experienced leader with a proper temperament is required and that the justice system in the military does not meet common expectation or understanding.
A far more difficult issue to contend with in this election cycle is the advocacy of influential, retired leadership of the military. From the former Secretary of Defense, to the former Commander of the International Security Assistance Force, to the retired General in charge of the Defense Intelligence Agency, military leadership has been vocal in this election cycle about the qualities that they believe that the next President of the United States should have, and who they believe has those qualities. GEN (Ret) John Allen, USMC, at the Democratic National Convention, and flanked by over thirty veterans, stated that Mr. Trump could cause a "civil military crisis, the like of which we've not seen in this country." In response, LTG (Ret) Michael Flynn, USA lashed out one day after the DNC, and on Fox News, blasted GEN (Ret) Allen for the endorsement. LTG (Ret) Flynn has subsequently stated that a number of Generals have been forced out under the current administration, and has publicly endorsed Mr. Trump.
Military personnel having an opinion on politics is hardly new. While the military tends to trend conservative, those opinions are generally constrained to the individual, and not placed in the public forum, due to both tradition and law. The Hatch Act of 1939 (officially, "An Act to Prevent Pernicious Political Activities"), which was last amended in 2012, sets forth permitted and impermissible activities for servicemembers to engage in. Some of the impermissible activities include using one's official authority or influence to interfere with an election, soliciting or receiving political contributions, or engaging in political activity while on duty, or in a government office, or wearing an official uniform. Conversely, the permitted political activities of servicemembers include registering to vote and voting, contributing money to political candidates and political campaigns, and attending political campaigns and rallies assuming that the servicemember is not in uniform or otherwise engaged in impermissible action during what is permitted conduct.
One of the fundamental questions involved with the field of civil-military relations is "Who controls the military?" This question has been examined from the perspectives of the President and Congress, harkening to the President being the commander-in-chief and the Congress authorizing appropriations, but the bearing in mind the cultural and legal restraint that the military practices, the question is not that different from asking "Who owns the tool?" A more difficult presentation of the question of "Who controls the military" is when the military positions itself in an attempt to choose its leader; that is, the tool is attempting to choose its wielder.
This immediately presents at least two concerns - first, that the legitimacy of the institution is damaged by the support, and second, that the leadership of the military will not follow the orders of the commander-in-chief that it opposed, or alternatively, it will blindly follow the commands of the commander-in-chief that it supported.
In a 2016 Gallup poll on the confidence in institutions, that asked respondents how much confidence they had in various institutions - a great deal, quite a lot, some, or very little, 73% of those polled responded that they had either a great deal of confidence or quite a lot of confidence in the military. This number exceeded that of the police - 56%, the Presidency - 36%, the Supreme Court - 36%, and Congress - 6% In fact, of all the institutions that were polled, to include small business, big business, organized religion, public schools, and the aforementioned police and branches of the federal government. Arguably, the overwhelming confidence in the military is due to its apolitical nature, that it professionally manages situations that it is placed into, but that it does not itself go into those situations. The change in tone from being an instrument of the Executive to voicing opinions about the qualities of its potential future leaders signals a change in attitude that may destabilize the public's confidence in the institution.
Beyond the public's confidence is the issue military's loyalty and obedience. With its leaders aligning with one candidate or the other, there is a risk that either the President will be ideologically co-opted by the military position, or that the military leaders will be unable - or unwilling - to disobey what may be an illegal order due to fealty or an order that aligns with their preexisting ideological position. Such a shift would fundamentally change the role of the military from an instrument with its own morality and judgment to an amoral executor of Presidential commands and is something to watch for as the election - and its after effects - grow nearer..
Dr. Allen Linken
Assistant Professor of Political Science.
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