About a month before rioters, including some with U.S. military training, stormed the Capitol on Jan. 6, lawmakers deleted from the annual Pentagon policy bill language that would have explicitly made violent extremism a crime in the military code of justice.

The provision in the defense bill, which the House had agreed to, would have barred violent acts that are either motivated by bigotry or designed to “influence, affect or retaliate against the policy or conduct of the government of the United States.” It would also have criminalized attempting to commit such acts, soliciting others to do them or conspiring to accomplish them.

The behind-the-scenes debate over the provision takes on new meaning after the Jan. 6 riot. But even when the bill was being written, many on Capitol Hill were worried about dozens of cases in recent years of servicemembers who had ties to white supremacist groups committing acts of violence. A 2020 Military Times survey showed that one-third of military personnel had seen signs of extremism in their units.

Defense Secretary Lloyd J. Austin III has now made violent extremism in the ranks a prime focus, and he announced last week that each military branch would pause activities sometime in the next 60 days to take stock of the problem.

California Democrat Jackie Speier, a senior member of the House Armed Services Committee, wrote the provision to create a new section of military law. Speier said senators negotiating the final measure tore out her provision to avoid a veto by President Donald Trump, even though acting Defense Secretary Christopher Miller quietly announced in December that the Pentagon favored creating the new military law.

The conference report itself, oddly enough, contains language practically endorsing it. And Trump went on to veto the measure anyway over language that would have required the military to change the names of military bases named for Confederate generals — a veto that Congress overrode.

“The Senate eliminated it from the final National Defense Authorization Agreement, claiming they were trying to avoid a veto from President Trump. We all know how that turned out,” Speier said in a statement to CQ Roll Call. “If it had been included in the NDAA, it would be law and apply to current servicemembers and even some military retirees who attacked the Capitol on January 6.”

Dispute over tools

A top aide to Republicans on the Senate Armed Services Committee said there was extensive debate as to whether the provision, as drafted, would pass constitutional muster and noted that other language to combat extremism in the military was contained in the final bill — including a new deputy inspector general to oversee diversity programs and to monitor efforts to combat extremism in the military.

Sen. James M. Inhofe, R-Okla., who was chairman of the committee, told CQ Roll Call in a statement that he does not think a separate ban on violent extremism is required in military law.

“The Uniform Code of Military Justice already offers all the tools necessary to prosecute service members who have committed violent offenses, including any criminal act a violent extremist would potentially commit, and I am confident the UCMJ can be used as needed to protect all members of the military community,” Inhofe said. “This kind of behavior directly undermines the ability of our Armed Forces to perform their constitutionally mandated role of defending the nation.”

Notably, however, not only did the Pentagon, under Trump, support creating the new law, but the conferees’ report essentially said it might be a good idea, even as they killed it.

“The conferees are increasingly concerned with the number of recent violent extremist activities which involve members and former members of the military,” their report said. “The conferees believe that a punitive article under the Uniform Code of Military Justice to prohibit violent extremist criminal acts may be appropriate to deter and prosecute this behavior within the Armed Services.”

Against rules, not law

With President Joe Biden in the White House, Speier and others believe a new military law barring violent extremism will be enacted in the next NDAA.  

To be sure, committing violent acts is against the military’s law. A Defense Department regulation, meanwhile, bars participation in racist or extremist groups, and violating that rule is punishable under military law just as disobeying any order is, experts say.

But advocates of the new article in the military code say racist and anti-democracy violence deserves special attention in the code.

Such a new article in law would act as a deterrent, they say. The House-passed provision would have targeted not just violent actors but also their supporters and ringleaders. It would also enable better tracking of allegations, prosecutions and convictions for violent extremism in the ranks, the proponents say. 

The new law would bar violent actions motivated by certain beliefs and would not  unconstitutionally restrict speech, advocates say. 

Rash of racism

The problem runs wide in the military, but it is not clear how deep. 

Most servicemembers, of course, have no ties to extremism. But the force has been plagued for years with scattered reports of current and former members’ involvement in anti-government or racism-fueled violence. 

For example, a PBS report indicated that active-duty personnel participated in the 2017 white supremacist rally in Charlottesville, Va. 

In 2019, a Coast Guard officer was charged with amassing an arms stockpile and planning to use it on public officials and media figures.

Last year, an active-duty airman was charged in the fatal shooting of a federal security officer in Oakland; three men with varying ties to the U.S. military will stand trial in March for trying to spark violence at protests in Nevada; and an Army soldier was charged with conspiring with satanic neo-Nazis to kill fellow troops.

Military role in insurrection

Is not yet fully clear how many active-duty servicemembers, reservists and veterans played a role in the Jan. 6 attack on the Capitol. But they appear to have been overrepresented in the mob, given their share of the general population. News reports have indicated that somewhere around a fifth of those charged with offenses committed on that day had military ties. To date, 20 people believed to be veterans and another two military reservists have been charged.

Eugene R. Fidell, a senior research scholar at Yale Law School and adjunct professor at New York University who specializes in military law, said it is not clear yet if any of the Jan. 6 rioters are subject to military law, which applies only to those in the regular force or reservists when they are called to active duty. Whether it also applies to retired regulars is an issue in pending litigation, he added.

But the new provision, if enacted, could have a deterrent effect if the president sets a sufficiently high maximum penalty, he said.

The Pentagon announced earlier this month that a dozen members of the National Guard force that was guarding the Capitol after the riot had to be sent home or were prevented from deploying to Washington because the FBI raised security questions about them, including about affinity for extremist groups.

Speier, meanwhile, wrote a Jan. 29 letter to Biden, Austin and Director of National Intelligence Avril Haines urging them to require screening the social media posts of military recruits and applicants for security clearances in order to discover signs of extremist sympathies.

The U.S. government’s approach, Speier wrote, is “insufficient to the threat.”