BY CHARLIE DUNLAP, J.D.
Secretary of Defense (SecDef) Lloyd Austin is understandably concerned about, as he characterized them, “actions associated with extremist or dissident ideologies” within the armed forces. Consequently, he’s ordered ”commanding officers and supervisors at all levels…to conduct a one-day ‘stand-down’” to have, as Pentagon press Secretary John Kirby put it, “discussions with the men and women of the force.”
Certainly, it’s important to identify and examine any dissident or extremist ideologies or actions that could adversely affect the military’s effectiveness. However, before doing so the Pentagon has some serious work to do. Otherwise this well-meaning effort by the Department of Defense (DoD) will not be as effective as it should be, or, even worse, could be counter-productive.
Indeed, Kirby appears to recognize that DoD is not yet ready to have what will likely be difficult “discussions” with DoD’s 2.3 million active and reserve troops. At a January Feb 3rd press conference, he conceded:
We owe these leaders some — some training materials, some deeper, more-specific guidance about how to conduct, or what the expectations are about, not how to conduct but what the expectations are for the stand-down, and — and some thoughts about how feedback can be provided.
Nevertheless, it does not appear too much effort was put into helping leaders prepare for discussions with the troops before the SecDef issued his order just two days later. This is a real concern because these conversations will logically involve topics that are not only emotional and controversial, but also implicate intricate and uncharted issues of policy and law. Among the latter could be the application of the First Amendment, and how it might apply differently depending on specific statuses or circumstances (e.g., on/off duty, active/reserve, official/personal social media, etc.).
However, the SecDef’s order mandating conversations was thin on specifics as to how to deal with these complicated issues. Here’s essentially the only guidance it contains:
Department of Defense Instruction (DoDI) 1325.06, “Handling Dissident and Protest Activities Among Members of the Armed Forces” provides the core tenets to support such discussions. Leaders have the discretion to tailor discussions with their personnel as appropriate, but such discussions should include the importance of our oath of office; a description of impermissible behaviors; and procedures for reporting suspected, or actual, extremist behaviors in accordance with the DoDI. You should use this opportunity to listen as well to the concerns, experiences, and possible solutions that the men and women of the workforce may proffer in these stand-down sessions.
All that sounds good. Reminders of the oath of office, responsibilities, unacceptable actions and reporting procedures are useful tools, but if the military wants to move beyond the anecdotal and root out real problems, then more foundational work is needed.
The purpose of this post is to highlight some complexities the effort to root out extremism and dissidence in the ranks will likely encounter, and why I’m skeptical of the Pentagon’s readiness to proceed. A hastily put together and ill-thought effort could cause more harm than good. I’ll conclude by offering some ideas that might help make the project a success.
Scope of the problem?
It is fundamental in military planning to gather intelligence on the “enemy.” Senior RAND researcher Heather Williams sensibly argues that the Pentagon should start its effort to confront extremism “by figuring out how pervasive the problem is.”
Reliable data is hard to find—and what data is available looks questionable. For example, one frequently quoted statistic comes from a Military Times poll conducted last July. Just last week Times reporter Meghann Myers asserted “Military Times’ own polling has shown that, anecdotally, more than one-third of active-duty troops, and more than half of minority service members, have witnessed signs of white supremacy in their colleagues.”
I am not confident that poll provides the kind of accurate information DoD needs. As I’ve discussed previously about a different poll (“Are surveys of electoral preferences of active-duty military cause for concern?”), I question the Times’ general polling methodology for a variety of reasons. The Times itself may have recognized the potential flaws in the data, as Ms. Myers curiously used the term “anecdotally” when describing the new poll’s results.
Anecdotal polling data is not sufficient intelligence to proceed with plans addressing this problem. The truth is that no one really knows how serious (or not) extremism in the ranks may be.
The nature of the problem
Even if one chooses to accept the validity of the polling methodology, there are further problems with it because the question the Military Times chose for its survey obfuscates the exact nature of the issue.
Ms. Myers said the figures represented the percentage of service members who “witnessed signs of white supremacy.” But how could that be? The Times report shows a single question asked on this topic: it queried both “white supremacy” and “racism” generally. If the Times is accurately reporting their own poll, it wasn’t possible to differentiate between “white supremacy” and “racism”. 
(See the illustration on the left from the Military Times’ September 2020 article – I added the red arrow and underlining to highlight the important parts of the results for our discussion.)
(See the illustration on the left from the Military Times’ September 2020 article – I added the red arrow and underlining to highlight the important parts of the results for our discussion.)As you can see, the question Military Times actually asked was whether an individual had “personally witnessed white nationalism or racism within the ranks of the military.” 31.3% of the polled group responded “yes” (and 57.2% for minorities also answered in the affirmative). But you can’t tell if the poll respondents were addressing “white nationalism,” or “racism,” or possibly both. Are “white supremacy” and “racism” the same? Evidently Military Times didn’t think so, since they included both in their question.
The inclusion of “racism” in the same question with “white supremacy” clouds the calibration of the response. After all, I’d bet that many if not most civilian Americans have “personally witnessed” racism in their community at some point. But have they witnessed white supremacy? And aren’t there varieties of racism that don’t necessarily take the form of white supremacy, like racism against Arabs or Asians by both whites and people of color alike?
Polls show that in the US generally, “the vast majority (71%) of Black Americans say they’ve experienced some form of racial discrimination or mistreatment during their lifetimes.” Obviously, that is a substantially higher percentage than the 57.2% of minority servicemembers who told the Times they had “witnessed” racism in the military (and—as an aside—shouldn’t we also be asking what percentage of minority service members actually “experienced” it, too?).
Even more specifically, Business Insider reported last February that in the civilian workplaces, “42% of US employees have experienced or seen racism.” Here is another instance where pollsters are combining racism both “experienced” and “seen.”
But by those numbers, is it not arguable that the Military Times’ figures – which purport not just to capture workplace racism, but racism at any time – show the armed forces doing markedly better than the civilian ‘world’? Or does it suggest the Military Times’ figures are, in fact, falling short of capturing the true problem? In my mind, that’s an important distinction by which to frame discussions about extremism with the troops.
Of course, in no way does that suggest the military cannot (or should not) do better. It just suggests that thoughtful discussion of the challenge of racism in the military should involve a fuller context. Getting accurate data—especially as to the oft-made charge of “white nationalism” in the ranks—is fundamental to any construction of a serious program to address the evils of both racism generally and white nationalism.
That raises a further question: what, exactly, do the Military Times pollsters mean by “racism”? Even experts concede that it can mean different things to different people (see e.g., here, here, and here). Settling on a definition is an essential perquisite to any discussion with the troops.
Unfortunately, the Pentagon has not yet gathered the necessary data or information any vital military operation would require, so the leaders attempting to execute the SecDef’s order will be, in essence, ‘flying blind’ as to the scope and nature of the problem they are being tasked to address. That kind of information gap is not, in my opinion, a formula for success.
Do we have sufficient clarity about the definition of “extremism”?
Even more problematic to conducting a serious discussion of “extremism” is the absence of a clear understanding of what the term means. The issue? Ms. Myers correctly observed in her article DoDI 1325.06 (which was last updated in 2012) “prohibits extremist activities, though it doesn’t clearly define extremism itself.” I would suggest before leaders engage in discussions with the troops, the DoD needs to understand how those leaders interpret “extremism.”
Pentagon press secretary Kirby indicated that for his part, the SecDef sees extremists as those who hold the “sorts of beliefs that lead to the kind of conduct that could be so detrimental to good order and discipline, and in fact criminal.” Activity that is actually criminal, even under expansive interpretations of military law, is likely to be a relatively small set of behaviors that may nevertheless impact military readiness.
What are the prohibitions? Here’s what the relevant part of the DoDI says:
Interpreting this instruction with respect to the many scenarios that could arise in discussions across the military requires, in my view, significant leader training, which it seems has not yet taken place.
Interpreting this instruction with respect to the many scenarios that could arise in discussions across the military requires, in my view, significant leader training, which it seems has not yet taken place.How a good idea could go wrong: two examples of controversial issues that might present complications for the execution of the SecDef’s order
Even the best efforts to provide overarching guidance present thorny, complex issues, especially when a strategy expects commanders to take action against servicemembers who comply with all policies while on-duty, but who, while off duty, express views that are contentious and may arguably violate military directives readily applicable to on-duty behavior.
The following are two examples of how the SecDef’s effort could go awry when dealing with controversial topics unless the “stand down” is carefully planned and adroitly executed. As I indicated earlier, the effort must be marked with sophisticated understanding of the law and keen insight into practical issues.
Gender
In its 2018 instruction, (Air Force Instruction 51-508, Political Activities, Free Speech And Freedom of Assembly of Air Force Personnel), the Air Force implements the aforementioned DoDI 1325.06 instruction. The Air Force gamely attempts to provide more definitional fidelity as to what constitutes a “cause” that is proscribed because it falls within the category of “supremacist”. AFI 51-508 states that:
A supremacist doctrine, ideology, or cause is characterized by, but is not limited to, having a fundamental tenet of its nature that particular members of one race, color, gender, national origin, or ethnic group are genetically superior to others. (Emphasis added)
On the surface, this appears to be quite reasonable—but the ‘devil’, as is so often said, is in the details. Let’s take look how trying to apply that provision could get problematic. Last October The Economist reported this with respect to gender:
Sports science confirms what common experience suggests: most males are bigger, stronger and faster than most females. They have bigger muscles, bigger hearts and bigger lungs, as well as a greater capacity to transport and use oxygen, stronger bones and tougher ligaments. The advantage that all this grants varies from sport to sport, from around 10% in running to more than 30% in weightlifting (see chart). But even at the lower end of the scale, it is enough of a difference that some talented male teenagers—despite having yet to finish puberty—can outperform the best female athletes in the world.
The Pentagon should concern itself about how leaders across the military might answer a not-impossible-to-imagine question like this one: Is someone an “extremist” because, while off-duty, they embrace a “cause” which holds that because of the genetic traits noted above, males are “genetically superior” to females in certain physical respects?
If you want a scenario as to how such a question might arise, consider the just-established Women’s Sports Policy Working Group here at Duke Law. In explaining the new organization’s purpose, the press release explained that:
“[The co-founder] emphasized that the group is committed to fostering the participation of trans girls and women. But she noted that commitments to inclusion and equality always depend on the goals of the project or category, and on whether individuals seeking inclusion meet the criteria for satisfying those goals. Given the goals of girl’s and women’s sport, the eligibility criteria for the category are by necessity based in sex, or at least the sex-linked traits that drive the performance gap between male and female athletes, she said at the press conference.” (Emphasis added).
It would be unfair and wrong to characterize the project as anything but one by athletic feminists trying to protect the integrity and competitiveness of female sport while dealing equitably with the reality that science shows a “performance gap between male and female athletes.” At the same time, they vigorously support athletic opportunities for transgender people, and are determined to find them.
In fact, an explicit purpose of the group is to find solutions that avoid the “extremist” positions. As related in the press conference announcing the Working Group:
“One side insists that transgender girls are ‘boys’ and seeks to ban them without regard to their physical sex-linked traits,” the group said. “The other side insists that transgender girls are ‘girls, period’ and seeks their full and unconditional inclusion, again without regard to their physical sex-linked traits. Both extremes ignore the reasons we have sex-segregated sports, and both are unnecessarily discriminatory.” (Emphasis added.)
Yet under the military’s criteria, could it still be a problem for servicemembers to endorse this type of effort? Can we be certain how the thousands of military leaders trying to execute that SecDef’s order might interpret those rules and how they intersect with this topic? Specifically, can we say definitively that none of leaders holding mandated discussions could arrive at differing and perhaps unfair conclusions about efforts like those of the Working Group?
Why? A “tenet” of it seems to be a recognition of the science that one “gender” is “genetically superior” to another in certain athletic situations. Indeed, notwithstanding what the Economist says “sports science” shows, this issue remains very controversial in the civilian sector (see e.g., here).
What further complicates the matter is the position the Commander-in-Chief has taken. As noted at the Working Group press conference:
[The] debate has reached the highest levels of government: numerous states have passed or are considering laws addressing the issue, three federal bills seek a ban, and an executive order signed by President Joe Biden affirms that last year’s Supreme Court decision in Bostock v. Clayton County prohibiting discrimination on the basis of gender identity and sexual orientation applies to Title IX and, by extension, to school sports teams. (Emphasis added).
Think about it: given how the military’s criteria is written, can a servicemember, even one who may be a strong supporter of transgender rights, nevertheless vigorously advocate—off duty—the Working Group’s approach without fear of being cast with the career-destroying label of “supremacist” under existing directives?
Religion
Another problematic situation is the Command-in-Chief’s views on key aspects of Catholic doctrine. For example, President Biden has declared that abortion is a “constitutional right.,” That’s important because AFI 51-508 threatens “disciplinary action” for any military member who “engage[s] in efforts to deprive individuals of their civil rights.”
Of course, Catholic doctrine is very clear that abortion is not any sort of moral “right.” To the contrary, the United States Conference of Catholic Bishops (USCCB) explains:
The Catechism of the Catholic Church states: “Since the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law” (No. 2271).
This view is not exclusive to the Catholic Church and is, in fact, shared by other major faith traditions (see here). Though a significant majority of Americans support the legality of abortion in at least some circumstances, the Gallup Poll reported last September that “Americans are also closely divided when viewing abortion from a moral perspective: 44% consider it morally acceptable and 47% call it morally wrong.” (Emphasis added).
Thus, it is quite possible that a servicemember could recognize that current law establishes what the President considers to be a “constitutional right,” yet still strongly advocate that any such “right” is seriously wrong morally, or that the most important “right” is that of the unborn to live. Consequently, if a servicemember takes action in a private capacity to change the law to “deprive individuals” of what is today considered a “civil right” but also one which religious leaders like Pope Francis call murder, does that place them in violation of military directives?
Pro-life activism is not an abstraction for many Catholics. Just a few weeks ago Catholic bishops reflected “in particular on the more than 60 million unborn lives lost since the Roe v. Wade decision,” and stressed that “every day, we continue to advocate with relentless determination for healthcare that affirms every life, born and unborn.”
This is not the only civil “right” Catholics might view as problematic in light of the positions expressed by the Commander-in-Chief. On Inauguration Day, Archbishop José Gomez, the President of the UCCB, stated:
“I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender. Of deep concern is the liberty of the Church and the freedom of believers to live according to their consciences.” (Emphasis added.)
This isn’t to argue necessarily that President Biden is right or wrong on his positions; I only bring it up to point out there are a number of issues that are highly controversial. Could not the competing—or, some might say, implacably contrasting—views be construed as “extremist” by one side or another (as has been the case in the past)?
Moreover, wouldn’t it make sense to ensure leaders are also conversant with DoDI 1300.17, Religious Liberty in the Military Services. Among other things, it says:
Components will accommodate individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs) which do not have an adverse impact on military readiness, unit cohesion, good order and discipline, or health and safety. A Service member’s expression of such beliefs may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.
It isn’t hard to imagine that DoDI 1300.17 could operate as a limitation on DoDI 1325.06 and AFI 51-508 in certain circumstances. Are leaders across the services ready to parse out those situations?
For example, can devout military members vigorously bear witness for their faith–off duty and on their personal social media-even if their views are in direct contradiction to what the Commander-in-Chief insists are civil rights of others? Or is the assumption that religious beliefs will not arise in discussions with literally millions of people?
Clearly, the Pentagon ought to equip its leaders on these issues prior to embarking on these sensitive discussions.
Obligations of on-duty behavior and the difficulties of regulating off-duty behavior.
All of this said, none of these issues suggest the President and his administration cannot impose lawful policies on the armed forces, even if some (or many) in uniform object. In the landmark 1974 case of Parker v. Levy, the Court cited with approval the 1890 case of In Re: Grimly for the proposition that:
“An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.”
No matter how objectionable a military member may consider a given policy, when translated into an order that is otherwise legal it must be obeyed. In fact, even if an individual adduces a lawful order to be immoral, obedience is still required. The Manual for Courts-Martial makes clear that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”
Thus, in the performance of their duties, servicemembers are obliged to carry out the lawful policies of the Commander-in-Chief whether they like them or not. Additionally, with the exception of chaplains on matters of faith, it is rarely appropriate for a military member on duty or acting in an official capacity to express views contrary to the current administration’s policies.
The problem, however, is that the quest to eliminate “extremism” quite clearly extends to off-duty activity, and to views expressed in a private capacity.
It is true that while the First Amendment applies to members of the armed forces, that application can be limited in certain circumstances. As the Supreme Court put it, the “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”
Exactly how the First Amendment might apply off-duty and to remarks made in a officer’s private capacity is beyond the scope of this post. Suffice to say, it is complicated and nuanced (see e.g., here and here). It is especially daunting with respect to private, unofficial social media activities. As a 2013 Air Force legal opinion about the interplay of the First Amendment and social media said:
The bottom line is that the right to free speech is an important one, and restrictions of servicemembers’ speech rights should not be undertaken without carefully balancing those rights against identifiable and important military interests.
The question the Pentagon ought to think about is this: in their discussion with the armed forces, are military leaders prepared to undertake a careful balancing of rights in response to questions about social media accounts that will surely arise? I’m skeptical.
Concluding observations
To be clear, the SecDef is absolutely right to want to root out extremism—especially racism and white nationalism-—from the ranks. I do think that “discussions with the men and women of the force” about “extremism” can be an effective method to achieve that end, but only if led by civilian and military leaders who are truly prepared to explain an extremely difficult and nuanced topic.
Determining whether or not to bar military members from activities ordinarily consistent with the First Amendment for reasons based on the morale and discipline of the force, is a highly fact-dependent determination. Subtle differences will change the answer.
Additionally, there are rules that seem counter-intuitive. For example, DoD says that “mere membership” in extremist organizations or “possession of [extremist] literature normally is not prohibited.” That could generate logical questions from the troops about this oversight of obvious signs of extremist activity for which the DoD instruction does not provide a ready answer.
It is easy to see the potential pitfalls are many. Not only could mistakes by leaders exacerbate the problem, they could also generate complaints against them, and perhaps even allegations of unlawful efforts to deprive military members of their constitutional rights. Once one gets beyond broad generalities in the mandated discussions, leaders could be entering a minefield for which I believe few are equipped to navigate.
In my view, the Pentagon ought to be concerned about whether the thousands of military leaders across the armed forces tasked to engage in these discussions with the troops are ready to address the complex legal environment involved. Frankly, it is quite possible that issues could arise that would confound even an experienced lawyer. The Pentagon risks a myriad of interpretations across the force that could be at odds with intended policies. How could that be helpful?
Six suggestions
What then to do? I can appreciate the SecDef’s desire to ‘so something’ quickly, but as they say, if you want it bad, you’ll get it bad. Consequently, allow me to offer six suggestions that may be helpful in making the effort a success:
So, yes: have discussions with the troops. But first be reasonably sure they will be done the right way—with accurate data and clear policy guidance. I don’t think that is the case today.
So, yes: have discussions with the troops. But first be reasonably sure they will be done the right way—with accurate data and clear policy guidance. I don’t think that is the case today.
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