Written by Elizabeth Moon –

Ritual Disclaimer: I’m not a lawyer, and no longer am on active duty in the military.  On the law–an amateur’s looking stuff up and reporting on it.  On the military–a veteran’s opinion.

There’s been a lot of chatter on social media about whether this or that retired or separated military personnel can be recalled to duty for a crime committed after separation, and thus court-martialed if the crime is one that calls for that.  (There are lesser “administrative” punishments that are not courts martial.)

1. No civilians who’ve never been military are subject to the UCMJ and thus cannot be court-martialed. R- told me about a case he heard about in the military law part of his R.O.T.C. classes: civilian wife shot her military husband on the base…in Germany.  German law enforcement refused to handle it.  Military law *couldn’t* by law try a civilian in a court martial.  He never heard the outcome, but probably the woman was sent to the States, to be tried in their “home of residence.”
2. All active duty military personnel are subject to the Uniform Code of Military Justice, the UCMJ, whether they commit a crime in uniform or not. Murder your spouse’s supposed lover when you’re on leave–you’re still on the hook with the UCMJ. The rules for reservists and retirees are different depending on which branch you’re in, because the laws establishing the reserves were different. This article explains some of the complications.
3. No “never served” civilians are subject to the UCMJ and cannot therefore be court-martialed.
4. The military has the option, with any crime committed in a civilian context, but falling under one or another headings of the UCMJ, to either proceed to court-martial or allow that crime to be handled by the civilian court system. That decision is made on a case-by-case basis usually, and the military judicial system is in contact with the civilian judicial system. The ruling may come from as far up as the Secretary of Defense, after consultation with the President, or as locally as a unit commander who chooses to take an offense to court martial or handle it as an administrative matter (within the limits as defined in the UCMJ.)

So what does this mean for active duty military personnel, reserve military personnel, retired reserves, retired military, etc?  The legality of calling someone back to active duty for the purpose of court-martialing them is complicated by every variable in the book: age, active/active-reserve/inactive reserve/retired-reserve, retired, pay status, branch, and the elusive “good of the service.”  The decision involves politics, sometimes international politics. Sometimes the military needs to court-martial someone; sometimes they need to let a civilian court take over.

When my husband was in R.O.T.C. in college, a case was described in the military law part of the course.  A civilian woman killed her military spouse on the base…in Germany.  The German government refused to try her: she was the Americans’ problem.  The military *could not* try her: she was a civilian.  Neither legal entity wanted the case.  (He wasn’t told what finally happened; my guess is she was arrested by military police–who can arrest civilians–and transported back to the US to be handed over to civilian police there.)

Why would the military want to court-martial someone who is subject to the UCMJ instead of turning the case over to local authorities, when the offense occurs off-base? Two primary issues: the effect on other military personnel if the person isn’t sent to court martial, and the effect on the civilian population in that area.  If there’s concern that other military personnel will break discipline if the offender isn’t court-martialed, or if relations between military and the civilian government are so bad that military personnel believe they can’t get a fair trial in a civilian court, the military will want to hold onto the case.  On the civilian side, there can be concern that if the military does not court-martial the offender, the civilian population will assume the military doesn’t care about the offense, and worsen relations.

The same two primary issues are at work when the military chooses to relinquish the case to civilian justice. How will the troops react, and how will the civilian population (and its officials) react if the military demands to try it, and if instead it chooses not to. Relinquishing a US soldier/sailer/marine,airman to a foreign civilian justice system for trial is a serious matter  Relinquishing one to some US court systems can also raise serious concerns.

This is why it gets political.

So the simple answer for military and ex-military personnel involved in the January 6 assault on the Capitol isn’t that simple. In the majority of cases I’ve seen mentioned, and particularly for anyone separated from the service after adverse legal judgments *in* the military, forced return to service and court-martial rather than civilian court judgment would not happen. Most fit into the category of “civilians” and were not in uniform or acting as if they were regular military. In the case of the serving Marine officer who was charged only with striking a policeman in the Capitol (though other charges might be pending), the Marines turned him over to civilian authority (who didn’t jail him, this Marine vet mutters.) I hope they yanked his security clearances. I personally wish he had been made an example of by the Marines, but orders may have come down from DOD.

Then we come to Michael Flynn, ordinarily given his courtesy title of “General.” I refuse him that title, because of his actions and words before and since the insurrection, including last week. In my opinion he broke his oath of fealty to the Constitution and the American people long before January 6, even before suggesting that Trump impose martial law.  For instance, he attended a QAnon “Digital Soldiers Conference” in Atlanta in September 2019, and on July 4, Independence Day, 2020, Flynn tweeted a video of himself leading others in an oath to QAnon.

Taking such an oath is, to me, proof of treason, and his actions intending to incite people to join him in anti-Constitutional and anti-governmental actions are proof of conspiracy to commit sedition.  DOD has declined to question him about his most recent act of what I consider treason, when Flynn stated, in answer to a military person’s question why the US couldn’t have a military coup as Myanmar had this spring, “No reason; I mean, it should happen here. No reason. That’s right.”  He has since denied these words, spoken as he spoke them, mean what they mean. That he actually said there was no reason for a coup.  But those aren’t the same words in the same order in the same breath pattern.

If ever a former military officer deserved to be hauled in, court-martialed, and sentenced to death for treason (still a possibility in the military, not in civilian federal courts), Flynn does.  He turned against this country years ago, and has been effective in creating disunion and fomenting violence.  However: unless there are drastic changes in the chain of command, which would have to start with the president, he won’t be tried in a military court.  Will he ever be tried in a civilian court for the crimes he’s committed? Unclear. I certainly hope so.

The reasons given by one law firm for preferring civilian courts in all the January 6 cases involving military personnel seemed weak to me when I read them, though I understood their reasoning.  Trump’s abuses devalued the civilian court system, with the combination of McConnell in the Senate refusing to allow any of Obama’s appointees to be considered, and shoving through anyone Trump named, including two Supreme Court Justices who are neither one worth the trouble to spit on.  (Kavanaugh’s worse, but Gorsuch ALSO lied to Congress in his confirmation hearing.) To regain the public’s respect and trust, the justice department and the courts need to handle cases deriving from January 6th’s attacks on the Capitol promptly, and clearly in every legal way.  I agree that to regain the trust of the rest of us, all the courts, including the Supreme Court, must defend the Constitution, especially the right of all three branches to be what they were intended to be, not blurring the responsibilities.

Earlier in May, Lawfare blogger Joshua Braver argued that sedition and conspiracy to commit sedition–though easily chargeable under that law–should not be the point of entry for the serious crime committed and explained why: the wording is too broad, and tightening the particular charge would be difficult without endangering activities most of us find less serious than sedition.  I find that somewhat persuasive but not entirely.  His preference for the crime to be charged is the statute, 18 U.S.C. § 2383, Rebellion and Insurrection. Again, I have to defer to those with more legal knowledge anyway, and I’d be reasonably happy to have Mike Flynn in shackles with either, except that “Rebellion and Insurrection” carries a maximum sentence of ten years.  And I’d still like treason to stick.

And I want the DOJ to start handing down indictments for one of these: treason, sedition, rebellion and insurrection, instead of the hand-spanking charges of trespass or resisting arrest–everyday charges for ordinary crimes committed by everyday people–not conspirators, not doing material harm to the survival of the country. They were all demonstrably part of a conspiracy…incited by others, who still have not faced charges. That needs to change.

Postscript from reading LAWFARE today: a bill now edging toward a vote, and with bipartisan support, will if it passes make substantial changes in the law surrounding courts martial.  So if anyone’s planning a novel set in the future US military, read https://www.lawfareblog.com/lawfare-live-combating-sexual-assault-military, before writing.