Tops of the Year--No. 2

January 6 and Military Criminality:  A Dangerous Vulnerability

BLUF: Our active duty and veteran populations are uniquely susceptible to domestic and foreign attempts to subvert U.S. democracy, and current countermeasures are insufficient.

It ​is currently reported that 81 of the 700 criminally charged in connection with the January 6, 2021 Capitol Hill insurrection have former military service, with a handful still in the military at the time (the latter primarily in the Guard and Reserve). This constitutes approximately twelve percent of those charged, a troubling over-representation of the veterans in the general American population, which stands at almost seven percent.
 
The numbers are perhaps surprising, given that it’s logical to believe that those with prior military service – indoctrinated during military training to obey command (and ostensibly respect the rule of law) – would fall disproportionally amongst society’s rule followers, and hence be less represented in criminal activity. This isn’t the case:  currently, almost 6% of all federal prisoners are veterans, and veterans account for 7.9% of all state prisoners – thus basically tracking the proportion of veterans in society overall. Like non-veterans, veteran federal offenders’ most common felony is drug trafficking (however, veterans are federally convicted of child pornography and sexual abuse crimes at far higher rates, up to four times higher, than that of the non-veteran offender population).
 
While general veteran criminality thus tracks veteran representation in society overall, the federal sentencing guidelines, the U.S. Supreme Court and a growing number of states treat military service as a mitigating factor to be considered at sentencing. The support of potential leniency in punishment for crimes committed by those with military service is understandable; it is based on recognition of such veterans’ sacrifices in federal service; the well-documented higher rate of mental health challenges amongst veterans; the documented difficulties in transitioning back to civilian life, etc.
 
Despite the growing trend of special treatment for veterans in American criminal justice systems, what about Janaury 6? Should prior military service lessen the punishment of those involved in the January 6 insurrection, given its uniquely anti-democratic, seditious nature – one vastly different than the average crimes veterans are convicted of?  Or should it be somehow aggravating? Shouldn’t military service in fidelity to the Constitution have taught these veterans, more than any other American, that forcibly attempting to obstruct the certification of the presidential election was morally, ethically, and legally wrong, therefore exacerbating their criminality?  And what does the greater representation of former military members in the January 6th mob criminality say about the military and our nation?
 
Yes, prior military service should be considered in appropriate individual mitigation for those charged with January 6 criminality. The service-connected factors that led the federal sentencing guidelines to allow downward departure for military service (and led to the creation of various states’ veterans courts) exist regardless of crime committed. The disproportionately high rate of mental health and related substance abuse challenges amongst the veteran population are only the most obvious factors. They are not crime-specific, and don’t manifest simply in drug-related crimes. They may make individuals, particularly veterans used to belonging to a specific community with shared values and indoctrinated obedience, more vulnerable to group dynamics plus more vulnerable to targeted disinformation.

Second, and related – and perhaps more surprisingly, as well of greater significance well beyond January 6 – is the role of military culture (exacerbated by social media) in veterans’ participation on January 6. That is, it is not simply the higher rate of mental health issues generically in the veteran population that supports allowing military service to play a mitigating role in individual January 6 criminality. It is the fact of military culture itself, and its lasting impact on those who served in uniform.
 
While military service teaches (and requires) generic fidelity to the Constitution, our armed forces’ training, laws, customs, and operations emphasize to a far, far greater extent the notion of obedience to orders – of fidelity to command (in a very real sense, “rule of law” in the military means rule of the commander). It is part of the military’s very DNA that a superior’s orders constitute the law; ignoring or violating their command is criminal for service members (as long as the order is not clearly illegal, which is a high bar given that all orders carry a presumption of legality).
 
Buttressing the dynamic of fidelity to command is the unifying and highly motivating concept of patriotism, of pride in country – and the sense of belonging and working toward something greater than oneself. Feeling good about one’s calling, one’s place in life, and about one’s nation is a powerful current that seemingly motivates many service members to serve for years, and is one many veterans strive to recapture after they’ve left the ranks. It is also one that is tapped into by politicians of all stripes, though most flagrantly and dangerously by former President Donald Trump and some of his most vocal supporters.
 
The dividing line between patriotism and nationalism – even fascism – can be a murky and dangerous one, and January 6th events demonstrate it can be crossed even in this country. It can be crossed even by people who once swore to uphold and defend the Constitution, because their previous fidelity was exploited through social media disinformation, retired senior military officers like Mike Flynn, and most powerfully by a then-sitting President.
 
Critically, in the hours leading up to January 6’s insurrection, President Trump, the then-Commander in Chief, was directly telling these veterans to “fight like hell,” and calling the crowd “American patriots.” He also said, “We're supposed to protect our country, support our country, support our Constitution, and protect our constitution” – thus framing his call to violent action in the language designed to resonate with former service members and their followers; dog whistle commands issued by a commander to his troops in a language they were trained for years to understand and obey.
 
The veterans present on January 6 were no longer subject to orders, and of course they were and are individually responsible for their own actions, and should be held appropriately accountable. (As was Jacob Chansley, the infamous Q’Anon shaman and Navy veteran who was recently sentenced to 41 months by a federal judge who himself is a decorated Vietnam veteran; Chansley faced 20 years imprisonment, so perhaps his honorable service did play a small mitigating role, the sentencing transcript is not yet available). But no one should discount the ingrained nature of obedience to a command figure in current and former military members, nor should military service somehow be considered an aggravating factor in January 6 criminality (as natural an impulse as that may initially be for some) – arguably because an essential part of military service makes former members more vulnerable to masterful exploitation of the type that helped produce January 6.
 
And Trump’s incitement did not occur in a vacuum:  the nation is now learning more about the roll disinformation and propaganda played in the time leading up to the January 6 attack on Capitol Hill. As briefly alluded to above, current research is also revealing the dangerous vulnerability of the veteran community to disinformation. Indeed, after the insurrection one expert concluded that “[v]eterans’ patriotism is being weaponized by disinformation in a deliberate effort … to turn our democracy on itself.”
 
This weaponization is not limited to veterans, though their commission of extremist-motivated crimes has jumped significantly in the last ten years. As several former general officers noted recently, the military itself is not immune to such manipulation, nor to the nation’s deep political divide. They warn of a future breakdown in command as rogue units organize “to support the rightful commander in chief” after the presidential election in 2024, and call for enhanced civic lessons. And the current Secretary of Defense seems to share similar concerns, having implemented a stand-down day earlier this year to  train on countering small growing extremism in the ranks. He also recently released new military-wide guidance on what constitutes participation in extremist groups, though two of his top four-star commanders (who command hundreds of thousands of troops) publicly claimed there is no problem, undermining confidence that the uniformed military leadership is appropriately seized of the issue.
                                                                                                                            
So as Fox News continues to blare in military offices around the nation and the globe, as it has for years, and service members and veterans are exposed to ever louder drumbeats of misinformation over social media, one wonders whether individual prison sentences of folks like Mr. Chambley, as appropriate as they may be, will help counteract such messages.
 

Rachel VanLandingham, Prof. of Law, Southwestern Law School.
​