Court-Martial Trial Practice Blog
Military.com reports new efforts within the Marine Corps to track extremism in the ranks.
Drew F. Lawrence, Marine Corps Extremist, Gang Activity Must Be Immediately Reported Up the Chain, Service Says. Military.com, 4 September 2024.
The Marine Corps is streamlining how its commands report protests, extremism and gang activity among Marines, according to an administrative message released late last month, issues that each of the military services have long struggled with.
Marine commands must verbally report instances of alleged extremist or gang activity directly to the Marine Corps headquarters’ operation center within 30 minutes of being informed of the incident, the new message said. That initial notification is then followed by a more detailed report in the following day or days, depending on the rank of the alleged offender.
The message intends to improve reporting requirements and address instances of the prohibited activities among Marines, the service confirmed to Military.com on Thursday. It was spurred by 2021 legislation that tasked the Pentagon with addressing “act[s] or threat[s] of violence” with ideological aims.
The message to Marines, GUIDANCE ON REPORTING EXTREMIST AND CRIMINAL GANG ACTIVITIES, can be read here.
The message does not define activities that might fall under the extremism category. Here are the applicable rules and regulations undergirding the policy.
REF/A/DOC/PUBLIC LAW 116-283 554//
REF/B/DOC/DEPUTY SECRETARY OF DEFENSE MEMORANDUM, JULY 2022//
REF/C//DOC/DODI 1325.06//
REF/D/DOC/SECNAVINST 1610.4//
REF/E/DOC/MCO 3504.2A//
REF/F/DOC/SECNAVINST 5800.12C//
REF/G//DOC/MCO 5354.1F//
Being identified as an “extremist” can have significant effects on a career in the Marine Corps, up to and including administrative separation or court-martial.
The obvious legal question if there’s a trial will be to what extent the regulations intrude on a servicemembers First Amendment rights while a member of the armed forces.
Here are several references that discuss the limitations on a servicemembers First Amendment rights. As I write, we must consider that there are restrictions and limitations on what the servicemember can do or say regarding the upcoming elections.
The First Amendment Speech Center, Univ. of Tennessee has this broad statement.
When the U.S. military is a party to cases centering on First Amendment rights to free speech, free press, and free exercise of religion, the Supreme Court generally defers to the government’s interest and discretion, permitting the military to restrict the rights of service personnel in ways it does not permit in civilian contexts.
The article goes on the say,
Chief Justice Earl Warren once suggested that military personnel do not give up their constitutional rights—“our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes” (Warren 1962:187)—but he did note that under the doctrine of military necessity, also known as the “Orloff Rule” from Orloff v. Willoughby (1953), the military can implement its regulations largely outside the purview of judicial review, because the Court’s attitude had historically been “hands off.”
He observed:“[I]t is indisputable that the tradition of our country, from the time of the revolution until now, has supported the military establishment’s broad power to deal with its own personnel. The most obvious reason is that Courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have” (Warren 1962:186–187).
The Court of Appeals for the Armed Forces is occasionally called upon to address the First Amendment in its appellate review of a conviction. Some examples are here.
For some history of the concept of political neutrality of the military, you can read Joshua Paladino, The First Amendment and Military Justice: Threats to Political Neutrality. 98 Notre Dame L. Rev. Reflection 114 (2023). Available at: https://scholarship.law.nd.edu/ndlr_online/vol98/iss2/3.