Shades of Greene?  How the Pentagon could brand the law-abiding with “extremist behavior”

If you espouse the tenets of one of the world’s largest religions, could the Pentagon still brand you as exhibiting “extremist behavior” even if you break no law or violate any policy?  How about if you merely belong to a fully lawful fraternal, sororal, charitable, social or interest-based organization that expresses views protected by the First Amendment but are at odds with those of powerful public figures?  If your ex-spouse is “eccentric” or keeps a “dirty” house, does that make you suspect as a security risk?

Let’s unpack these questions a bit so you can decide for yourself if servicemembers ought to be concerned.

Context

Lawfire^® readers may recall the post from early February (“Is the Pentagon prepared for its “extremism” stand-down?  Six ideas that might help”) which offered some cautions and suggestions as to the Pentagon’s announced plan to  “stand-down” the force to address “extremism.”

The Pentagon pressed on with its sessions only to discover—as the blog post warned—that, among other things, its very definition of extremism was suspect.  As the Department of Defense (DoD) is wont to do, a study was ordered.  However, issues persist.

In the May 5^th edition of the Washington Post, journalist Missy Ryan examined the Pentagon’s ongoing “extremism” efforts in her article entitled “The Pentagon wants to take a harder line on domestic extremism. How far can it go?”  In it I, along with others, discuss some of the First Amendment issues associated with the DoD’s “harder line” approach.

Most of what I provided did not make it into the story, so I wanted to share with Lawfire^® readers my full input, and add a few additional comments as to how the Pentagon’s domestic extremism project could go seriously sideways.

“Passive” membership

Ms. Ryan’s main query to me concerned the legality of banning “passive membership” in a given organization, that is, whether or not mere membership in an organization, without any active behavior, could be banned.

Anyway, here is what I gave Ms. Ryan (emphasis added):

I don’t know the Pentagon’s thinking about the possibility of proscribing passive membership in certain organizations, but they may be wary of doing so because of a 1967 Supreme Court case that essentially found a statute infringed upon the First Amendment right to freedom of association where a civilian who was a member of the Communist Party was indicted for working in a defense facility.  The Court found the law unconstitutionally established “guilt by association alone, without any need to show that an individual’s association poses [a security] threat.”

It is true that First Amendment rights can be more restricted for members of the military than for civilians.  However, the Court specifically observed in this case that “it would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties – the freedom of association – which makes the defense of the Nation worthwhile.”  I believe it would be quite possible that the courts could apply similar thinking to members of the armed forces and treat them the same as civilian defense workers.

Even if the Pentagon could surmount the constitutional issue, there would no doubt be controversy about assembling a list of extremist organizations for which passive membership would be prohibited.

Despite having already conducted a ‘stand down’ across the military about extremism, it now appears the Pentagon isn’t sure what “extremism” really means and has had to order a study of the definition.  This “fire, ready, aim” approach is not, in my view, a formula for success.

The troops deserve to have a clear definition of what is or is not prohibited. In the Pentagon’s guidance for the stand down, it called upon servicemembers to inform on each other if they perceive “extremist behavior.”  This is understandable if the behavior is illegal or contrary to some policy, but the Pentagon goes much further in demanding that military members also report their peers for activities that are fully lawful and compliant with all policies.   

Specifically, here’s the troubling part of what military members have a “responsibility to report”:

Extremist behavior by Department personnel that does not rise to the level of a violation of the [Uniform Code of Military Justice] UCMJ or other applicable laws, or the Department of Defense’s, Military Department’s, or Military Service’s extremism policies may still be a concern under the U.S. Government’s national security adjudicative guidelines, used to assess eligibility for access to classified information or to hold a sensitive position.  (Emphasis added.)

Evidently, someone could dutifully follow the law and all the military’s extremism policies yet still be labelled as exhibiting “extremist behavior” and potentially suffer career-ending security clearance denials, as well as being deprived of the opportunity to serve in “sensitive positions.”

If there is something the military doesn’t want people to do, why don’t they put it in a policy?  And if the Pentagon’s battalions of lawyers can’t determine what that behavior might be and proscribe it in a policy, how can they expect millions of servicemembers to figure out what is a legal activity, yet still “extremist behavior” requiring a report?

I also think it’s critically important for the Pentagon to establish a clear process that enables servicemembers accused of “extremist behavior” to challenge that designation, especially when the cited activity “does not rise to the level of a violation of the UCMJ or other applicable laws, or the Department of Defense’s, Military Department’s, or Military Service’s extremism policies.”

Failure to provide adequate due process may raise another legal complication for the Pentagon. In the 1959 case of Greene v. McElroy, the Supreme Court examined an incident where a contractor was denied a security clearance because of “alleged Communistic associations and sympathies” – an accusation that cost him his job and shattered his professional life.

The Supreme Court found that in “the absence of explicit authorization from either the President or Congress, the Secretaries of the Armed Forces were not authorized to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination.”

That’s all I gave Ms. Ryan, but allow me to elaborate a bit more on this case and its implications, as well as some additional concerns.

More about Greene v. McElroy and how a security process can go awry

As you read the facts of Greene v. McElroy, you’ll see that most of the activities about which the Pentagon was concerned mainly involved not Greene himself, but rather his ex-wife. 

Greene explained that his former “wife held views with which he did not concur…and that these basic disagreements were the prime reasons that the marriage ended in failure.”  He vehemently denied being a Communist and insisted he disliked the theory of communism.

Sure, the case does enumerate some meetings with Russians, involvement in allegedly Communist front organizations, the possession of Communist literature in the home, and other matters that might arguably be relevant to a background investigation for a security clearance.  However, it also pointed out curious things the Pentagon investigators somehow thought to be legitimate security “concerns.”

These included queries to witnesses by about whether Greene’s ex-wife was “eccentric.”  For example, investigators asked if she kept a “dirty” house, and whether they knew of reports that she “[s]lept on a board in order to keep the common touch.” They also were evidently concerned about how she dressed, so they posed this question:

“Let me ask you this, conventionally, when somebody would invite you for dinner at their home, would you expect them, if they were a woman, to wear a dress and shoes and stockings and the usual clothing of the evening, or would you expect them to appear in overalls?” 

Unsurprisingly, there is nothing in the case to explain why the government thought a partner’s mode of dress related to trustworthiness for a security clearance.

Fortunately, the Supreme Court reversed the case, but it still is an unsettling illustration as to how so-called security “concerns” about lawful behavior can go terribly awry and wreck someone’s life.

Will the law-abiding be labelled as exhibiting “extremist behavior”?

Could defense secretary Lloyd Austin’s effort to recruit informers go wrong?  As I pointed out in my original essay, it is not inconceivable Catholics and other persons of faith – along with those with ideological or political differences with the Administration – could have their careers put at risk.

How?  Recall that on Inauguration Day, Archbishop José Gomez, the President of the United States Conference of Bishops, stated:

“I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender.  Of deep concern is the liberty of the Church and the freedom of believers to live according to their consciences.”

If a military member vigorously advocated Archbishop Gomez’s view of moral evils being advanced by the President’s policies – even in an unofficial, off-duty setting on personal social media – can anybody be certain the servicemember would not be flagged by someone as exhibiting “extremist behavior”?  What about membership in religious organizations similarly at odds with policies of the current Administration?

Will adherence to religious views of Catholics and many other faiths be labeled as extremist? 

Is such a scenario far-fetched?   Consider a 2019 essay in the Washington Post (“Anti-Catholic bigotry is alive in the U.S. Senate”) by a columnist Michael Gerson.  He related how then Sen. Kamala D. Harris (D-Calif.) and Sen. Mazie Hirono (D-Hawaii) disparaged membership in the Catholic fraternal organization known as the Knights of Columbus.  Gerson explained:

In considering the confirmation of Brian Buescher to a federal judgeship last month, Harris and Hirono submitted written questions that raised alarms about his membership in “an all-male society comprised primarily of Catholic men.” “Were you aware,” Harris asked, “that the Knights of Columbus opposed a woman’s right to choose when you joined the organization?”  And: “Have you ever, in any way, assisted with or contributed to advocacy against women’s reproductive rights?”  And: “Were you aware that the Knights of Columbus opposed marriage equality when you joined the organization?”

For those who know the Knights of Columbus, this is a bit like accusing your Aunt Harriet’s knitting circle of being a Mexican drug cartel.  In most of the country, the Knights of Columbus is a respected fraternal organization consisting of men who hand out coats to needy children, promote devotion to the Virgin Mary, support crisis pregnancy shelters and protest doggedly each year in the March for Life.

Here’s an especially alarming part of Gerson’s column: “Hirono,” he says, “regards the traditional moral views of the Knights as ‘extreme positions’.”  Gerson then connects the dots by pointing out that the Knights positions “are exactly the same positions of the Catholic Church itself.” 

We have to ask ourselves: is it truly unimaginable that someone might similarly label a servicemember’s expressions of what are essentially the positions of the Catholic Church as “extreme behavior” much as Senator Horono seems to have done? 

Is it really unthinkable these days that such expressions of moral belief could become a “concern” for the Pentagon that would be “used to assess eligibility for access to classified information or to hold a sensitive position”?

Writing in the Catholic publication, America, attorney Fay Vincent asked last September “Has anti-Catholic bias disappeared in American public life, or has it taken new forms?”  Vincent references the Buescher confirmation incident with Harris and Hirono and adds this:

That [Buescher] episode echoed one in 2017, also at a Senate confirmation hearing, in which Senator Dianne Feinstein (another Democrat from California), told Amy Coney Barrett, then a law professor at the University of Notre Dame who had been nominated to a federal appeals court, that her “dogma” as a Catholic who had written and spoken about church teaching raised serious questions about her judicial qualifications. 

Fay concludes:

“Anti-Catholic bias is no longer as crude or as blatant as what [John F.] Kennedy faced, or Al Smith before him when he ran for president in 1928.  But prejudice still arises in more subtle forms, as in the notion that a Catholic identity is fine in public life but adherence to Catholic teaching is not.”

Amazingly, neither the Pentagon’s stand-down materials nor its recently convened “extremism” study even mentioned DoDI 1300.17, Religious Liberty in the Military Services (which I highlighted in my previous essay since it is supposed to help protect the civil liberties of those in uniform.)

Along with another Pentagon policy announcement, such inexplicable omissions may have something to do with retired Army general Carter Ham penning an op-ed on March 21^st.  In it, he reminded the Pentagon that “[a]s a fundamental tenet of unit cohesion, teamwork and camaraderie, service members must always respect the beliefs and practices of their fellow service members even when such beliefs differ from their own.” He added:

“The Department of Defense correctly seeks to protect the rights of all.  The secretary of defense should make it explicit that those protections apply equally, and that each individual’s moral and religious beliefs will be respected.”

The need for due process to protect the lawful “beliefs and practices of their fellow service members”

The Pentagon’s training materials do not suggest, let alone explain, how someone might battle the devastating accusation of having exhibited “extremist behavior.”

Is there no due process, no way of confronting the accuser, no way to appeal the designation?  Is there no procedural transparency?  The absence of virtually any discussion in the training materials or the extremism study order about due process for the law-abiding who nevertheless could be accused of “extremist behavior” is simply wrong in every way.

Ultimately this aspect of the Pentagon’s approach could potentially pit person against person, degrade unit cohesion, increase suspicion and distrust, erode the bonds that sustain troops in combat, and potentially upend and destroy a person’s career (and life).  Of course, it could have significant mental and emotional health impacts on individuals.  None of this serves our national security.

Concluding observations

No one need agree with another’s religious beliefs, but I echo General Ham’s recommendation that the “secretary of defense should make it explicit that…that each individual’s moral and religious beliefs will be respected.”

To be crystal clear, it is vitally important that the military root out racism and cleanse the ranks of those who violate the law or policy, or who advocate that others do so – especially where violence could be involved. 

Let’s fix what’s broken but not break others based on hearsay, speculation, and misapprehensions.

In particular, the Pentagon should not validate a process that could label as “extremist behavior” the expression of bona fide religious or moral beliefs under circumstances fully protected by the First Amendment.

Nor should it countenance any procedure whereby informers, seemingly without accountability, can accuse fellow service members of “extremist behavior” even where that activity is not only lawful, but also complies with DoD’s myriad policies.

Allowing that is something that can put virtually anyone in uniform at risk.

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!