Fidell & VanLandingham: Military Personnel and the Putsch

1/13/2021

"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."

Full post here.

1 Comment

Joshua Kastenberg

1/14/2021 06:24:16 pm

I think that Professors Vanlandingham and Fidell are excellent scholars and true experts in the fields of military law and civil-military relations. This is a rare instance where I disagree them and only then, with one of the points raised in their article. The comment: “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,” is what I disagree with.
I concede that there are real concerns with recalling retirees or reservists to duty for the purpose of a court-martial, and those concerns need to be addressed by the modern Supreme Court that actually utilizes the originalist core belief of fears of a standing army in their jurisprudence.
But what of the active duty members, like the wayward captain from North Carolina.? Let us assume, for a minute, that it is possible to hold a court-martial without unlawful command influence from the chain of command or by a member of Congress. Sedition and mutiny are two related offenses. The former occurs when a service-member subject to the UCMJ undermines the efficacy of the government and the latter, when the service-member undermines military authority. (I am paraphrasing rather than giving an elements analysis). Both are military offenses, precisely because the military must remain apolitical and within the view of the framers’ that if it becomes political, it takes a step toward tyranny. If the military doesn’t subject active-duty personnel to a charge of sedition or a kindred charge that encompasses its nature, it is placing the crime in the same place and gravity as that of the civilian
I recognize that the conditions of the Weimar Republic and our time are different, and I also vehemently dislike loose comparisons and simple assessments on one of the most complicated questions of our age, the rise of Nazi Germany. However, one only need take a look at the influence of retired General Erich Ludendorff who was instrumental in Hitler’s rise but escaped prosecution after the failed Kapp Putsch of 1921 and was acquitted by design after a three civilian judge panel decided his role in the Beer Hall Putsch was nominal. In Germany at that time, a general never retired and their laws considered him on active duty. There is a consensus of historians such as Ian Kershaw and William Shirer that Ludendorff enabled Hitler’s rise as well as the demise of Weimar after Hindenburg’s death. What if the Reichswehr had court-martialed him? Maybe he would have been acquitted, but if not, certainly the luster of his military fame for being the victor at the Battle of Tannenberg would have been balanced by a conviction.
Ludendorff also influenced junior officers to undermine the Weimar Republic. Three lieutenants were prosecuted in Leipzig in the civil courts in 1931 rather than in a court-martial. They were charged with treason for passing out the Völkischer Beobachter which General Groener, the defense minister and head of the Reichwehr had banned. That paper was the publishing arm of the NSDAP (or early Nazi party). Hitler testified in their defense including on matters which we would consider to constitute the “good solder defense.” I have a question as to whether a court-martial would have permitted a former corporal with no connection to their service to testify in this manner simply because of his political status. Ludendorff submitted an affidavit. The court found them guilty but gave them weak sentences. Given that they violated the senior-most Reichswehr general’s orders would they have gotten off lightly? We don’t know, but two of them became colonels and died on the eastern front. More importantly, the Völkischer Beobachter and other Nazi ideologies became more and more common in the Reichswehr. And, the Reichswehr easily transitioned into the Wehrmacht after the night of the long knives. Perhaps this was inevitable, the Reichswehr wasn’t given the chance to exercise the authority it possessed under the law, and therefore we will never know if that would have been the better option.
Of course, there are many reasons and complexities to the rise of Nazism. But here, when you have the possibility of active duty personnel subject to the UCMJ align with the Proud Boys or become involved in sedition, I think that the military ought to be the first stop, provided of course, it can maintain the fairness of courts-martial. And failing this, the civilian courts should be employed.

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Fidell & VanLandingham: Military Personnel and the Putsch

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