"Among the many calls for accountability for the January 6 putsch at the U.S. Capitol, attention has focused on the involvement of military personnel. These calls, which are entirely understandable given the role of the armed forces in protecting the country, raise a surprising number of legal issues. We will try to unpack a few of them.
Early reports suggest that active, reserve, retired, and former military personnel may have participated in the putsch. It is critical not to make any assumptions until a better grip can be had on the facts of each individual’s case. It is also critical not to treat these distinct categories as if they are legally fungible; they are anything but. And as we explain below, the military justice system could be available for some of these groups, but not others.
However, we argue that even in cases where courts-martial could be used, civilian courts should try those responsible for organizing and participating in the putsch – our civilian institutions of government are open and up to the task, and should be used as a first resort. We also offer avenues of accountability within the military beyond criminal trials."
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