Racial extremism in the army

Military Law Review

Volumn , Issue 159, 1999, Pages 1-86

  Hudson, Walter M ^a  

^a NONE

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EID: 0039701630     PISSN: 00264040     EISSN: None     Source Type: Journal    
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References (427)

1. th Judge Advocate Officer Graduate Course.
2. Virginia A. White, Killings Tied to Racism, FAYETTEVILLE OBSERVER-TIMES, Dec. 8, 1995, at 1A.
3. Id.
4. Id.
5. rd GI Charged in Murder, FAYETTEVILLE OBSERVER-TIMES, Dec. 9, 1995, at 1A.
6. Id.
7. Id.
8. Information Paper, Office of the Staff Judge Advocate, 82d Airborne Division, subject: Background Information on PFC James N. Burmeister, SPC Randy L. Meadows, and PFC Malcolm M. Wright (14 Mar. 1996) [hereinafter Information Paper on Background] (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
9. Id.
10. Id.
11. William Branigan & Dana Priest, 3 White Soldiers Held in Slaying of Black Couple, WASH. POST, Dec. 9, 1995, at A1.
12. Neo-Nazi "skinheads," given their name because of their characteristically shaved heads, are usually loosely affiliated bands of white youths who profess white supremacist beliefs. See infra pp. 19-22.
13. Serge F. Kovaleski, Soldiers in White Supremacist Uniforms, WASH. POST, Dec. 11, 1995, at A1.
14. William Branigan & Dana Priest, Army Plans to Investigate Extremists Within the Ranks, WASH. POST, Dec. 13, 1995, at A1.
15. Daniel Voll, A Few Good Nazis, ESQUIRE, Apr. 1996, at 102-12; Memorandum from Major Rivers Johnson, Public Affairs Officer, 82d Airborne Division, AFVC-PA, to Commander, 82d Airborne Division, Commander, XVIII Airborne Corps, Commander, Forces Command, Secretary of the Army, and Commander, Criminal Investigation Command, subject: ABC Television's "Primetime" News Show (12 Mar. 1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
16. Memorandum from Lieutenant Colonel David L. Hayden, Staff Judge Advocate, 82d Airborne Division, AFVC-JA, to Commanding General, 82d Airborne Division, subject: Actions Taken by 82d Airborne Division Command and Staff Against Extremism (2 Jul.1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division) [hereinafter Memorandum on Actions Taken].
17. See Regina Galvin, Hate in the Army, ARMY TIMES, Mar. 25, 1996, at 12; Grant Willis, EEO System: Not Broken, But Not Perfect, ARMY TIMES, Apr. 1, 1996, at 12; Regina Galvin, Redemption of a Skinhead, ARMY TIMES, May 20, 1996, at 12.
18. See Regina Galvin, Hate in the Army, ARMY TIMES, Mar. 25, 1996, at 12; Grant Willis, EEO System: Not Broken, But Not Perfect, ARMY TIMES, Apr. 1, 1996, at 12; Regina Galvin, Redemption of a Skinhead, ARMY TIMES, May 20, 1996, at 12.
19. See Regina Galvin, Hate in the Army, ARMY TIMES, Mar. 25, 1996, at 12; Grant Willis, EEO System: Not Broken, But Not Perfect, ARMY TIMES, Apr. 1, 1996, at 12; Regina Galvin, Redemption of a Skinhead, ARMY TIMES, May 20, 1996, at 12.
20. See Charles C. Moskos, From Institution to Occupation: Trends in the Military Organization, 4 ARMED FORCES & SOC'Y 41 (1977).
21. Laws that only prohibit types of speech from a certain viewpoint (e.g., prohibiting speech made by certain political parties or religions) are considered forms of "viewpoint-based" discrimination and are presumptively unlawful. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (the most important recent case in this area).
22. Id.
23. 417 U.S. 733 (1974).
24. See Relford v. U.S. Disciplinary Commandant, 401 U.S. 355 (1971).
25. This article does not address promulgating hate crime laws in the military, the preferral of charges against racial extremists, or court-martial strategies in cases involving racial extremists. It also does not deal with ways to identify racial extremists at the unit level, such as unit tattoo policies.
26. The effect on unit training at the 82d Airborne Division was widespread. Hundreds of hours were spent on classes, investigations, inspections, responding to media inquiries, taking administrative and disciplinary actions against extremists, sensing sessions, and courts-martial. Memorandum on Actions Taken, supra note 16.
27. Several states have passed some sort of bias crime legislation. Alabama, California, Delaware, Florida, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Mississippi, Montana, Nevada, New Jersey, New York, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia, and Wisconsin have statutes that either prohibit bias crimes or allow the enhancement of penalties if bias was involved. See ALA. CODE § 13A-5-13 (1994); CAL. PENAL CODE § 422.6 (1998 & West Supp. 1998); DEL. CODE ANN. it. 11 § 1304 (1995); FLA. STAT. ANN. § 775.085 (West 1992); GA. CODE ANN. § 16-11-37 1996); 720 ILL. COMP. STAT. ANN. 5/122-7.1 (West 1993); IOWA A CODE § 729 A.1 (1993); LA. REV. STAT. ANN. § 14:107.2 (West Supp. 1998); MASS. GEN. LAWS. ch. 265 § 39 (West 1990); MISS. CODE ANN. § 99-19-301 (1994); MONT. CODE ANN. § 45-5-222 (1996); NEV. REV. STAT. § 193.1675 (1997); N.J. STAT. ANN. § 2C 44-3 (West 1995); N.Y. PENAL LAW § 240.31 McKinney 1989); OHIO REV. CODE ANN. § 2927.12 (Anderson 1996); OKLA. STAT. ANN. tit. 21 § 850 (West Supp. 1998); S.D. CODIFIED LAWS § 22-19B-1(Michie 1998); TENN. CODE ANN. § 39-17-309 (1997); TEX. PENAL CODE ANN. § 12.47 (West 1994); UTAH CODE ANN. § 76-3-2-33 (1995); WASH. REV. CODE ANN. § 9A.36.078 (West Supp. 1998); W. VA. CODE § 61-6-21 (1997); WIS. STAT. ANN. § 939.645 (West 1996). While Maine, Minnesota, and Rhode Island do not have statutes prohibiting bias crimes or enhancing penalties because of bias, they have statutes that require bias crime training and reporting requirements for police. See ME. REV. ST. ANN. tit. 25 § 2803-B (West Supp. 1997); MINN. STAT. ANN. § 626.8451 (West Supp. 1998); R.I. GEN. LAWS § 42-28-46 (1993).
28. Two criminologists assert that the "epidemic" of hate crimes in the United States is largely a product of partisan political groups and the media. Some of the specific problems with this claim are: (1) the relativelys mall number of "hate crimes" (for example, the authors cite that nationwide in 1991, the first year statistics were reported, there were 4588 reported hate crimes out of 14,872,883 (less than .039%); (2) the conflicting data (for example, the FBI reported 12 hate murders in 1991; Klanwatch reported 27); (3) the extremely spotty reporting efforts (there is no consistent method from state to state for collecting hate crime information); and (4) the reporting methodologies of various collection groups (the Antidefamation League (ADL), for example, reports noncriminal acts of bigotry such as noncriminal verbal harassment, as well as criminal ones). See James B. Jacobs & Jessica S. Henry, The Social Construction of a Hate Crime Epidemic, 86 J. CRIM. L. & CRIMINOLOGY 366 (1996).
29. See Mark Fleisher, Down the Passage Which We Should Not Take: The Folly of Hate Crimes Legislation, IL. J.L. POL'Y, 27, 28, 34 (1993). Fleisher points out that in a politically or a racially charged case, a jury acquittal or a major conviction can carry tremendous symbolism, such as the system is irredeemably racist, or that the jury was prejudiced one way or another. Id. at 34.
30. As of March 1998, the Army has court-martialed one soldier for violating the revised policy on extremism. In October 1997, Specialist Jeffrey Brigman of the 101st Air Assault Division was convicted at a general court-martial for possessing an explosive device in his barracks room, in violation of local policy and state law, and for distributing extremist literature on post. Brigman had been putting up flyers around post seeking others to join the Clarksville Area Skinheads, a local racist organization. The court-martial found him not guilty of recruiting others to join. He was sentenced to two years confinement and received a bad conduct discharge. Brigman never challenged the constitutionality of the Army's new policy on extremism at trial. Telephone Interview with Major Jonathan Potter, Chief, Military Justice, Office of the Staff Judge Advocate, 101st Air Assault Division and Fort Campbell, Fort Campbell, Ky. (Feb. 27, 1997).
31. ROGER SCRUTON, DICTIONARY OF POLITICAL THOUGHT 164 (1982).
32. JOHN GEORGE & LAIRD WILCOX, AMERICAN EXTREMISTS 54 (1996). George is a professor of political science at the University of Central Oklahoma. Wilcox is the founder of the Wilcox Collection on Contemporary Political Movements at the University of Kansas, one of the largest of its kind in the world, which contains hundreds of thousands of documents on all political movements. Id. at 6. He is also editor and publisher of annual guides on extremism. See LAIRD WILCOX, GUIDE TO THE AMERICAN RIGHT & GUIDE TO THE AMERICAN EFT (1997).
33. JOHN GEORGE & LAIRD WILCOX, AMERICAN EXTREMISTS 54 (1996). George is a professor of political science at the University of Central Oklahoma. Wilcox is the founder of the Wilcox Collection on Contemporary Political Movements at the University of Kansas, one of the largest of its kind in the world, which contains hundreds of thousands of documents on all political movements. Id. at 6. He is also editor and publisher of annual guides on extremism. See LAIRD WILCOX, GUIDE TO THE AMERICAN RIGHT & GUIDE TO THE AMERICAN EFT (1997).
34. John George and Laird Wilcox look at extremists as persons psychologically prone to extremism, regardless of political affiliation: Both of us have had the feeling many times that the Bircher with whom we were talking could just as easily have been a Communist and vice-versa. It may be merely a question of who "gets to them" first. We tend to view the existence of an extremism-prone personality as a more reasonable hypothesis than attempts to account for the "pathology" of a particular point of view. GEORGE & WILCOX, supra note 30, at 66.
35. Id. at 54. George and Wilcox list twenty-two common traits of extremists. While all people exhibit some of these traits at times, the important distinction is that "[w]ith bona fide extremists, these lapses are not occasional." Id. The traits are: (1) character assassination; (2) name calling and labeling; (3) irresponsible sweeping generalizations; (4) inadequate proof for assertions; (5) advocacy of double standards; (6) tendency to view opponents and critics as essentially evil; (7) Manichean worldview; (8) advocacy of some degree of censorship or repression of opponents and/or critics; (9) a tendency to identify themselves in terms of who their enemies are: whom they hate and who hates them; (10) tendency toward argument by intimidation; (11) use of slogans, buzzwords, and thought-stopping clichés; (12) assumption of moral or other superiority over others; (13) doomsday thinking; (14) a belief that doing bad things in the service of a "good" cause is permissible; (15) emphasis on emotional responses, and, correspondingly, less importance to reasoning and logical analysis; (16) hypersensitivity and vigilance; (17) use of supernatural rationale for beliefs and actions; (18) problems tolerating ambiguity and uncertainty; (19) inclination toward "groupthink"; (20) tendency to personalize hostility; (21) a feeling that the "system" is no good unless they win; and (22) tendency to believe in far-reaching conspiracy theories. Id. at 56-61
36. Message, 201604Z Dec 96, Headquarters, Dep't of Army, DAPE-ZA, subject: Revised Army Policy on Participation in Extremist Organizations or Activities, para. 4-12C.2.A. (20 Dec. 1996) [hereinafter AR 600-20, para. 4-12 (new policy)]. A new Army command policy regulation has not been published. The new Army extremist policy is still only available in the message format.
37. Id.
38. The extremist spectrum includes communist, socialist, environmentalist, homosexual libertarian, anti-communist, anti-tax, anti gun-control, and so-called "patriot" or anti-government (usually associated with the far right and militias) type extremists. For a complete listing of these groups, see WILCOX, supra note 30.
39. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.A.
40. Conceivably, if a right-wing extremist advocates the use of force or violence or unlawful means to deprive others of rights, he could fall under the definition; however, the definition does not list right-wing extremism anti-government extremism.
41. th Cong. 7 (1996) (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center) [hereinafter Hearing on Extremist Activity in the Military].
42. th Cong. 7 (1996) (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center) [hereinafter Hearing on Extremist Activity in the Military].
43. Interview with Chaplain (MAJ) Lindsay Arnold, Army Leadership Division, Office of the Deputy Chief of Staff, Personnel (Leadership Division), U.S. Army, in Charlottesville, Va. (Feb. 18, 1997). Chaplain Arnold is overseeing the implementation of the Army's program to combat extremism.
44. George and Wilcox show three possible approaches: (1) the linear scale/Gallup poll approach that arbitrarily determines that beyond a certain point on a scale is the far right and far left, which serves as the boundary between the political mainstream and extremism; (2) the "popularity contest" approach, in which the popular majority decides what is extremist; and (3) the behavioral approach, which they adopt, and which defines extremism in terms of behavioral characteristics. GEORGE & WILCOX, supra note 30, at 11.
45. Major Edwin S. Castle, Political Expression in the Military 11 (1988) (unpublished thesis, The Judge Advocate General's School (TJAGSA)) (on file with TJAGSA library). The list of political activities prohibited for soldiers includes: taking part in partisan political management or campaiggns or making public speeches in the course thereof; speaking before a partisan political gathering of any kind to promote a partisan political party or candidate; taking part in any radio, television, or other program or group discussion as a advocate of a partisan political party or candidate; and marching or riding in a partisan political parade. U.S. DEP'T OF ARMY, ARMY REG. 600-20, ARMY COMMAND POLICY, App. B-2. (30 Mar. 1988).
46. The political neutrality of the military is a long-standing principle. See Greer v. Spock, 424 U.S. 828, at 839 (1976). In Greer, a suit was brought to enjoin enforcement of a local army regulation that banned speeches and demonstrations of partisan political nature and prohibited distribution of literature without prior approval of post headquarters. The Court upheld the regulation using the rationale that the regulation did not distinguish among political affiliations and the military authorities did not discriminate against the plaintiffs from speaking based upon their supposed political views: [T]he military as such is insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates. Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history. Id. at 839.
47. Morris Dees, the lead attorney of the Southern Poverty Law Center, perhaps the most famous "watchdog" organization of extremist organizations, states: Not every militia unit has racist or violent tendencies. Some have been formed by people who really believe the units provide a legitimate way to express their anger and frustration with a government that has grown too distant and, in some cases, hostile. These militia members love their country and believe in the Constitution. They aren't haters and they don't associate with haters. MORRIS DEES & JAMES CORCORAN, GATHERING STORM: AMERICA'S MILITIA THREAT 41 (1996). Dees goes on to say that "the real danger lies beneath the surface." Id. Language in the extremist policy that included per se militia-type extremists could thus encompass the type mentioned by Dees-non-violent and non-racist types who believe militias and similar organizations provide a legitimate mode of expression for their views on the federal government.
48. See DANIEL PIPES, CONSPIRACY 158-65 (1997). Pipes asserts that scholars have traditionally viewed conspiracy theorizing (by people who are often political extremists as well) as a far right phenomenon rather than a far left one for several reasons, among them: (1) the Left has "better credentials" ("[C]onspiracy theorists on the right consist of skinheads, Neo-Nazis, and other Yahoos who express vicious ideas about Jews and batty ones about secret societies . . . . In contrast, leading leftists boast impeccable educational credentials and sometimes direct work experience."); (2) the Left's presentation is more sophisticated ("A right-wing conspiratorial anti-Semite cranks out crude tracts with tiny circulation; his leftist equivalent, a writer like Gore Vidal, writes best sellers."); (3) the Left has a more prestigious intellectual heritage ("Compare Nazi and communist writings. The former derive from a mishmash of pseudoscience and fanaticism . . . . The latter evolved out of a tradition of high-powered political theory that called on the noblest of sentiments."); and (4) the Left's presentation is more subdued ("The Right tends to postulate a vast, historical, all-encompassing conspiracy; the Left usually focuses on a less implausible plot."). Id.
49. JAMES RIDGEWAY, BLOOD IN THE FACE 22 (2nd ed. 1995). Some white supremacists openly disavow right-wing connections. One of the newer supremacist groups, the White Aryan Resistance (WAR), states on its web page that it is "strictly racist" and that "healthy ideas" come from "left and right." It appears far more moderate, and even "leftist" in its orientation than older groups such as the Ku Klux Klan. Examples include its positions on homosexuals ("[t]he homosexual population is quite small and not a major threat to Aryan survival") women ("WAR encourages women to involve themselves to the limits of their abilities to further the interests of the race. Qualified women operate at all levels of WAR . . . ."), abortion ("WAR does not promote force against white women to bear unwanted children") and the environment (WAR is "well aware of corporate greed and its effect on our delicate environment"). See Tom Metzger, White Aryan Resistance (visited Mar. 1, 1998) 〈http://www.resist.com〉. See also Burney, America's Invisible Empire, Knights of the Ku Klux Klan (visited Mar. 1, 1998) 〈http://www.airnet.net/niterider/〉 (the web site of America's Invisible Empire, a Northern Alabama based Ku Klux Klan group, which presents a more "traditional" right-wing view-anti-abortion, regardless of race; strongly anti-gay rights).
50. JAMES RIDGEWAY, BLOOD IN THE FACE 22 (2nd ed. 1995). Some white supremacists openly disavow right-wing connections. One of the newer supremacist groups, the White Aryan Resistance (WAR), states on its web page that it is "strictly racist" and that "healthy ideas" come from "left and right." It appears far more moderate, and even "leftist" in its orientation than older groups such as the Ku Klux Klan. Examples include its positions on homosexuals ("[t]he homosexual population is quite small and not a major threat to Aryan survival") women ("WAR encourages women to involve themselves to the limits of their abilities to further the interests of the race. Qualified women operate at all levels of WAR . . . ."), abortion ("WAR does not promote force against white women to bear unwanted children") and the environment (WAR is "well aware of corporate greed and its effect on our delicate environment"). See Tom Metzger, White Aryan Resistance (visited Mar. 1, 1998) 〈http://www.resist.com〉. See also Burney, America's Invisible Empire, Knights of the Ku Klux Klan (visited Mar. 1, 1998) 〈http://www.airnet.net/niterider/〉 (the web site of America's Invisible Empire, a Northern Alabama based Ku Klux Klan group, which presents a more "traditional" right-wing view-anti-abortion, regardless of race; strongly anti-gay rights).
51. JAMES RIDGEWAY, BLOOD IN THE FACE 22 (2nd ed. 1995). Some white supremacists openly disavow right-wing connections. One of the newer supremacist groups, the White Aryan Resistance (WAR), states on its web page that it is "strictly racist" and that "healthy ideas" come from "left and right." It appears far more moderate, and even "leftist" in its orientation than older groups such as the Ku Klux Klan. Examples include its positions on homosexuals ("[t]he homosexual population is quite small and not a major threat to Aryan survival") women ("WAR encourages women to involve themselves to the limits of their abilities to further the interests of the race. Qualified women operate at all levels of WAR . . . ."), abortion ("WAR does not promote force against white women to bear unwanted children") and the environment (WAR is "well aware of corporate greed and its effect on our delicate environment"). See Tom Metzger, White Aryan Resistance (visited Mar. 1, 1998) 〈http://www.resist.com〉. See also Burney, America's Invisible Empire, Knights of the Ku Klux Klan (visited Mar. 1, 1998) 〈http://www.airnet.net/niterider/〉 (the web site of America's Invisible Empire, a Northern Alabama based Ku Klux Klan group, which presents a more "traditional" right-wing view-anti-abortion, regardless of race; strongly anti-gay rights).
52. George and Wilcox view most political extremism as non-threatening. They assert that the various persecutions and constitutional violations committed in the name of fighting extremism are a greater threat: "The net effect of domestic extremism has been negligible. The net attempts to exterminate it have been quite telling, a legacy that haunts us to this day." GEORGE & WILCOX, supra note 30, at 48.
53. See infra pp. 1-2. Also, Timothy McVeigh, convicted of blowing up the Murrah Federal Building in Oklahoma City, is a former soldier with ties to white supremacist extremism. Hearing on Extremist Activity in the Military, supra note 38, at 13 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center).
54. See infra pp. 21-23.
55. In testimony before the House of Representatives, the Director of Klanwatch, an organization of the Southern Poverty Law Center that monitors extremists, stated that, in the judgment of the Southern Poverty Law Center, the National Alliance was the most dangerous neo-Nazi group in America today. Hearing on Extremist Activity in the Military, supra note 38, at 12 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center).
56. See ANDREW MCDONALD, THE TURNER DIARIES (1996). The Turner Diaries is a novel written by William Pierce under the pseudonym Andrew McDonald. It is about a white revolutionary group called The Order that murders and sets off bombs to trigger a race war; the novel ends with a nuclear attack by the United States on Israel. RIDGEWAY, supra note 45, at 112. Timothy McVeigh avidly read The Turner Diaries while in the Army, and even gave the book to some of his fellow soldiers. Hearing on Extremist Activity in the Military, supra note 38, at 13 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center).
57. Hearing on Extremist Activity in the Military, supra note 38, at 13 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center). A former soldier in the 82d Airborne Division posted a National Alliance recruiting billboard outside of Fort Bragg several months before the December 1995 murders. Id. at 14.
58. He testified: 90% [of patriot members] are relatively harmless. They are made up of people who are extremely frustrated and angry at the government who are searching for some forum to vent their frustrations. Racism may or may not have anything to do with grinding that ax, so to say. What we're alarmed about is the 10% underbelly that is being infiltrated by current and past members of the white supremacy movements . . . ." Id. at 36. See supra note 43 and accompanying text.
59. Jerry Anderson, the Equal Opportunity Manager in the Equal Opportunity Office of the Department of Defense wrote: The [Department of Defense] policy on prohibited activities and supremacist groups was appended to a policy issuance intended to deal with military personnel who were attempting to form unions, to organize anti-Vietnam war organizations, or publish and distribute 'underground newspapers' which encouraged unions, anti-war protests, and other counter-culture activities popular among young people in the 1960s. It is not a good policy mix to add hate groups to this milieu. Jerry Anderson, Draft Unpublished Report on Extremism (Dec. 1996) (on file with author).
60. Prior to the rise of the Ku Klux Klan, the most prominent "racial extremist" group in the United States was the so-called "Know-Nothings" (named because when asked about his political affiliations, a member would respond "I know nothing" to keep his associations secret). They were an anti-immigrant (particularly anti-Catholic and anti-Irish) political party that at one point claimed five senators and 43 representatives. The Irish Catholics had their own extremists, the terroristic "Molly Maguires," who murdered law enforcement officials and bombed government buildings throughout the mid-nineteenth century. GEORGE & WILCOX, supra note 30, at 20.
61. Ridgeway has a chart that lists and links the various groups and their key individuals The original Ku Klux Klan, for example, has splintered into subgroups, to include other Klan organizations (such as the United Klans of America, the Alabama Knights, and California Knights), and David Duke's National Association for the Advancement of White People (NAAWP) The White Aryan Resistance (WAR) has links to both the Klan and neo-Nazi skinheads. Its founder, Tom Metzger, was a member of the California Knights, though most of the members of WAR are more affiliated with skinheads. RIDGEWAY, supra note 45, at 32-33.
62. PIPES, supra note 44, at 52-75.
63. Id. at 84-85. RIDGEWAY, supra note 45, at 35-50. According to the Creativity Movement, a newer racist organization, the origins of Jewish "depravity" can be traced to the Talmud. Creativity's leader, Reverend Matt Hale, produces a long string of quotes from the Talmud, some incorrect and most taken out of context, which, among other things, appear to sanction the killing of "goyim" (Gentiles) (Hilkkoth Akum X1: "Do not save Goyim in danger of death"; Hilkoth Akum X1: "Show no mercy to the goyim"); pedophilia (Yebhamoth 11b.: "Sexual intercourse with a little girl is permitted if she is three years of age"); lying under oath (Schabouth Hag.6d: "Jews may swear falsely by use of subterfuge wording"); and other heinous activities, to include a belief in ultimate world domination (Simeon Haddarsen, fol. 56-D: "When the Messiah comes, every Jew will have 2800 slaves"). Hale, in typical white supremacist fashion, also reveals aspects of the "Talmudic Conspiracy" in the Jewish control of electronic news and entertainment media, newspapers, and other mass media. See The Creativity Movement (visited Mar. 2, 1998) 〈http:// www.rahowa.com〉.
64. RIDGEWAY, supra note 45, at 51. Other white supremacist groups with nineteenth century origins include the anti-Semitic Church of Christian Identity and the Church of Jesus Christ, which have small followings in the Pacific Northwest. They are based on a century old idea that the lost tribes of Israel are really English and Anglo-Americans, and that modern Jews are cursed. DEFENSE EQUAL OPPORTUNITY MANAGEMENT INSTITUTE (DEOMI), DEOMI SPECIAL TOPICS PAMPHLET 94-1, EXTREMIST GROUPS 10, 12 (1994) [hereinafter DEOMI].
65. RIDGEWAY, supra note 45, at 51.
66. GEORGE & WILCOX, supra note 30, at 20-21.
67. RIDGEWAY, supra note 45, at 52.
68. GEORGE & WILCOX, supra note 30, at 21.
69. DEOMI, supra note 58, at 3-4. The Klan so widely permeated the United States that there were nore members in Indiana and Ohio than any single Southern state.
70. Id. at 4.
71. Id. at 4-5. The Klan enjoyed a brief resurgence in 1980s due to the popularity of David Duke, who presented a less extreme form of the Klan's philosophy and aligned himself with some traditional conservatives. LOREN CHRISTENSEN, SKINHEAD STREET GANGS 140 (1994). This proved to be short-lived. According to the latest Southern Poverty Law Center's intelligence report, however, the Klan, after several years of decline, is starting to resurge. Two Klan groups experienced significant increases in 1996-97: the Indiana based American Knights of the Ku Klux Klan grew from one chapter to twelve in 1996, and Thom Robb's Knights of the Ku Klux Klan grew from two chapters to 17 in fifteen states. The Year in Hate, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 6 (1998). According to the same report, the Klan, which derives much of its symbolism from Britain (such as the ancient Scottish practice of cross-burning), is now gathering recruits in England and Scotland. The Klan Overseas, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 19 (1998).
72. Id. at 4-5. The Klan enjoyed a brief resurgence in 1980s due to the popularity of David Duke, who presented a less extreme form of the Klan's philosophy and aligned himself with some traditional conservatives. LOREN CHRISTENSEN, SKINHEAD STREET GANGS 140 (1994). This proved to be short-lived. According to the latest Southern Poverty Law Center's intelligence report, however, the Klan, after several years of decline, is starting to resurge. Two Klan groups experienced significant increases in 1996-97: the Indiana based American Knights of the Ku Klux Klan grew from one chapter to twelve in 1996, and Thom Robb's Knights of the Ku Klux Klan grew from two chapters to 17 in fifteen states. The Year in Hate, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 6 (1998). According to the same report, the Klan, which derives much of its symbolism from Britain (such as the ancient Scottish practice of cross-burning), is now gathering recruits in England and Scotland. The Klan Overseas, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 19 (1998).
73. Id. at 4-5. The Klan enjoyed a brief resurgence in 1980s due to the popularity of David Duke, who presented a less extreme form of the Klan's philosophy and aligned himself with some traditional conservatives. LOREN CHRISTENSEN, SKINHEAD STREET GANGS 140 (1994). This proved to be short-lived. According to the latest Southern Poverty Law Center's intelligence report, however, the Klan, after several years of decline, is starting to resurge. Two Klan groups experienced significant increases in 1996-97: the Indiana based American Knights of the Ku Klux Klan grew from one chapter to twelve in 1996, and Thom Robb's Knights of the Ku Klux Klan grew from two chapters to 17 in fifteen states. The Year in Hate, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 6 (1998). According to the same report, the Klan, which derives much of its symbolism from Britain (such as the ancient Scottish practice of cross-burning), is now gathering recruits in England and Scotland. The Klan Overseas, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 19 (1998).
74. th century fascist movements, to include Nazism, see JOHN WEISS, THE FASCIST TRADITION 9-30 (1967).
75. DEOMI, supra note 58, at 6.
76. One of his lieutenants, William Pierce, went on to form the National Alliance. Another lieutenant, Matt Koehl, founded the National Socialist White People's Party, renamed as the New Order. Id. at 7-8.
77. Duke ran for a U.S. Senate seat in Louisiana. Although unsuccessful, he received 40% of the popular vote. Three years later, he won a seat in the Louisiana legislature. Id. at 10-11.
78. Id. at 11.
79. Interview with Jerry Anderson, Equal Opportunity Manager, Office of the Secretary of Defense, at The Pentagon, Washington D.C. (Jan. 23, 1998) [hereinafter Anderson Interview].
80. Two famous examples are the assassinations of George Lincoln Rockwell and Malcolm X. George Lincoln Rockwell, the founder of the American Nazi Party, was assassinated by dissident party member John Partler in 1967. Later, two of Rockwell's deputies formed their own splinter groups. On the other end of the ideological spectrum, perhaps most famous is the internecine conflict within the Nation of Islam and its splinter groups. Malcolm X left the Nation in 1965 to pursue a more secularist (and non-racist) form of black nationalism and was assassinated shortly afterwards by Nation of Islam disciples. See DEOMI, supra note 58, at 7, 17-18. Recent examples of violence by organized white supremacists include the crime and murder spree of the hate group called The Order, which based its philosophy on The Turner Diaries. The Order robbed armored cars and killed a state trooper and a popular Denver radio host. Members of The Order were eliminated in a gun battle with FBI agents in Washington State in 1984. Two years later, "Order II" (with only four members) launched a similar crime spree in Idaho. They were all captured and incarcerated. CHRISTENSEN, supra note 65, at 133-34. George and Wilcox contend that hard-core extremists are not temperamentally suited for mainstream politics, which may explain their tendency to look to violent (and ultimately self-destructive) solutions. GEORGE & WILCOX, supra note 30, at 77.
81. RIDGEWAY, supra note 45, at 191.
82. According to Joseph Roy, the Director of Klanwatch, this is Pierce's estimate. Hearing on Extremist Activity in the Military, supra note 38, at 13 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center).
83. " The Internet was one of the major reasons the militia movement expanded faster than any hate group in history." KENNETH S. STERN, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT & THE POLITICS OF HATE 228 (1996), cited in PIPES, supra not 44, at 199. As an example of how much personal, instantaneous dissemination of information can occur on the Internet, in October, 1994, 20,000 electronic messages were instantly sent over a white professor's Internet account spreading white supremacist messages in four states. Camilla Nelson, Hate Crime on the Internet, 7 NAT'L ASS'N OF ATTORNEYS GENERAL: CIVIL RIGHTS UPDATES 1 (Spring 1997).
84. " The Internet was one of the major reasons the militia movement expanded faster than any hate group in history." KENNETH S. STERN, A FORCE UPON THE PLAIN: THE AMERICAN MILITIA MOVEMENT & THE POLITICS OF HATE 228 (1996), cited in PIPES, supra not 44, at 199. As an example of how much personal, instantaneous dissemination of information can occur on the Internet, in October, 1994, 20,000 electronic messages were instantly sent over a white professor's Internet account spreading white supremacist messages in four states. Camilla Nelson, Hate Crime on the Internet, 7 NAT'L ASS'N OF ATTORNEYS GENERAL: CIVIL RIGHTS UPDATES 1 (Spring 1997).
85. Some of the advantages the Internet gives to racial extremists include chat room talk and e-mail communications, which expand racial extremists' sense of community; new encrypton technology, which make Internet transmissions more secure than ever before, marketing ability to sell hate-group items (from Klan robes to Hitler mugs); as well as an abundance of information on how to build bombs, buy weapons, and learn terrorists/subversive tactics. See 163 and Counting, 89 S. POVERTY L. CENTER INTELLIGENCE REPORT 25 (1998).
86. Jerry Anderson has over 200 volumes of extremist information taken solely from the Internet. He also maintains a list of hundreds of extremist websites. Three hundred and forty-three of those websites are devoted primarily to neo-Nazi and/or racist skinhead information. See Interview with Jerry Anderson, supra note 68; see also List Created by Jerry Anderson of Extremist Websites (undated) (on file with author). The Southern Poverty Law Center gave a recent listing of 163 extremist websites. This does not include Holocaust denial sites and militia sites. 163 and Counting, supra note 76, at 24-5.
87. Gordon Witkin, The Nightmare of Idaho's Ruby Ridge, U.S. NEWS & WORLD REP., Sept. 11, 1995, at 42.
88. Hearing on Extremist Activity in the Military, supra note 38, at 13. Much of the post-Murrah Federal Building bombing press coverage that tried to link McVeig, Terry Nichols, and others involved in the bombing to various militia groups turned out to be unfounded. In fact, the FBI's extensive investigation failed to significantly link McVeigh or any of the others involved to any militia group. McVeigh most likely learned about explosives and weapons not from a militia group, but from his Army training. McVeigh entered the Army in 1988. He served as an infantryman, rose to the rank of sergeant, was a gunner on a Bradley Fighting Vehicle, and won a Bronze Star in the Gulf War. GEORGE & WILCOX, supra note 30, at 246-48. 80. See supra pp. 1-2.
89. DEOMI, supra note 58, at 2, 6.
90. Id. at 2.
91. The racist Creativity Movement, "an organization which is dedicated to the dissemination of truth and the pursuit of justice" and headed by Reverend Matt Hale, is openly anti-Christian. In the "FAQ" (frequently asked questions) part of its website, Hale responds to the question: "[Isn't] it part and parcel of your religion to hate the Jews, blacks, and other colored people'?": "[I]f you love and want to defend those whom you love - your own family, your own white race, then hate for your enemies comes natural and is inevitable." And responding to the question about Christianity teaching "love and understanding": The Christian religion is a good case in point when we talk about liars and hypocrites. Whereas they talk about love, the history of the Christian movement shows that they were as vicious and brutal in savagely hunting down their enemies, labeling them as 'heretics' and burning them at the stake, torturing and killing them, as are the Jewish communists of today. See The Creativity Movement (visited Mar. 2, 1998) 〈http://www.rahowa.com〉.
92. DEOMI, supra note 58, at 2; see RIDGEWAY, supra note 45, at 168-69 (showing a map that illustrates where such "relocations" for minorities would take place).
93. In 1996, the Director of Klanwatch testified before Congress that he estimated the numbers of white supremacists at 25,000. Hearing on Extremist Activity in the Military, supra note 38, at 12 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center). The most recent estimate, however, by the Southern Poverty Law Center is much higher. It stated in its most recent report that the number of hate groups grew dramatically in 1997, up 20% to 474 (127 Klan organization, 100 neo-Nazi groups, 42 skinhead groups, 81 Christian Identity groups, 112 a "hodge-podge of hate-based doctrines and ideologies," and 12 black separatist groups). Christian Identity, a particularly violent group, has apocalyptic leanings, and according to the report, it alone has 50,000 followers in North America. See The Year in Hate, supra note 65, at 6.
94. The Southern Poverty Law Center's claims about the strength and ubiquity of white supremacist groups have met with criticism. George and Wilcox dispute their assertions that the Ku Klux Klan and neo-Nazi groups have penetrated the militia groups to any significant degree. GEORGE & WILCOX, supra note 30, at 250. Accusations have been made that watchdog groups such as the Southern Poverty Law Center "need" the Klan and other groups to keep donations coming in. Phillip Finch, Can the Klan Ride Again?, THE NEW REPUBLIC, Sept. 5, 1983, at 18, 20-21.
95. Finch, supra note 86, at 22. There are no accurate counts of the number of skinheads, though some rough numbers exist. Monitoring organizations put their numbers at between 10,000 and 20,000 nationally (as of 1994) with approximately ten times the number in passive supporters, putting the total of passive supporters and active members at 200,000. Id.
96. This is not to say that Ku Klux Klan, Posse Comitatus, and various "race churches" do not have a tremendous influence on the younger, often very impressionable and naive skinheads. In turn, the younger skinhead groups often energize these tired formal organizations. Skinheads will often be more openly confrontational and violent than the Klan, which will in turn educate its young "warriors" with literature and activities. CHRISTENSEN, supra note 65, at 5, 146.
97. Id. at 22.
98. Id. at 45.
99. Id. at 5.
100. Id. at 5, 146. DEOMI, supra note 58, at 8.
101. RIDGEWAY, supra note 45, at 182.
102. Id. It is not difficult to see how Nazi ideas penetrated the skinhead culture. The skinheads originated out of xenophobia and their culture extols a violent, confrontational posture. The tough "street"-look, the shaved head to accentuate one's masculinity, the gang-like mentality, and the constant reference to "working class values" can easily be assimilated into a fascist aesthetic and ideology such as the one promulgated by neo-Nazis. For an examination of the fascist aesthetic and ideology see WALTER BENJAMIN, The Work of Art In An Age of Mechanical Reproduction, in ILLUMINATIONS 217 (Hannah Arendt ed. & Harry Zohn trans., Schocken 1969); SUSAN SONTAG, Fascinating Fascism, in UNDER THE SIGN OF SATURN 73-105 (Vintage Books 1981); FASCISM, AESTHETICS, & CULTURE (Richard J. Golson ed., 1992).
103. Id. It is not difficult to see how Nazi ideas penetrated the skinhead culture. The skinheads originated out of xenophobia and their culture extols a violent, confrontational posture. The tough "street"-look, the shaved head to accentuate one's masculinity, the gang-like mentality, and the constant reference to "working class values" can easily be assimilated into a fascist aesthetic and ideology such as the one promulgated by neo-Nazis. For an examination of the fascist aesthetic and ideology see WALTER BENJAMIN, The Work of Art In An Age of Mechanical Reproduction, in ILLUMINATIONS 217 (Hannah Arendt ed. & Harry Zohn trans., Schocken 1969); SUSAN SONTAG, Fascinating Fascism, in UNDER THE SIGN OF SATURN 73-105 (Vintage Books 1981); FASCISM, AESTHETICS, & CULTURE (Richard J. Golson ed., 1992).
104. Id. It is not difficult to see how Nazi ideas penetrated the skinhead culture. The skinheads originated out of xenophobia and their culture extols a violent, confrontational posture. The tough "street"-look, the shaved head to accentuate one's masculinity, the gang-like mentality, and the constant reference to "working class values" can easily be assimilated into a fascist aesthetic and ideology such as the one promulgated by neo-Nazis. For an examination of the fascist aesthetic and ideology see WALTER BENJAMIN, The Work of Art In An Age of Mechanical Reproduction, in ILLUMINATIONS 217 (Hannah Arendt ed. & Harry Zohn trans., Schocken 1969); SUSAN SONTAG, Fascinating Fascism, in UNDER THE SIGN OF SATURN 73-105 (Vintage Books 1981); FASCISM, AESTHETICS, & CULTURE (Richard J. Golson ed., 1992).
105. Identifying a skinhead usually is not difficult. A publication for police on recognizing signs and symbols of gangs lists the following identification signs: (1) White male, 14-24 years of age; (2) Shaved head, or very short-trimmed hair; (3) Blue or black denim pants, or six pocket fatigues; (4) Black or O.D. green flight jackets; (5) Suspenders (called "braces"); (6) Military style boots, steel toed or "Doc Martens" with either red or white laces; (7) Tattoos or slogans with neo-Nazi or white supremacist markings (for racist skinheads). See MARK S. DUNSTON, STREET SIGNS: AN IDENTIFICATION GUIDE OF SYMBOLS OF CRIME & VIOLENCE 49 (1994). While a shaved head is the most distinguishing characteristic, it is not required. The point of a shaved head is to give the person a menacing look. But as Christensen points out: "[0]n some skins, the absence of hair will make weak eyes appear weaker and a skinny neck scrawnier...." so it is not a definitive indicator one is a skinhead. CHRISTENSEN, supra note 65, at 26.
106. CHRISTENSEN, supra note 65, at 25.
107. This includes the SHARPS (for Skinheads Against Racial Prejudice) who exhibit more of a gang style rivalry with neo-Nazi skinheads. SHARPs made alliances with left-wing and gay rights activist groups on the Pacific Coast in the late 1980s and early 1990s, who welcomed them into their ranks and used them as security for their demonstrations and marches The activists soon concluded, after a SHARP smashed a young girl in the head with a hammer because he thought she was Nazi, that they were a "violent street gang." CHRISTENSEN, supra note 65, at 60.
108. GEORGE & WILCOX, supra note 30, at 347.
109. CHRISTENSEN, supra note 65, at 4, 30. Christensen, a Portland, Oregon police officer was the leader of a skinhead task force (Portland has been called the "Skinhead capital of the United States"). Regarding the fluid nature of the skinheads, he writes: "In rewriting this text, I found I had used a large number of qualifying adjectives, such as most, some, and many, to describe how skinheads think and act. Thinking I had used them too often, I tried to delete many of them, but I could not." Id. at 5.
110. See supra note 72.
111. See supra pp. 16-17.
112. CHRISTENSEN, supra note 65, at 22.
113. The image of white supremacists as "racial warriors" appears often in white supremacist publications. Two widely known acronyms in white supremacy are WAR (White Aryan Resistance, the neo-Nazi group) and RAHOWA (Racial Holy War) which is the rallying cry for the Creativity Movement. JESSE DANIELS, WHITE LIES: RACE, CLASS GENDER, & SEXUALITY IN WHITE SUPREMACIST DISCOURSE 35-37 (1997).
114. At meetings of the Aryan Nations Congress, the famous German marching song of the storm troopers, the "Hors, Wessel Lied," is its anthem. Its lyrics emphasizing both military camaraderie ("The flags high! The ranks tightly closed!") and gruesome anti-Semitism ("When the Jew's blood spurts from the knife!"). RAPHAEL S. EZEKIEL, THE RACIST MIND 38 (1995).
115. McVeigh, up to the point that he failed out of Special Forces training and left the Army in disgust, had been an excellent soldier who made the rank of sergeant in three years GEORGE & WILCOX, supra note 30, at 248.
116. CRIMINAL INVESTIGATION COMMAND (CID), 1995 CID SUMMARY REPORT, EXTREMIST ACTIVITIES 3 (2 Sept. 1996) [hereinafter 1995 CID SUMMARY REPORT]. The Army Equal Opportunity Office reported only one incident of racial violence within the preceding four years, involving a black soldier at Fort Richardson, Alaska who was racially harassed by a white superior and subject to a mock lynching. Information Paper on Incidents of Racial Violence by Mr. Jerry Anderson, Equal Opportunity Manager, Office of the Secretary of Defenses (8 Dec. 1995) (on file with author) [hereinafter Information Paper on Incidens of Racial Violence].
117. 1995 CID SUMMARY REPORT, supra note 106, at 3. During this time, Department of the Army Equal Opportunity Offices did not routinely receive Army serious incident reporting system (SIRS) documents, which are under the control of military police. This may have caused an underreporting of racial incidents. Information Paper on Incidents of Racial Violence, supra note 106. Nationwide in 1995, 7947 hate crime incidents were reported to the FBI to include 20 murders and 1268 aggravated assaults. Fifty-nine percent of the offenders reported were white, 27% black, with the remaining offenders from other or multi-ethnic groups. 1995 FBI CRIMINAL INFORMATION SERVICES DIVISION HATE CRIME REPORT 1 (on file with author).
118. 1995 CID SUMMARY REPORT, supra note 106, at 3. During this time, Department of the Army Equal Opportunity Offices did not routinely receive Army serious incident reporting system (SIRS) documents, which are under the control of military police. This may have caused an underreporting of racial incidents. Information Paper on Incidents of Racial Violence, supra note 106. Nationwide in 1995, 7947 hate crime incidents were reported to the FBI to include 20 murders and 1268 aggravated assaults. Fifty-nine percent of the offenders reported were white, 27% black, with the remaining offenders from other or multi-ethnic groups. 1995 FBI CRIMINAL INFORMATION SERVICES DIVISION HATE CRIME REPORT 1 (on file with author).
119. 1995 CID SUMMARY REPORT, supra note 106, at 3. The four identified incidents were: (1) spraying of racial graffiti on the wall of a male latrine in an enlisted club (Fort Irwin); (2) two members of rival gangs fighting over a gang bandana (Fort Stewart); 3 a simple assault and aggravated assault that were racially motivated (Fort Hood); and (4) a stabbing in the face and chest by a subject who was motivated by the victim's race and national origin (Grafenwoehr, Germany). Id.
120. Anderson Interview, supra note 71. Mr. Anderson recalled that individuals had been rejected for service because of possible extremist connections. He also specifically remembers that most of those were from the Navy.
121. Id. Mr. Anderson said that there was a decline in racial violence throughout the 1980s.
122. The weapons included 13 LAW rockets, 10 claymore mines, and nearly 200 pounds of C-4 explosives. Hearing on Extremist Activity in the Military, supra note 38, at 15 (statement of Joseph T. Roy, Sr., Director of Klanwatch, Southern Poverty Law Center).
123. Id.
124. See Richard Serrano, Radicals Recruit Soldiers, FAYETTEVILLE OBSERVER-TIMES, Dec. 17, 1995, at 1A. The Secretary of Defense issued a memorandum to the secretaries of the military departments in the wake of the Oklahoma City bombing. The memorandum reiterated DOD Directive 1325.6 on dissident and protest activities. It asked the service secretaries to "direct commanders and supervisors to disseminate this memorandum throughout their organizations and to ensure that their personnel are briefed on this guidance in this memorandum, DOD Directive 1325.6 and Service implementing documents." Memorandum from Secretary of Defense to Secretaries of Army, Navy, and Air Force, subject: Dissident and Protest Activity (5 May 1995). The language of the memorandum shows the apparent disconnection between the policy and what actually happened at Oklahoma City. McVeigh, a loner, had vague ties to extremist groups, but was not a card-carrying member of any organization; whereas the focus of the Directive was on "dissident and protest" organizations and "active participation" in such groups. While the service secretaries did issue the memoranda to their services, this amounted to practically no more than publishing a memorandum. The Secretary of the Army's task force on extremism states in its report: "Few soldiers or leaders below brigade-level recalled such briefings [on DOD Directive 1325.6]." THE SECRETARY OF THE ARMY'S TASK FORCE ON EXTREMIST ACTIVITIES: DEFENDING AMERICAN VALUES 17 (21 Mar. 1996) [hereinafter TASK FORCE REPORT].
125. See Richard Serrano, Radicals Recruit Soldiers, FAYETTEVILLE OBSERVER-TIMES, Dec. 17, 1995, at 1A. The Secretary of Defense issued a memorandum to the secretaries of the military departments in the wake of the Oklahoma City bombing. The memorandum reiterated DOD Directive 1325.6 on dissident and protest activities. It asked the service secretaries to "direct commanders and supervisors to disseminate this memorandum throughout their organizations and to ensure that their personnel are briefed on this guidance in this memorandum, DOD Directive 1325.6 and Service implementing documents." Memorandum from Secretary of Defense to Secretaries of Army, Navy, and Air Force, subject: Dissident and Protest Activity (5 May 1995). The language of the memorandum shows the apparent disconnection between the policy and what actually happened at Oklahoma City. McVeigh, a loner, had vague ties to extremist groups, but was not a card-carrying member of any organization; whereas the focus of the Directive was on "dissident and protest" organizations and "active participation" in such groups. While the service secretaries did issue the memoranda to their services, this amounted to practically no more than publishing a memorandum. The Secretary of the Army's task force on extremism states in its report: "Few soldiers or leaders below brigade-level recalled such briefings [on DOD Directive 1325.6]." THE SECRETARY OF THE ARMY'S TASK FORCE ON EXTREMIST ACTIVITIES: DEFENDING AMERICAN VALUES 17 (21 Mar. 1996) [hereinafter TASK FORCE REPORT].
126. Information Paper on Equal Opportunity Complaint Reports, by Captain John Trippon, Equal Opportunity Officer, 82d Airborne Division 1 (30 Oct. 1995) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
127. Scott Mooneyham, Shooting Spotlighted Skinheads Suspected of Extremism, FAYETTEVILLE OBSERVER-TIMES, Feb. 24, 1996, at 1A.
128. Id.
129. Id.
130. Information Paper on Violent Incidents in Fort Bragg/Fayetteville N.C., Fort Bragg Criminal Investigation Command 2 (14 Dec. 1995) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division). See also Information Paper on White Supremacists Groups on Fort Bragg, Fort Bragg Criminal Investigation Command (12 Dec. 1995) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
131. Information Paper on Violent Incidents in Fort Bragg/Fayetteville N.C., Fort Bragg Criminal Investigation Command 2 (14 Dec. 1995) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division). See also Information Paper on White Supremacists Groups on Fort Bragg, Fort Bragg Criminal Investigation Command (12 Dec. 1995) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
132. Id.
133. Information Paper on Background, supra note 8.
134. Id.
135. Id.
136. Id.
137. The connection of soldiers to the Chapel Hill incidents was never firmly established. Fort Bragg CID reported that Fort Bragg soldiers were involved in the Chapel Hill incidents only as witnesses. See Ronald L. Simpson, Fort Bragg Criminal Investigation Report No. 1282-95-CID023 3 (23 Dec. 1995) (on file with author and Fort Bragg Criminal Investigation Command) [hereinafter CID Report].
138. Information Paper on Background, supra note 8. Specialist Randy Meadows, also accused of the December murders, had no documented history of racist of extremist beliefs. In October 1995, PFC Malcolm Wright's commander counseled him for wearing the number '666' on his forehead, but he denied being involved in any extremist groups. He also reportedly had a spiderweb tattoo on his elbow, but its meaning was unknown at the time. Id.
139. Lieutenant General John Keane, XVIII Airborne Corps Commander, was quoted as saying: "We missed the signals, the signs . . . some of which were so blatant that action should have been taken. Some leaders did, some did not." Amy Clarkson, Generals Address Racism Issues at Fort Bragg, RALEIGH POST, Mar. 27, 1996, at A1. In its assessment, the task force found that before the murders of Jackie Burden and Michael James there were few strong indicators that extremist organizations were "at issue at Fort Bragg. Subsequently, extremism received only passing attention in equal opportunity training." TASK FORCE REPORT, supra note 113, at 33.
140. See Man Convicted of Racial Killings, WASHINGTON POST, Feb. 27, 1997, available at 〈http://www.washintonpost.com〉 (visited 1 Mar. 1998). Specialist Meadows also received a life sentence at a later trial. Second E-Paratrooper Gets Life in North Carolina Racial Killings, N.Y. TIMES, May 13, 1997, at A17. Private First Class Wright, who testified against both and averred that he had no prior knowledge that the two had planned to commit the murders, was convicted and sentenced to time served. Id. 128. See Memorandum on Actions Taken, supra note 16.
141. See Man Convicted of Racial Killings, WASHINGTON POST, Feb. 27, 1997, available at 〈http://www.washintonpost.com〉 (visited 1 Mar. 1998). Specialist Meadows also received a life sentence at a later trial. Second E-Paratrooper Gets Life in North Carolina Racial Killings, N.Y. TIMES, May 13, 1997, at A17. Private First Class Wright, who testified against both and averred that he had no prior knowledge that the two had planned to commit the murders, was convicted and sentenced to time served. Id. 128. See Memorandum on Actions Taken, supra note 16.
142. CID Report, supra note 124.
143. Information Paper, subject: Status of Investigation and Administrative and/or UCMJ Actions Taken Regarding 82d Airborne Soldiers Identified as "Skinheads," CPT Walter M. Hudson, Office of the Staff Judge Advocate, 82d Airborne Division (29 Jan. 1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
144. Id.
145. Press release 512-014 from Public Affairs Office, 82d Airborne Division (22 Dec. 1995) (on file with author and at Public Affairs Office, 82d Airborne Division).
146. CID Report, supra note 124.
147. Information Paper on Fort Bragg Skinhead Investigation, Lieutenant Colonel Robert McFetridge, Staff Judge Advocate, 82d Airborne Division (19 Mar. 1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division). In April 1996, every soldier in the 82d Airborne Division was examined for racist or gang-related tattoos, per order of the Commanding General. Four more soldiers were identified as possible racist skinheads because of those inspections. Information Paper on 82d Airborne Division's Tattoo Inspection Results, Lieutenant Colonel Robert McFetridge, Staff Judge Advocate, 82d Airborne Division (2 May 1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division) [hereinafter Information Paper on Tattoo Inspects Results].
148. Information Paper on Tattoo Inspection Results, supra note 134.
149. TASK FORCE REPORT, supra note 113, at I, 5-7.
150. Id.
151. Id.
152. Id.
153. In the spring of 1997, the Army Research Institute conducted its biannual sample survey of military personnel (SSMP). For the first time questions were asked about soldiers' knowledge of extremist activity in the Army. The SSMP asked the same survey questions (no interviews were conducted) as the task force survey: 2% of the soldiers surveyed stated they had been approached to join an extremist organization since joining or working for the Army (3.6% in the task force survey); 4.8% said they knew someone well in the Army who believed to be members of extremist organizations (7.1% in the task force survey); 12.9% stated that they had come in contact with extremist material such as pamphlets, recruiting posters, graffiti, or electronic mail messages (17.1% in the task force survey). No reasons were posited for the lower percentages in the follow up survey. Interview with Lieutentant Colonel David Hoopengardner, Office of the Deputy Chief of Staff, Personnel, U.S. Army, at The Pentagon, Washington D.C. (Jan. 23, 1998).
154. Id. The task force report stated: The written survey was not as precise in determining the exact extent of possible extremist activity as face-to-face interviews. Interviewers found that, while some organizations were unanimously viewed as extremist, there were considerable differences of opinion on many others, including ethnic and racial groups, whose ideas may be controversial. Live interviewers were better able to distinguish more generally accepted instances of extremism and to determine when one identified instance of extremism was referred to by multiple soldiers (i.e. double counted). Daily interviewer wrap-up sessions clearly showed that activities of a few individuals were repeatedly cited in different interview groups. In contrast, the survey instrument did not provide for this level of refinement. Id. at 7.
155. Id. The follow-up survey used the same method. See supra note 140 and pp. 28-29.
156. After talking extensively to soldiers and commanders, the task force on extremism stated: "Although there were relatively few extremists identified in the Army, leaders recognize that even a few extremists can have a pronounced dysfunctional impact on the Army's bond with the American people, institutional values, and unit cohesion." TASK FORCE REPORT, supra note 113, at 29.
157. SCRUTON, supra note 29 and pp. 7-8.
158. See supra pp. 1-2 and notes 47, 50, and 79.
159. As of 1995, when the Fayetteville murders took place, the Army was 62.2% white, 27.2% black, 5.1% Hispanic, with 5.4% listed as other minorities. Information Paper on Infantry Brigade Demographics, Major John Trippon, Equal Opportunity Officer, 82d Airborne Division (17 Dec. 1995) (on file with author and at Equal Opportunity Office, 82d Airborne Division).
160. U.S. DEP'T OF ARMY, REG. 600-20, ARMY COMMAND POLICY, para. 4-12 (30 Mar. 1988) [hereinafter AR 600-20, para. 4-12 (old policy)].
161. Id. While all the services came out with extremist policies, the Army was the only service that listed "prohibited activities." Anderson Interview, supra note 71.
162. AR 600-20, para. 4-12 (old policy), supra note 147, para. 4-12a.(1), (2), (3).
163. Id. para. 4-12c.(7).
164. U.S. DEP'T OF DEFENSE, DIR. 1325.6, GUIDELINES FOR HANDLING DISSIDENT & PROTEST ACTIVITIES AMONG MEMBERS OF THE ARMED FORCES (12 Sept. 1969) (change 2, 8 Sept. 1986) [hereinafter DOD DIR. 1325.6 (1986 change)].
165. See supra note 53.
166. DOD DIR. 1325.6 (1986 change), para. III.C., D., E.
167. Paragraph III.G. of the directive states: Prohibited activities. Military personnel must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights. Active participation, such as publicly demonstrating or rallying, fund raising, recruiting and training members, organizing or leading such organizations or other wise engaging in activities in relation to such organizations or in furtherance of the objectives that are viewed by command to be detrimental to the good order, discipline, or mission accomplishment of the unit, is incompatible with Military service, and is therefore, prohibited. Commanders have authority to employ the full range of administrative procedures, including separation or appropriate disciplinary action against military personnel who actively participate in such groups. Id. para. III.G.
168. Exec. Order No. 11,785, 3 C.F.R. 874 (1971-1975) reprinted in 1974 U.S.C.C.A.N. 8277.
169. For a summary of some executive and congressional actions against communist subversion during the late 1940s and early 1950s, and the courts' responses to those actions, see Alan I. Bigel, The First Amendment and National Security: The Court Responds to Governmental Harassment of Alleged Communist Sympathizers, 19 OHIO N.U. L. REV. 885 (1993)
170. Exec. Order No. 10,450, § 8(a), 3 C.F.R. 936 (1949-1953) reprinted in 1953 U.S.C.C.A.N. 1007. Executive Order 10,450 required loyalty investigations of all governmental departments. Any federal employee could be dismissed if an agency department head determined that the employee's continued employment was not in the national interest. Id.
171. Id. § 8(a)(5).
172. Exec. Order No. 11,785, supra note 155. Executive Order 11,785 was a further dismantling of EO 10,450 begun by EO 11,605, published in 1971. It required the old Subversive Activities Control Board to make specific findings whether an organization was "totalitarian Fascist, Communist, or subversive" rather than relying on a list. It was revoked by EO 11,785. See Exec. Order No. 11,605, 3 C.F.R. 580 (1971-1975) reprinted in 1971 U.S.C.C.A.N. 2560.
173. Exec. Order No. 11,785, supra note 155, § 3 (emphasis added).
174. TASK FORCE REPORT, supra note 113, at 17. ("The first time the terms knowing membership and active participation were used to determine policies toward individual involved in extremist organizations was in Executive Order 11,785, published in 1974.")
175. At a teleconference following the shootings, the topic of what constituted an extremist "organization" was much debated. Forces Command Staff Judge Advocate Teleconference on Extremism (teleconference broadcast, Dec. 18, 1995).
176. Virginia White, Swastikas, 'Skinheads' Part of Suspect's Life, Soldiers Say, FAYETTEVILLE OBSERVER-TIMES, Dec. 10, 1995, at 1A.
177. AR 600-20, para. 4-12 (old policy), supra note 147, para. 4-12b.
178. Id.
179. Commanders could thus take action, either judicially or non-judicially, against soldiers for violating certain articles of the UCMJ, to include: Article 92, failure to obey an order or regulation or general order (for example, participation in non-approved on-post meetings or demonstrations, or distribution of literature without approval); Article 116, riot or breach of peace; Article 117, provoking words or gestures; or Article 134, conduct which is disorderly or service discrediting (the "general" article). AR 600-20, para. 4-12 (old policy), supra note 147, para. 4-12d.(5)(a), (b), (c), & (d).
180. CID Report, supra note 124.
181. Memorandum from Captain Walter Hudson, Office of the Staff Judge Advocate, 82d Airborne Division, to Commanding General, 82d Airborne Division, subject: Summary of Possible UCMJ/Administrative Actions Against 82d Airborne Soldiers Identified as Skinheads (4 Jan. 1996) (on file with author and at Office of the Staff Judge Advocate, 82d Airborne Division).
182. Id.
183. Id.
184. Id.
185. Id.
186. TASK FORCE REPORT, supra note 113, at 34.
187. Id. at 11.
188. Id. at 34.
189. Id. at 37.
190. The extremist policy in DOD Directive 1325.6 was subsequently changed as well. The new policy reads: Prohibited activities. Military personnel must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights. Active participation, such as publicly demonstrating or rallying, fund raising, recruiting and training members, organizing or leading such organizations or other wise engaging in activities in relation to such organizations or in furtherance of the objectives that are viewed by command to be detrimental to the good order, discipline, or mission accomplishment of the unit, is incompatible with Military service, and is therefore, prohibited. Commanders have authority to employ the full range of administrative procedures, including separation or appropriate disciplinary action against military personnel who actively participate in such groups. Functions of command include vigilance about the existence of such activities; active use of investigative authority to include a prompt and fair complaint process; and use of administrative powers, such as counseling, reprimands, orders, and performance evaluations to deter such activities. Military Departments shall ensure that this policy on prohibited activities is included in initial active duty training, pre-commissioning training, professional military education, commander training, and other appropriate service training programs. U.S. DEP'T OF DEFENSE, DIR. 1325.6, GUIDELINES FOR HANDLING DISSIDENT & PROTEST ACTIVITIES AMONG MEMBERS OF THE ARMED FORCES, para. C.5.h (1 Oct. 1996). Note the DOD directive retains the definitions focusing on organizations used in the older directive, as well as "active participation." The new language in the directive starts at the sentence beginning "[f]unctions of command . . . ."
191. Beginning in subparagraph d., it states: "Commanders should take positive actions when soldiers in their units are identified as members of extremist groups and/or when they engage in extremist group activities." AR 600-20, para. 4-12 (old policy), supra note 147, para. 4-12d.
192. AR 600-20 para. 4-12 (new policy), supra note 33, para. 4-12C.2.
193. Id. para. 4-12C.2.C.
194. Id. The Secretary of the Army reiterated this mandate in relation to the First Amendment in a news briefing following the release of the task force investigation: And incidentally, if they see a swastika or something hanging on a wall, [in reference to] the bright line test you wanted [from] me, I saw today in an article where a law professor said, ["W]ell, the Army doesn't have the authority to take banners off the wall. They'll have to take them all off except for Old Glory or leave them [all] up. ["] That's not the Army's view. That is not the Secretary of the Army's direction. If a commander or NCO sees on the wall of any government building, an item, an object, a display, that is calculated to disrupt the good order, discipline, moral cohesiveness, ability to operate as a unit of that unit, he or she has all the authority necessary to take it down and to discipline the soldier who sponsors it. Dep't of Defense News Briefing, Subject: Findings & Recommendations On the Task Force on Extremist Activities, Defending America's Values 9 (21 Mar. 1996).
195. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.D. Various subparagraphs in the new policy (in ALARACT message format) are all in upper case. To avoid confusion, they are cited as they appear in that text.
196. Id.
197. Id. para. 4-12C.2.E (emphasis added).
198. White V. para. 4-12C.2.E.(3) (emphasis added).
199. Id. para. 4-12C.2.B (emphasis added).
200. See supra note 141 and p. 29.
201. AR 600-20, para. 4-12 (old policy), supra note 147, 4-12a.
202. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.B. The other definitions for extremist activities or organizations are: Extremist organizations and activities are ones that . . . advocate the use of or use force or violence or unlawful means to deprive individuals of their rights under the United States Constitution or the laws of the United States, or any state, by unlawful means. Id. The substance of these definitions is the same as in the old definitions.
203. It states: "Violations of the prohibitions contained in this paragraph or those established by a commander may result in prosecution under various provisions of the [UCMJ]." Id. para. 4-12C.2
204. See supra pp. 33-4.
205. AR 600-20, para. 4-12 (old policy), supra note 147, para. 4-12b.
206. AR 600-20. para. 4-12 (new policy), supra note 33, para. 4-12C.2.E.
207. Id. para. 4-12C.2.E.(1) & (2).
208. Secretary West stated: We have attempted to avoid the confusion between merely passive and merely active, [sic] however, by saying that if you prepare to take punitive action, it must be based on action, based on conduct. That is consistent with the position we have taken in a number of similar situations across the Department. . . . . When I say that membership is not without its disadvantages, the Army regulation will continue to point out that membership itself is, in the Army's view, not to be encouraged. That can be taken into account when considering things like promotion or assignments. That's different from when you take it into account for purposes of punishment or separation. That depends on conduct. That will be the way the AR, as it is currently drafted, is focused. We think it's a lot clearer and commanders shouldn't be trying to decide between what's active and what's passive. The question is their conduct. If it contributes to the disruption of the morale and discipline of the unit, the commander acts. Hearing on Extremist Activity in the Military, supra note 38, at 168 (statement of Secretary of the Army Togo West). When further questioned whether membership was per se prohibited, he stated: "[A]s it exists in draft now, there is not a position that says that membership is directly punishable." Id. at 169.
209. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.C.
210. Likewise, and in keeping with the apparent intent of the regulation's change, the soldier who simply acknowledges his beliefs when asked by his chain-of-command, but takes no actions as a result of them (e.g., displays no posters or paraphernalia, attends no meetings, and disseminates no propaganda) should be considered in the same category as a soldier who is a "mere" member. Thus, a commander can take the same "administrative" actions regarding the soldier (education, counseling, and consideration in making duty evaluations and promotions), but no sanction-type action. See supra pp. 39-40 and note 195. Whether a commander can legitimately ask such a question must be examined in light of the standard of legal orders. See infra pp. 72-3.
211. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.F.
212. The major cases in the past 25 years involving the military and the First Amendment are: Goldman v. Weinberger, 475 U.S. 503 (1986) (upholding an Air Force regulation that prohibited the plaintiff from wearing a yarmulke); Brown v. Glines, 444 U.S. 348 (1980) (upholding an Air Force regulation that controlled the circulation of petitions on an air base); Greer v. Spock, 424 U.S. 828 (1976) (upholding a local Army regulation that banned on-post political speeches and demonstrations without prior approval); Secretary of the Navy v. Amrech, 418 U.S. 676 (1974) (ruling that Article 134 of the UCMJ, which prohibits conduct prejudicial to the good order and discipline of the armed forces, is not unconstitutionally vague); Parker v. Levy, 417 U.S. 733 (1974) (ruling that Article 133, which prohibits conduct unbecoming an officer and a gentleman, as well as Article 134, are neither vague nor overbroad). Other important military cases involving challenges to military policies, though not involving the First Amendment, are: Chappell v. Wallace, 462 U.S. 296 (1983) (ruling that enlisted military personnel may not sue superior officers for alleged constitutional violations); Rostker v. Goldberg, 453 U.S. 57 (1981) (upholding all-male selective service legislation); Middendorf v. Henry, 425 U.S. 25 (1976) (ruling that that a summary court-martial is not a "criminal prosecution" within the meaning of the Sixth Amendment).
213. 417 U.S. 733 (1974).
214. "Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs." Id. at 756. That standard, announced in a previous Supreme Court case, is that as long as an economic entity knew or should have known its actions violated an economic statute, the statute is not unconstitutionally vague. See United States v. National Dairy Products Corp., 372 U.S. 29, 32-34 (1963).
215. 444 U.S. 348 (1980).
216. "These regulations, like the Army regulation in the Spock case, protect a substantial Government interest unrelated to the suppression of free expression. Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest." Id. at 354. 204. 475 U.S. 503 (1986).
217. "The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission . . . . The desirability of dress regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon their considered professional judgment." Id. at 509.
218. In Brown v. Glines, upholding an Air Force regulation that related to the circulaton of petitions on air bases, Justice Powell wrote: "Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized tha the military must possess substantial discretion over its internal discipline." Brown, 444 U.S. at 356. In Goldman v. Weinberger, upholding an Air Force regulation that prohibited the plaintiff from wearing a yarmulke, Justice Rehnquist stated: Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society . . . The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank. The Air Force considers them as vital during peacetime as during war because its personnel must be ready to provide an effective defense on a moment's notice; the necessary habits of discipline and unity must be developed in advance of trouble. Goldman, 475 U.S. at 507-8.
219. In Parker v. Levy, Justice Rehnquist wrote: "For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter." Parker, 417 U.S. at 756. In Rostker v. Goldberg, upholding the all-male selective service provision, the Court deferred to Congress. "Whenever called upon to judge the constitutionality of an Act of Congress . . . the Court accords great weight to the decisions of Congress." Rostker, 453 U.S. at 64 (citing Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94 (1973)). The Court went on to say: "This is not, however, merely a case involving the customary deference accorded congressional decision. The case arises in the context of Congress' authority over national defense and military affairs, and perhaps in no other area has the Court accorded Congress greater deference." Id.
220. "The rights of military men must yield somewhat to meet certain overriding demands of discipline and duty . . . .'" Parker, 417 U.S. at 744 (quoting Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion)).
221. Shortly after the UCMJ was promulgated and the military court system was formalized, the Supreme Court asserted that the Bill of Rights should apply to military personnel. Burns, 346 U.S. at 137 (military actions subject to habeas corpus review).
222. "The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps." Goldman, 475 U.S. at 506.
223. In cases that involve discrete personnel matters with little long range ramifications for the military, the Court has generally subjected those actions to some form of scrutiny. In cases that involve significant constitutional challenges to regulations themselves that might affect a military function, the Court has allowed far more deference. See John Nelson Ohweiler, Note, The Principle of Deference: Facial Constitutional Challenges to Military Regulations, 10 J.L. & POL. 147, 166-7(1993). In Frontiero v. Richardson, 411 U.S. 677 (1973), for example, the Supreme Court invalidated an administratively convenient policy in which male members of the military could automatically claim wives as dependents before being allowed dependent status, while female members had to produce evidence of husband's dependence before being allowed such status.
224. The most widely used standard is the so-called Mindes test. See Mindes v. Seamen, 453 F.2d 197 (5th Cir. 1971). For the Mindes test to apply, the plaintiff must first meet a threshold requirement: the court will not review a claim unless there is an abridged constitutional right and the claimant has exhausted his administrative remedies. If this threshold is met, then the court uses a four-part balancing test to determine if the claim is reviewable. The court balances: (1) the nature and strength of the plaintiff's challenge; (2) the potential injury to the plaintiff if the challenge is denied; (3) the type and degree of anticipated interference to the military if the challenge is upheld or allowed; and (4) the extent to which exercise of military expertise or discretion is involved. Id. at 201.
225. Some of the academic literature attacking this proposition includes: Stephanie A. Levin, The Deference That is Not Due: Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009 (1987) (arguing, among other points, that the deference the judiciary gives to the military is not rooted in Constitutional history: rather the Founders expressed great distrust toward the military's potential power and influence); C. Thomas Dienes, When the First Amendment is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779 (1986) (arguing that the excessive judicial deference to the military reveals "a tendency to seek to solve problem cases by adopting conceptualistic, categorical, formalistic approaches which fail to identify and assess the competing interests actually at stake in particular factual contexts"); Edward Zillman & Edward Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 397 (1976) (a post-Vietnam critique of the military as unfettered in its dispensing of constitutional rights of service members and as isolated from civilian society, therefore requiring greater judicial scrutiny of its policies). For the most sustained defense of the principle of deference, see James M. Hirschorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. REV. 177 (1984).
226. Some of the academic literature attacking this proposition includes: Stephanie A. Levin, The Deference That is Not Due: Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009 (1987) (arguing, among other points, that the deference the judiciary gives to the military is not rooted in Constitutional history: rather the Founders expressed great distrust toward the military's potential power and influence); C. Thomas Dienes, When the First Amendment is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779 (1986) (arguing that the excessive judicial deference to the military reveals "a tendency to seek to solve problem cases by adopting conceptualistic, categorical, formalistic approaches which fail to identify and assess the competing interests actually at stake in particular factual contexts"); Edward Zillman & Edward Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 397 (1976) (a post-Vietnam critique of the military as unfettered in its dispensing of constitutional rights of service members and as isolated from civilian society, therefore requiring greater judicial scrutiny of its policies). For the most sustained defense of the principle of deference, see James M. Hirschorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. REV. 177 (1984).
227. Some of the academic literature attacking this proposition includes: Stephanie A. Levin, The Deference That is Not Due: Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009 (1987) (arguing, among other points, that the deference the judiciary gives to the military is not rooted in Constitutional history: rather the Founders expressed great distrust toward the military's potential power and influence); C. Thomas Dienes, When the First Amendment is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779 (1986) (arguing that the excessive judicial deference to the military reveals "a tendency to seek to solve problem cases by adopting conceptualistic, categorical, formalistic approaches which fail to identify and assess the competing interests actually at stake in particular factual contexts"); Edward Zillman & Edward Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 397 (1976) (a post-Vietnam critique of the military as unfettered in its dispensing of constitutional rights of service members and as isolated from civilian society, therefore requiring greater judicial scrutiny of its policies). For the most sustained defense of the principle of deference, see James M. Hirschorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. REV. 177 (1984).
228. Some of the academic literature attacking this proposition includes: Stephanie A. Levin, The Deference That is Not Due: Rethinking the Jurisprudence of Judicial Deference to the Military, 35 VILL. L. REV. 1009 (1987) (arguing, among other points, that the deference the judiciary gives to the military is not rooted in Constitutional history: rather the Founders expressed great distrust toward the military's potential power and influence); C. Thomas Dienes, When the First Amendment is Not Preferred: The Military and Other "Special Contexts," 56 U. CIN. L. REV. 779 (1986) (arguing that the excessive judicial deference to the military reveals "a tendency to seek to solve problem cases by adopting conceptualistic, categorical, formalistic approaches which fail to identify and assess the competing interests actually at stake in particular factual contexts"); Edward Zillman & Edward Imwinkelried, Constitutional Rights and Military Necessity: Reflections on the Society Apart, 51 NOTRE DAME L. REV. 397 (1976) (a post-Vietnam critique of the military as unfettered in its dispensing of constitutional rights of service members and as isolated from civilian society, therefore requiring greater judicial scrutiny of its policies). For the most sustained defense of the principle of deference, see James M. Hirschorn, The Separate Community: Military Uniqueness and Servicemen's Constitutional Rights, 62 N.C. L. REV. 177 (1984).
229. See Zillman & Imwinkelried, supra note 213, at 397.
230. See Richard W. Aldrich, Comment, Article 88 of the UCMJ: A Military Muzzle or Just a Restraint on Military Muscle?, 33 UCLA L. REV. 1189, 1195 (1988). The author argues that not allowing military officers to criticize government officials cuts off criticism of policies by those most familiar with the process. "It seems that a self-governing society is notably hampered if it muzzles the sector of society that is most intimate with the details of such important national concerns [as national defense]." Id.
231. Brennan states in a dissent in Goldman: Today the Court eschews its constitutionally mandated role. It adopts for review of military decisions affecting First Amendment rights a subrational standard . . . . If a branch of the military declares one of its rules sufficiently important to outweigh a service person's constitutional rights, it seems that the Court will accept that conclusion, no matter how absurd or unsupported it may be. Goldman, 475 U.S. at 515 (Brennan, J., dissenting). See Brennans's dissent in Greer v. Spock: "The Court gives no consideration to whether it is actually necessary to exclude all unapproved public expression from a military installation under all circumstances and, more particularly, whether exclusion is required of the expression involved here. It requires no careful composition of the interests at stake." Greer, 424 U.S. at 855 (Brennan, J., dissenting).
232. These two bases for the notion of deference are taken, to some extent, from Hirschorn, supra note 213. Hirschorn justifies the "separate community" doctrine on four grounds: (1) the distinct subculture of the armed forces which subordinates the individual; (2) the existence of this subculture indicates that it serves the armed forces' internally and society as a whole; (3) the judiciary's distrust of its ability to reconcile individual rights with the armed forces' functioning; and (4) the unique nature of the armed force-to fight wars. Id. at 201-2. In this article, 1, 2, and 4 of these rationales are all subsumed under the "separate community" doctrine. Rationale 3 is distinguished from the idea of the military as a separate community and a corollary of the idea of separation of powers. See infra pp. 48-50. Hirschorn also separately discusses the idea of separation of powers. Hirschorn, supra note 213, at 210-212. Some revisionists have begun to question the viability of rationale 4 in other contexts by some revisionists, given the military's newer "peacekeeping" type missions in the post-Cold War era. See, e.g., MARTIN VAN CREWELD, THE TRANSFORMATION OF WAR (1991); Edward Luttwak, Toward Post-Heroic Warfare, 74 FOREIGN AFFAIRS (May/June 1995) at 109-22. "Revisions of the revision," however, have already appeared as well. See, e.g., PHILLIPPE DELMAS, THE ROSY FUTURE OF WAR (1997).
233. These two bases for the notion of deference are taken, to some extent, from Hirschorn, supra note 213. Hirschorn justifies the "separate community" doctrine on four grounds: (1) the distinct subculture of the armed forces which subordinates the individual; (2) the existence of this subculture indicates that it serves the armed forces' internally and society as a whole; (3) the judiciary's distrust of its ability to reconcile individual rights with the armed forces' functioning; and (4) the unique nature of the armed force-to fight wars. Id. at 201-2. In this article, 1, 2, and 4 of these rationales are all subsumed under the "separate community" doctrine. Rationale 3 is distinguished from the idea of the military as a separate community and a corollary of the idea of separation of powers. See infra pp. 48-50. Hirschorn also separately discusses the idea of separation of powers. Hirschorn, supra note 213, at 210-212. Some revisionists have begun to question the viability of rationale 4 in other contexts by some revisionists, given the military's newer "peacekeeping" type missions in the post-Cold War era. See, e.g., MARTIN VAN CREWELD, THE TRANSFORMATION OF WAR (1991); Edward Luttwak, Toward Post-Heroic Warfare, 74 FOREIGN AFFAIRS (May/June 1995) at 109-22. "Revisions of the revision," however, have already appeared as well. See, e.g., PHILLIPPE DELMAS, THE ROSY FUTURE OF WAR (1997).
234. These two bases for the notion of deference are taken, to some extent, from Hirschorn, supra note 213. Hirschorn justifies the "separate community" doctrine on four grounds: (1) the distinct subculture of the armed forces which subordinates the individual; (2) the existence of this subculture indicates that it serves the armed forces' internally and society as a whole; (3) the judiciary's distrust of its ability to reconcile individual rights with the armed forces' functioning; and (4) the unique nature of the armed force-to fight wars. Id. at 201-2. In this article, 1, 2, and 4 of these rationales are all subsumed under the "separate community" doctrine. Rationale 3 is distinguished from the idea of the military as a separate community and a corollary of the idea of separation of powers. See infra pp. 48-50. Hirschorn also separately discusses the idea of separation of powers. Hirschorn, supra note 213, at 210-212. Some revisionists have begun to question the viability of rationale 4 in other contexts by some revisionists, given the military's newer "peacekeeping" type missions in the post-Cold War era. See, e.g., MARTIN VAN CREWELD, THE TRANSFORMATION OF WAR (1991); Edward Luttwak, Toward Post-Heroic Warfare, 74 FOREIGN AFFAIRS (May/June 1995) at 109-22. "Revisions of the revision," however, have already appeared as well. See, e.g., PHILLIPPE DELMAS, THE ROSY FUTURE OF WAR (1997).
235. While separation of powers is often defined as a doctrine through which one branch of government prevents another from imposing its unchecked will, that actually defines the related concept of checks and balances. Furthermore, separation of powers is often thought of as an "inefficient" concept. However, in the case of discussion here, this article intends to show that efficiency is the basis for separation of powers among branches of the government as to which controls the military. See also Hirschorn, supra note 213, at 210-12.
236. See Goldman, 475 U.S. at 507-8; Rostker, 453 U.S. at 64-5; Chappell, 462 U.S. at 301.
237. U.S. CONST, art. I, § 8, cls. 11-16.
238. Id. art. II, § 2, cl. 1.
239. Hirschorn, supra note 213, at 210 (referencing explicit authority only).
240. Id. at 217-8.
241. th Cir. 1996).
242. Id. at 925.
243. th Cir. 1969), cert. denied, 395 U.S. 982 (1969) ("That this court is not competent or empowered to sit as a super-executive authority to review the decisions of the Executive and Legislative branches of government in regard to the necessity, method of selection, and composition of our defense forces is obvious and needs no further discussion"); Orloff v. Willoughby, 345 U.S. 83, 93 (1953) ("Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.").
244. See J. Skelly Wright, The Courts and the Rulemaking Process: the Limits of Judicial Review, 59 CORNELL L. REV. 375.
245. Id. at 376.
246. Id. at 379. The power of interest groups representing individuals in such disputes is also especially relevant. The debate about hate speech and legislation prohibiting it has been largely shaped by free speech groups such as the American Civil Liberties Union (ACLU), with no comparable support from groups such as the National Association for the Advancement of Colored People (NAACP) supporting hate speech restrictions. The lack of such powerful advocacy groups may explain why the Court has never allowed any significant restrictions on hate speech. See SAMUEL WALKER, HATE SPEECH: THE HISTORY OF AN AMERICAN CONTROVERSY, 13, 23-24 (1994).
247. Wright, supra note 227, at 378.
248. Id.
249. Id. at 379.
250. Id.
251. For an example of judicial deference in administrative policymaking in economic matters, see Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 33-34 (1976).
252. CARL VON CLAUSEWITZ, ON WAR, bk. I, ch. 7, 119 (Michael Howard & Peter Paret eds. & trans., 1989).
253. Id.
254. MICHAEL HOWARD, CLAUSEWITZ 25 (1983). For an example of friction, see EDWARD LUTTWAK, STRATEGY, THE LOGIC OF WAR & PEACE 10-15 (1987).
255. MICHAEL HOWARD, CLAUSEWITZ 25 (1983). For an example of friction, see EDWARD LUTTWAK, STRATEGY, THE LOGIC OF WAR & PEACE 10-15 (1987).
256. "War is the realm of chance. No other human activity gives it greater scope: no other has such incessant and varied dealings with this intruder. Chance makes everything more uncertain and interferes with the course of events." CLAUSEWITZ, supra note 235, bk. I, ch. 3, 101.
257. Id. at bk. 2, ch. 3, 149.
258. Hirschorn, supra note 213, at 182.
259. Hirschorn, supra note 213, at 182
260. One bias crime expert has stated: "Raw numbers [alone] mean absolutely nothing in this business." John Cook, Major, Maryland State Police Criminal Intelligence Unit, quoted in Brian Levin, Bias Crimes: A Theoretical and Practical Overview, 4 STAN. L. & POL'Y REV. 165, 172 (Winter 1992-3).
261. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE REPORT TO THE NATION ON CRIME & JUSTICE 12 (2d ed. 1988). According to this 1988 report, the first major study on the subject, assaults make up more than 30% of all bias crimes. The year before the Murrah Bombing and the Fayetteville murders, the statistics remained the same. Assaults in 1994 made up over 30% of all bias crimes (simple assault: 18%; aggravated assault: 14%). The report stated that crimes against persons constituted 72% of hate crime offenses reported. U.S. DEP'T OF JUSTICE, 1994 HATE CRIME REPORT.
262. Abraham Abramovsky, Bias Crime: A Call for Alternative Responses, 19 FORDHAM URB. L.J., 875, 887 (1992).
263. Different statistics regarding median age of bias crime confirms the relative youth of offenders. The median age group for most bias criminals in New York City was 18-25. James Garofolo, Bias and Non-Bias Crimes in New York City, 11 (Nov 9, 1990) (unpublished manuscript presented to the American Society of Criminology) cited in Levin, supra note 219, at 166. A study done by an attorney general task force in Minnesota found that 65% of bias crimes were committed by persons between the age of 11-20. Bias Related Crime Development, Minnesota Hate Crime Legislation, NATIONAL ASSOCIATION OF ATTORNEYS GENERAL CIVIL RIGHTS UPDATES, Spring 1997, at 2.
264. Abramovsky, supra note 244, at 886-7.
265. Levin, supra note 242, at 167. Levin gives the example of a fatal car accident in New York in August 1991 that became racially polarizing. It resulted in 1500 police officers being called out to contain riots that lasted for four days and resulted in 180 arrests. Id.
266. "The military constitutes a specialized community governed by a separate discipline from that of the civilian." Chappell v. Wallace, 462 U.S. 296, 300 (1983). "[T]he different character of the military community and of the military mission requires a different application of [First Amendment] protections." Parker v. Levy, 417 U.S. 733, 758 (1974).
267. 438 U.S. 435 (1987).
268. Id.
269. See Brown v. Glines, 444 U.S. 348 (1980); Middendorf v. Henry, 425 U.S. 25 (1976) (quoting United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)); Schlesinger v. Councilman, 420 U.S. 738 (1975); Parker, 417 U.S., at 743-44; Orloff v. Willoughby, 345 U.S. 83, 94 (1953); Chappell, 462 U.S. at 300. See also Hirschorn, supra note 213, at 201-2.
270. See supra note 208. See also Hirschorn, supra note 213, at 213-14. Hirschorn bases the separate community doctrine on the nature of international armed conflict, which has no parallel in the domestic arena. When the government commits itself to war, it does not operate under the standard principles that would necessarily bind opponents in domestic arenas. Rather, in going to war, the government engages in activities - the deliberate killing and destruction of the other side-that would, in any other context, be unlawful. The military is the government's legitimate means to accomplish this unique task. Id. at 236.
271. See Hirschorn, supra note 213, at 219.
272. Id. at 219-21. Studies on bureaucratic organizations include: AMITAI ETZIONI, A COMPARATIVE ANALYSIS OF COMPLEX ORGANIZATIONS: ON POWER, INVOLVEMENT, & THEIR CORRELATES 40-78 (1975); BARRINGTON MOORE, INJUSTICE: THE SOCIAL BASIS OF OBEDIENCE & REVOLT 3-48 (1978).
273. Id. at 219-21. Studies on bureaucratic organizations include: AMITAI ETZIONI, A COMPARATIVE ANALYSIS OF COMPLEX ORGANIZATIONS: ON POWER, INVOLVEMENT, & THEIR CORRELATES 40-78 (1975); BARRINGTON MOORE, INJUSTICE: THE SOCIAL BASIS OF OBEDIENCE & REVOLT 3-48 (1978).
274. For a classic study of military discipline and organizations in combat situations, see S.L.A. MARSHALL, MEN AGAINST FIRE: THE PROBLEM OF BATTLE COMMAND IN FUTURE WAR 138-178 (1947).
275. See, e.g., Courtney W. Rowland, The Hands-Off Policy and Intramilitary Torts, 71 IOWA L. REV. 93, 106-21 (1985).
276. Id. at 106-10.
277. Id. at 109.
278. UCMJ arts. 89, 91 (1998).
279. Sociologist Morris Janowitz, one of the most prominent scholars of the growing "civilianization" of the military, even in the context of Cold War nuclear warfare, states: [W]hile it is true that modern warfare exposes the civilian and the soldier to more equal risks, the distinction between military roles and civilian roles has not been eliminated. Traditional combat-ready military formations need to be maintained for limited warfare. The necessity for naval and air units to carry on the hazardous tasks Of continuous and long-range reconaissance and detection, demand organizational forms that will bear the stamp of conventional formations. . . . . More important, no military system can rely on expectation of victory based on the initial exchange of firepower, whatever the form of the initial exchange may be. Subsequent exchanges will involve military personnel-again, regardless of their armament-who are prepared to carry on the struggle as soldiers, that is, subject themselves to military authority and continue to fight. MORRIS JANOWITZ, SOCIOLOGY & THE MILITARY ESTABLISHMENT 20 (rev. ed. 1965).
280. Howland, supra note 254, at 115-21; Jonathan P. Tomes, Feres to Chappell to Stanley. Three Strikes and Servicemembers Are Out, 25 U. RICH. L. REV. 93, 107-10 (1990).
281. Howland, supra note 255, at 115; Tomes, supra note 260, at 107.
282. Howland, supra note 255, at 115.
283. Tomes, supra note 259, at 108-9.
284. Howland argues for allowing service members to sue one another for torts committed incident to military service. Howland, supra note 255. at 94-5. Tomes contends that service members should be allowed to sue the government for torts. Tomes, supra note 260, at 133-4.
285. The two most famous studies regarding unit cohesion based upon loyalty to "primary groups" are Morris Janowitz's and Edward Shils' study of the Wehrmacht in World War II, and Samuel Stouffer's immense study of World War II American servicemen. Morris Janowitz & Edward Shils, Cohesion and Disintegration in the Wehrmacht in World War II, 12 PUB. OPINION Q. 284 (1984); SAMUEL STOUFFER ET AL., THE AMERICAN SOLDIER (1949).
286. The two most famous studies regarding unit cohesion based upon loyalty to "primary groups" are Morris Janowitz's and Edward Shils' study of the Wehrmacht in World War II, and Samuel Stouffer's immense study of World War II American servicemen. Morris Janowitz & Edward Shils, Cohesion and Disintegration in the Wehrmacht in World War II, 12 PUB. OPINION Q. 284 (1984); SAMUEL STOUFFER ET AL., THE AMERICAN SOLDIER (1949).
287. JANOWITZ, supra note 259, at 78.
288. Id.
289. th Infantry Division during the Battle of the Bulge in 1944, and the My Lai Massacre in the Vietnam War in 1968.
290. Moskos developed this thesis in the late 1970's when the military shifted to an all-volunteer force. For the seminal article propounding the I/O thesis, see Charles C. Moskos, From Institution to Occupation: Trends in the Military Organization, 4 ARMED FORCES & SOCIETY 41 (1977). The I/O thesis was the subject of an international conference held at the Air Force Academy in 1985. The papers presented there made up the book See Acknowledgements to THE MILITARY: MORE THAN JUST A JOB? xi (Charles C. Moskos & Frank R. Wood eds., 1988). Studies on unit cohesion in the military have cited Moskos's I/O thesis as well. In a study by the Defense Management Study Group on Military Cohesion, the authors state: Charles C. Moskos, Jr., has captured the imagination of many people with his writings on an alleged shift of the military from an "institution" (where membership is legitimated in terms of a "calling or profession, which implies self-sacrifice and moral commitment) to an "occupational" model (where membership is legitimated in terms of the economic marketplace; that is, duties are performed in exchange for material benefits). If Moskos is correct, the shift from an institutional to an occupational model has important implications for military cohesion. DEFENSE MANAGEMENT STUDY GROUP ON MILITARY COHESION, COHESION IN THE U.S. MILITARY 2 (1984). See LIEUTENANT COLONEL WILLIAM DARRYL HENDERSON, COHESION: THE HUMAN ELEMENT IN COMBAT 57-60 (1985).
291. Moskos developed this thesis in the late 1970's when the military shifted to an all-volunteer force. For the seminal article propounding the I/O thesis, see Charles C. Moskos, From Institution to Occupation: Trends in the Military Organization, 4 ARMED FORCES & SOCIETY 41 (1977). The I/O thesis was the subject of an international conference held at the Air Force Academy in 1985. The papers presented there made up the book See Acknowledgements to THE MILITARY: MORE THAN JUST A JOB? xi (Charles C. Moskos & Frank R. Wood eds., 1988). Studies on unit cohesion in the military have cited Moskos's I/O thesis as well. In a study by the Defense Management Study Group on Military Cohesion, the authors state: Charles C. Moskos, Jr., has captured the imagination of many people with his writings on an alleged shift of the military from an "institution" (where membership is legitimated in terms of a "calling or profession, which implies self-sacrifice and moral commitment) to an "occupational" model (where membership is legitimated in terms of the economic marketplace; that is, duties are performed in exchange for material benefits). If Moskos is correct, the shift from an institutional to an occupational model has important implications for military cohesion. DEFENSE MANAGEMENT STUDY GROUP ON MILITARY COHESION, COHESION IN THE U.S. MILITARY 2 (1984). See LIEUTENANT COLONEL WILLIAM DARRYL HENDERSON, COHESION: THE HUMAN ELEMENT IN COMBAT 57-60 (1985).
292. Moskos developed this thesis in the late 1970's when the military shifted to an all-volunteer force. For the seminal article propounding the I/O thesis, see Charles C. Moskos, From Institution to Occupation: Trends in the Military Organization, 4 ARMED FORCES & SOCIETY 41 (1977). The I/O thesis was the subject of an international conference held at the Air Force Academy in 1985. The papers presented there made up the book See Acknowledgements to THE MILITARY: MORE THAN JUST A JOB? xi (Charles C. Moskos & Frank R. Wood eds., 1988). Studies on unit cohesion in the military have cited Moskos's I/O thesis as well. In a study by the Defense Management Study Group on Military Cohesion, the authors state: Charles C. Moskos, Jr., has captured the imagination of many people with his writings on an alleged shift of the military from an "institution" (where membership is legitimated in terms of a "calling or profession, which implies self-sacrifice and moral commitment) to an "occupational" model (where membership is legitimated in terms of the economic marketplace; that is, duties are performed in exchange for material benefits). If Moskos is correct, the shift from an institutional to an occupational model has important implications for military cohesion. DEFENSE MANAGEMENT STUDY GROUP ON MILITARY COHESION, COHESION IN THE U.S. MILITARY 2 (1984). See LIEUTENANT COLONEL WILLIAM DARRYL HENDERSON, COHESION: THE HUMAN ELEMENT IN COMBAT 57-60 (1985).
293. Moskos developed this thesis in the late 1970's when the military shifted to an all-volunteer force. For the seminal article propounding the I/O thesis, see Charles C. Moskos, From Institution to Occupation: Trends in the Military Organization, 4 ARMED FORCES & SOCIETY 41 (1977). The I/O thesis was the subject of an international conference held at the Air Force Academy in 1985. The papers presented there made up the book See Acknowledgements to THE MILITARY: MORE THAN JUST A JOB? xi (Charles C. Moskos & Frank R. Wood eds., 1988). Studies on unit cohesion in the military have cited Moskos's I/O thesis as well. In a study by the Defense Management Study Group on Military Cohesion, the authors state: Charles C. Moskos, Jr., has captured the imagination of many people with his writings on an alleged shift of the military from an "institution" (where membership is legitimated in terms of a "calling or profession, which implies self-sacrifice and moral commitment) to an "occupational" model (where membership is legitimated in terms of the economic marketplace; that is, duties are performed in exchange for material benefits). If Moskos is correct, the shift from an institutional to an occupational model has important implications for military cohesion. DEFENSE MANAGEMENT STUDY GROUP ON MILITARY COHESION, COHESION IN THE U.S. MILITARY 2 (1984). See LIEUTENANT COLONEL WILLIAM DARRYL HENDERSON, COHESION: THE HUMAN ELEMENT IN COMBAT 57-60 (1985).
294. Moskos states: An occupation is legitimated in terms of the marketplace. Supply and demand, rather than normative considerations, are paramount . . . . In a modern industrial society, employees usually enjoy some voice in the determination of appropriate salary and work conditions. Such rights are counterbalanced by responsibilities to meet contractual obligations. The cash-work nexus emphasizes a negotiation between individual (or workers' groups) and organizational needs. A common form of interest articulation is the trade union. The occupational model implies the priority of self-interest rather than that of the employing organization. Charles C. Moskos, Institutional and Occupational Trends in the Armed Forces, in THE MILITARY: MORE THAN JUST A JOB? 16-19 (Charles C. Moskos & Frank R. Wood eds., 1988).
295. Moskos lists several basic traditional distinctions between occupational and institutional models. Among them are societal regard (institutional: esteem based on notions of service; occupational: prestige based on level of compensation); recruitment appeals (institutional: appeals to character and lifestyle; occupational: appeals to technical training and higher pay); and basis of compensation (institutional: rank and seniority; occupational: skill level and manpower shortages). Id. at 16.
296. Id. See Hirschorn, supra note 213, at 218-19: The armed forces are an example of a rational bureaucracy: a hierarchical organization characterized by a specialized division of labor according to system and authority based on role rather than personality, in which each individual's role is to pursue goals established by the heads of the hierarchy through methods that they have calculated will attain these goals. Id.
297. Moskos, supra note 270, at 16.
298. Moskos does not assert that the military is "purely" institutional or the civilian community purely occupational. Rather he assumes: [A] continuum ranging from a military organization highly divergent from civilian society to one highly convergent with civilian structures . . . . Concretely, of course, military forces have never been entirely separate or entirely coterminous with civilian society, but the conception of a scale, along which the military more or less overlaps with civilian society, highlights the ever-changing interface between the armed forces and society. Id. at 15. For critiques of the I/O thesis see Morris Janowitz, From Institution to Occupation: The Need for Conceptual Clarity, 4 ARMED FORCES & SOCIETY 41-50 (1977); John H. Faris, The Social Psychology of Military Service and the Influence of Bureaucratic Rationalism, in THE MILITARY: MORE THAN JUST A JOB? 57-75 (Charles C. Moskos & Frank R. Wood, eds. 1988).
299. Moskos does not assert that the military is "purely" institutional or the civilian community purely occupational. Rather he assumes: [A] continuum ranging from a military organization highly divergent from civilian society to one highly convergent with civilian structures . . . . Concretely, of course, military forces have never been entirely separate or entirely coterminous with civilian society, but the conception of a scale, along which the military more or less overlaps with civilian society, highlights the ever-changing interface between the armed forces and society. Id. at 15. For critiques of the I/O thesis see Morris Janowitz, From Institution to Occupation:
300. 395 U.S. 258 (1969).
301. Id.
302. Id.
303. Moskos, supra note 270, at 22.
304. 438 U.S. 435 (1987).
305. Id.
306. Charles Moskos, Success Story: Blacks in the Army, ATLANTIC MONTHLY, May 1986, at 64. "Blacks occupy more management positions in the military than they do in business, education, journalism, government, or other significant sections of American society. The armed forces still have race problems, but these are minimal compared with the problems that exist in other institutions, public and private." Id.
307. Exec. Order No. 9981, 3 C.F.R. 722 (1943-1948) reprinted in 1948 U.S.C.C.A.N. 2673.
308. John Sibley Butler, The Military as a Vehicle of Social Integration: The Afro-American Experience as Data, in ETHNICITY, INTEGRATION, & THE MILITARY 39 (Henry Dietz et al. eds., 1991); see CHARLES MOSKOS & JOHN SIBLEY BUTLER, ALL THAT WE CAN BE 30 (1996).
309. John Sibley Butler, The Military as a Vehicle of Social Integration: The Afro-American Experience as Data, in ETHNICITY, INTEGRATION, & THE MILITARY 39 (Henry Dietz et al. eds., 1991); see CHARLES MOSKOS & JOHN SIBLEY BUTLER, ALL THAT WE CAN BE 30 (1996).
310. According to Moskos and Butler: By the mid-1950s, a snapshot of a hundred enlisted men on a typical parade would have shown twelve black faces; integration had become a way of Army life. At a time when Afro-Americans were still arguing for their educational rights before the Supreme Court and marching for social and political rights in the Deep South, the Army had become desegregated with little fanfare. MOSKOS & BUTLER, supra note 283, at 31. Moskos and Butler divide the integration of the military into two phases: (1) organizational integration which put an end to formal discrimination in the ranks (recruitment, training, and living arrangements); and (2) leadership integration, which came after the civil rights movements of the 1960s and in which different races (particularly black) were brought into leadership roles. Id.
311. The problems in the Army, however, were not just confined to race. Moskos and Butler see the many problems in the military during and after the Vietnam War (e.g., racial strife, indiscipline, "fragging" of superiors) as part of general unraveling of the Army during that time. MOSKOS & BUTLER, supra note 283, at 32-3.
312. RD CONG., "AN ASSESSMENT OF RACIAL DISCRMINATION IN THE MILITARY: A GLOBAL PERSPECTIVE" at 2-5 (1994). The North Carolina Branch of the NAACP appointed a task force to survey the racial climate at North Carolina military installations following the Fayetteville murders. The task force found no evidence of an organized white supremacist movement at the installations it visited. It did state, however, CONFERENCE OF BRANCHES, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE TASK FORCE ON COMMUNITY & MILITARY RESPONSE TO WHITE SUPREMACIST ACTIVITIES IN & AROUND MILITARY BASES, TASK FORCE REPORT 16 (1996).
313. RD CONG., "AN ASSESSMENT OF RACIAL DISCRMINATION IN THE MILITARY: A GLOBAL PERSPECTIVE" at 2-5 (1994). The North Carolina Branch of the NAACP appointed a task force to survey the racial climate at North Carolina military installations following the Fayetteville murders. The task force found no evidence of an organized white supremacist movement at the installations it visited. It did state, however, CONFERENCE OF BRANCHES, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE TASK FORCE ON COMMUNITY & MILITARY RESPONSE TO WHITE SUPREMACIST ACTIVITIES IN & AROUND MILITARY BASES, TASK FORCE REPORT 16 (1996).
314. Butler, supra note 283, at 44-5.
315. Id. According to Butler: "[A] factor interacting strongly with the separateness of military society to produce the transformation was the bureaucratic hierarchical power structure of the organization." Id. at 45.
316. Id.
317. "Although the military is a part of America and its social structure, it has traditionally been a separate entity . . . . [T]he net effect of becoming a part of military organizations ia to be separated from one's past life both physically, and, to an extent, psychologically." Id.
318. Id.
319. One of the many contrasts between civilian and Army life for blacks, as Moskos and Butler point out, is that blacks in the Army are three times more likely to say that race relations are better than their civilian counterparts. MOSKOS & BUTLER, supra note 282, at 5.
320. SAMUEL STOUFFER ET AL., 1 THE AMERICAN SOLDIER 549 (1949) cited in John Sibley Butler, Race Relations in the Military, in THE MILITARY: MORE THAN JUST A JOB? 120-121 (Charles C. Moskos & Frank R. Wood eds., 1988). Additional research conducted in the late 1970's supports Stouffer's hypothesis. See John Sibley Butler & Kenneth L. Wilson, The American Soldier Revisited: Race and the Military, 59 SOC. SCI. Q. 451-67 (1978).
321. SAMUEL STOUFFER ET AL., 1 THE AMERICAN SOLDIER 549 (1949) cited in John Sibley Butler, Race Relations in the Military, in THE MILITARY: MORE THAN JUST A JOB? 120-121 (Charles C. Moskos & Frank R. Wood eds., 1988). Additional research conducted in the late 1970's supports Stouffer's hypothesis. See John Sibley Butler & Kenneth L. Wilson, The American Soldier Revisited: Race and the Military, 59 SOC. SCI. Q. 451-67 (1978).
322. SAMUEL STOUFFER ET AL., 1 THE AMERICAN SOLDIER 549 (1949) cited in John Sibley Butler, Race Relations in the Military, in THE MILITARY: MORE THAN JUST A JOB? 120-121 (Charles C. Moskos & Frank R. Wood eds., 1988). Additional research conducted in the late 1970's supports Stouffer's hypothesis. See John Sibley Butler & Kenneth L. Wilson, The American Soldier Revisited: Race and the Military, 59 SOC. SCI. Q. 451-67 (1978).
323. Butler, supra note 293, at 121.
324. Id.
325. Id.
326. See supra pp. 54-7.
327. See supra pp. 56-57.
328. See supra pp. 57-9.
329. See supra p. 59.
330. See supra p. 59.
331. See supra note 209.
332. 457 U.S. 503 (1986).
333. 424 U.S. 828 (1976).
334. In Goldman, the Court stated: "The Air Force has drawn the line essentially between religious apparel that is visible and that which is not, and we hold that those portions of the regulations challenged here reasonably and evenhandedly regulate dress in the interest of the military's perceived need for uniformity." Goldman, 457 U.S. at 509. In Greer, the policy in question prohibited the distribution or displaying "of any publication, including newspapers, magazines, handbills, flyers, circulars, pamphlets or other writings, issued, published or otherwise prepared by any person, persons, agency or agencies . . . on the Fort Dix Military Reservation without prior written approval of the Adjutant General, this headquarters." Greer, 424 U.S. at 831 (emphasis added). As the Court stated in Thorne v. Department of Defense, a case involving the military's "don't ask, don't tell" homosexual policy: "No case has explicitly defined the appropriate level of scrutiny to be applied in content based restriction on speech in the military context." Thome v. Dep't of Defense, 916 F. Supp. 1358, 1369 (E.D. Va. 1996).
335. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.C.
336. 505 U.S. 377 (1992).
337. 417 U.S. 733 (1974).
338. In examining the current law regarding hate speech, this article acknowledges that the "absolutist" protections afforded by the Supreme Court to forms of hate speech derive from cases decided during and immediately after Worls War II that marked the "birth of a national policy on hate speech." Walker, supra note 229 at 76. The most important cases decided by the Court during this time involved the rights of Jehovah's Witnesses to distribute literature and promulgate views considered offensive, and not to have to salute or pledge allegiance to the flag. See Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. Irvington, 308 U.S. 147 (1938); Cantwell v. Connecticut, 310 U.S. 296 (1940); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Prior to these series of cases, the Supreme Court took a much less absolutist view of the protections afforded to offensive speech under the First Amendment. See Walker, supra note 229, pp. 1-40 (reviewing the Supreme Court positions prior to World War II).
339. These include, for example, the right: to hold conventions (Keefe v. Library of Congress, 777 F.2d 1573 (D.C. Cir. 1985)); to canvas in political elections (Hynes v. Mayor of Ordell, 425 U.S. 610, 616-17 (1976)); to contribute money to political causes (Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkeley, Ca., 454 U.S. 290, 298 (1981)); to solicit for money for political or other causes (Cornelius v. NAACP Legal Defense and Educ. Fund, 473 U.S. 788, 797 (1984)); to distribute literature (United States v. Grace, 461 U.S. 171, 176 (1983)); to picket (Carey v. Brown, 447 U.S. 455, 460 (1980); and to hold peaceful demonstrations (NAACP v. Claiborne Hardware, 458 U.S. 866, 927 (1982));
340. th Century. Jeannine Bell, Policing Hatred: Police Bias Units and the Construction of Hate Crimes, 2 MICH. J. OF RACE & L. 421, 430-1 (1991).
341. 505 U.S. at 377.
342. Id. at 381.
343. Id.
344. 315 U.S. 568 (1942). The Supreme Court in that case upheld the statute that allowed the conviction of a Jehovah's Witness who called a city marshal a "damned Fascist" and a "G d racketeer." Id. at 569. The Court, in upholding the statute announced that such utterances "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly out-weighed by the social interest in order and morality." Id. at 572. Such utterances, deemed "fighting words" are words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id.
345. Id. at 572.
346. R.A.V., 505 U.S. at 381 (citing Chaplinsky, 315 U.S. at 572). The rationale behind banning fighting words was based upon the reaction they provoke. They trigger an "automatic unthinking reaction, rather than a consideration of an idea" and thus, the Court did not consider them within the realm of protected speech, since they are essentially non-communicative. Id. As one commentator has pointed out, however, the "fighting words" doctrine originally focused "primarily on the content of the communication without closely examining the context within which it was uttered." LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 12-10 at 617 (1978). The doctrine was modified in subsequent cases in which the Supreme Court distinguished language that may provoke an unthinking reaction but, nevertheless, was the communication of an idea. In Cohen v. California, for example, the Court held that the words "F the draft" on a jacket were not fighting words: "One man's vulgarity is another man's lyric," said Justice Douglas. Cohen v. California, 403 U.S. 15, 25 (1971).
347. R.A.V, 505 U.S. at 377.
348. Id.
349. Id. at 385.
350. Id.
351. Id. at 391.
352. Id.
353. Between 100-200 colleges and universities have various hate speech policies. Several of these have been modified in wake of R.A.V. Jonathan M. Holdowsky, Note, Out of the Ashes of the Cross: The Legacy of R.A.V. v. City of St. Paul, 30 N. ENG. L. REV. 1115, 1173 (1996). See IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ., 993 F.2d 386 (4th Cir. 1993) as an example of a challenge to a university hate speech policy. New Jersey's hate crime statute was declared unconstitutional because of R.A.V., and the New Jersey State Senate subsequently rewrote its hate crime bill. State v. Vawter, 642 A.2d 349 (N.J. 1994).
354. See Holdowsky, supra note 324, at 1165 (criticizing R.A.V.'s failure to answer whether it requires that the class of speech be proscribable before determining whether the particular law falls under an exception); Elena Kagan, Regulation of Hate Speech and Pornography After R.A.V., 60 U. CHI. L. REV. 873, 878-9 (1993) (criticizing the distinction between viewpoint and harmed based analyses as fictive).
355. See Steven H. Shiffrin, Racist Speech, Outsider Jurisprudence, and the Meaning of America, 80 CORNELL L. REV. 43 (1994).
356. "The notion that a state may not differentiate harms presented by speech, especially when the expression is not protected, contradicts the reasonable expectations that regulating objections may be pursued piecemeal under such circumstances." Donald E. Lively, Racist Speech Management: The High Risks of Low Achievement, 1 VA. J. Soc. POL'Y & L. 1, 27 (1993).
357. See Vawter, 642 A.2d at 349; State v. Sheldon, 629 A.2d 753 (Md. 1993). State Supreme Courts in both states held that the state hate crimes statute were unconstitutional based upon R.A.V.
358. See AIDS Action Comm. of Mass. v. Metropolitan Boston Transp. Auth., 42 F.3d 1 (1st Cir 1994) (Metropolitan Boston Transportation Authority's decision not to run advertisements produced by AIDS Action Committee on the basis that they were sexually explicit was viewpoint based discrimination, given that it allowed blatantly exploitative language and photographs featuring women in sexually suggestive manner). See also Gay & Lesbian Bisexual Alliance v. Pryor, 110 F.3d. 1543 (11th Cir. 1997) (University of Alabama's decision not to fund gay/lesbian groups because sodomy was illegal under Alabama was viewpoint based discrimination).
359. "[A]S opposed to "rational relation" tests "rarely failed by the most outlandish law." George G. Size & Glenn R. Britton, Is There Hate Speech?: R.A.V. and Mitchell in the Context of First Amendment Jurisprudence, 21 OHIO N.U. L. REV., 913, 924 (1995).
360. Edward J. Eberle, Hate Speech, Offensive Speech, and Public Discourse in America, 29 WAKE FOREST L. REV, 1135, 1152-3 (1994). Eberle lists three important functions of R.A.V.: (1) the method serves as a valuable tool for close inspection of what speech should be protected; (2) it serves as a tool for applying the First Amendment even in presumably unprotected areas; and (3) it forces judges, prosecutors, and lawmakers to focus on what is relevant and worth protecting under the First Amendment. Id.
361. Id.
362. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.A.
363. Id. para. 4-12C.2.
364. Id. para. 4-12C.2.C.
365. Id. para. 4-12C.2.A.
366. Id.
367. Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).
368. Posodos v. Puerto Rico Assoc., 478 U.S. 328 (1995).
369. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
370. The first basis for an exception is when the reason for the discrimination is the same reason that the "entire class of speech is proscribable." Therefore, the federal government can single out threats against the President and make them illegal because such threats when against the President have "special force." R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992). The second basis is that the "secondary effect" of the speech is the rationale for the restriction, not the content of the speech itself. Id. at 388. Scalia leaves open the possibility for other bases as well: "[I]t may not even be necessary to identify any "neutral" basis, so long as the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot." Id. at 390. For purposes of examining the Army's extremist policy, this article focuses on the "secondary effects" rationale as the basis that provides justifications for the policy and local implementations of it. Analyzing speech proscriptions under this rationale focuses on "effects." In the military context, this is easily explained in terms of impact on morale and good order and discipline. While it is possible to examine extremism, and in particular white supremacism, in relation to the "entire class" rationale, it is more conceptually difficult because the focus is not on easily understood ideas such as good order and discipline but more on the nature of the proscribed speech itself.
371. R.A.V., 505 U.S. at 389. See Renton, 475 U.S. at 48. In Renton, the Supreme Court sustained a municipal ordinance prohibiting adult theaters within a thousand feet of schools, parks, churches, and residential neighborhoods. Renton focused on the "secondary effects" of such theaters: uniquely among businesses, created negative economic consequences in communities where they were present. Id. at 48-9.
372. R.A.V., 505 U.S. at 394. Thus, St. Paul's argument that the ordinance intended to protect minority victimization failed because it focused on victim's reactions. See Thorne v. Department of Defense, 916 F. Supp. 1358 (E.D. Va. 1996).
373. R.A.V., 505 U.S. at 389. The Supreme Court discussed this in Boos v. Berry. In Boos, the Supreme Court held unconstitutional a District of Columbia code provision that prohibited the display of any sign within 500 feet of a foreign embassy if the sign tended to bring that government into "public odium" or "public disrepute." Boos v. Berry, 485 U.S. 312, 315 (1988). The Court rejected the "secondary effects" argument brought by the District of Columbia ("our international law obligation to shield diplomats from speech that offends their dignity"). Justice O'Connor discussed the doctrine as follows: To take an example close to Renton, if the ordinance there was justified by the city's desire to prevent the psychological damage it felt was associated with adult movies, then analysis of the measure as a content-based statute would have been appropriate. The hypothetical regulation targets the direct impact of a particular category of speech, not a secondary feature that happens to be associated with that type of speech. Id. at 321. For an application of the "secondary effects" rationale to the military, see Thorne, 916 F. Supp. at 1361. In that case, the court rejected the argument that the "don't ask, don't tell" military homosexual policy is not aimed at the speech but at the speech's secondary effects, based upon the disruption to "unit cohesion." "This argument is unpersuasive, it stretches the 'secondary effects doctrine' too far." The court did not indicate why the argument stretches the doctrine "too far," but rather cited other cases as examples of the Supreme Court refusing to apply the doctrine. Id. at 1368.
374. Id.
375. Id.
376. In State v. Sheldon, Maryland argued that the prohibition on cross-burning aimed at the secondary effect of fire hazards to property owners. The Maryland Supreme Court rejected this argument. The court noted that the legislative history of the statute did not aim to protect against fire hazards, rather that the State clearly looked to prohibit the "primary effect" of cross burning, "the political idea it expresses." State v. Sheldon, 629 A.2d 753, 761 (Md. 1993).
377. Richard J. Williams, Jr., Comment, Burning Crosses and Blazing Words: Hate Speech and the Supreme Court's Free Speech Clause Jurisprudence, 5 SETON HALL CONST. L.J. 609, 662-3 (1995). New Jersey's statutes in this area are a good example of viewpoint based proscriptions redrafted to viewpoint neutral ones. One of the original statutes stated that: A person is guilty of a crime . . . if he purposely, knowingly, or recklessly puts or attempts to put another in fear of bodily violence by placing on public or private property a symbol, an object, a characterization, appellation or graffiti that exposes another to threats of violence, contempt or hatred on the basis of race, color, creed, or religion, including, but not limited to a burning cross or Nazi swastika. N.J. STAT. ANN. § 2C:17-3 (West 1996). Following State v. Vawter, the New Jersey legislature passed a new statute with the same language except removing the phrase "contempt or hatred on the basis of race, color, creed, or religion, including, but not limited to a burning cross or Nazi swastika." Id. § 2C:33-11.
378. Nowhere in the opinion does Scalia state that St. Paul had to make the proscribed language a threat of violence or other criminal activity. According to one commentator, this is a flaw of R.A.V. "[I]ts failure to identify a particularly intolerable mode of communication such as threats of violence or intimidation" that might be utilized as a basis for justifying content-or viewpoint-based discriminations on speech and speech-related conduct. Williams, supra note 347, at 650.
379. See, e.g., People v. Stephen S., 31 Cal. Rptr. 2d 644, 648 (Ct. App. 1994). In that case, the California Appellate Court stated that the hate crimes statute proscribed targeted cross burning on one's private property, since the focus was on the "infliction upon a specific victim of immediate fear and intimidation and a threat of specific harm-rather than the racist message conveyed." Id.
380. Commanders have the authority to prohibit military personnel from engaging in . . . activities that the commander determines will adversely affect good order and discipline within the command. This includes, but is not limited to, the authority to order the removal of symbols, flags, posters, or other displays from barracks . . . . AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.C.
381. For purposes of analytical clarity in the example above, this article leaves out the idea of judicial deference discussed earlier in this paper. See supra pp. 41-61 and accompanying notes. Judicial deference is, of course, a major concept that would factor into any analysis regarding the legality of a military policy. Yet if the commander can only provide as his rationale a desire not to offend sensibilities of other soldiers, then the commander has not articulated the very reason for deference - the need for order and discipline so a unit can be combat effective.
382. Of course, a commander can always make the "good order and discipline" argument The problem arises, however, when the definition of what good order and discipline is not statutory imposed (e.g., disobedience or disrespect to a superior commissioned officer) but reliant on the individual commander. This article discusses the limits of such authority later. See infra pp. 72-5. If, on the other hand, the offending of sensibilities were statutorily proscribed, that would in itself qualify as a "secondary effect" under R.A.V Justice Scalia cites the example of sexually derogatory language that "may produce a violation of Title VII's general prohibition against sexual discrimination in employment practices, 42 U.S.C. § 2000e-2; 29 C.F.R. § 1604.11 (1991)." R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). In the example above, a Title VII argument has little force because the commander's prohibition extends beyond the workplace to soldiers' barracks rooms.
383. In their book, All That We Can Be, Charles Moskos and John Sibley Butler discuss why the military does not have explicit "hate speech" criminal codes: In short, the military code seeks only to limit utterances likely to undermine good order and discipline, not to deal with statements that hurt feelings or cause outrage. Regulations narrowly drawn to regulate disruptive conduct - not its symbolic content - have credibility and authority not usually enjoyed by promulgators of university anti-hate codes, for example. At the same time, since the Army does not assume responsibility for protecting Afro-Americans from all racial slights and hard feelings, its codes presume that black soldiers possess an implicit fortitude and self-control. MOSKOS & BUTLER, supra note 249, at 53. Moskos and Butler point out that this more limited approach is the result of many factors, among them that blacks in the Army trust the superiors much more than their civilian counterparts trust their civilian superiors. Also, the strong presence of black leadership in Army units, particularly at the senior NCO level. Id. at 53-6. The important point is to ensure the policy focuses on the mission at hand, which is unit combat effectiveness. "The Army treats race relations as a means to readiness and combat effectiveness - not as an end to itself." Id. at 53.
384. This article makes the contrasts in these two scenarios sharp to illustrate the application of R.A.V. analysis in a military setting.
385. While the Supreme Court case has not made rationality the standard of review for command policy, in the most deferential holding, Goldman v. Weinberger, the Court held that the policy regarding the wear of religious garb could be upheld in part because the Air Force asserted a rational basis for it. Goldman v. Weinberger, 475 U.S. 503 (1986).
386. Infra pp. 75-8.
387. MANUAL FOR COURTS-MARTIAL, UNITED STATES, pt. IV, para. 14c(2)(a)(iii) (1998).
388. United States v. Padgett, 45 M.J. 320 (G.G. Ct. Com. App., 1996) (holding that an order forbidding the accused to have any contact with a fourteen year old girl with whom he was allegedly romantically linked was unlawful). The court noted that a primary reason that it found the order unlawful was that the nature of the relationship was unclear. Id. at 522. It further stated: [W]e wish to make clear that an order which effectively requires a service member to cease all contact with another individual is not, per se, patently illegal. As long as such an order furthers the valid military purposes of maintaining good order and discipline and/or protecting the well-being of unit members, such orders will be upheld. Id.
389. United States v. Green, 22 M.J. 711 (A.C.M.R. 1986).
390. United States v. Smith, 1 M.J. 156 (C.M.A. 1975).
391. United States v. Flynn, 34 M.J. 1183 (1992) (order to cease contact with female airman involved in suspected fraternization invalid); United States v. Button 31 M.J. 897 (A.F.C.M.R. 1990) (order to accused to stay away from family quartes and to have no contact with stepdaughter invalid); United States v.Wine, 28 M.J. 688, 690 (A.F.C.M.R. 1990) (order to have no contact with dependent wife of another service member invalid); United States v. Wysong, 26 C.M.R. 29 (1958) (order not to speak with other soldiers in company involved in an investigation except in the line of duty invalid).
392. United States v. Milldebrandt, 25 C.M.R. 139 (1958).
393. Parker v. Levy, 417 U.S. 733 (1974). For an historical as well as legal review of the court-martial, see Robert N. Strassfield, Vietnam War on Trial: The Court-Martial of Dr. Howard B. Levy, 1994 WISC. L. REV. 839 (1994).
394. Parker, 417 U.S. at 733.
395. Id.
396. Id.
397. Id.
398. Id. at 755-7. Levy also contended that articles 133 and 134 were "overbroad." The Supreme Court rejected Levy's position on this issue as well. Writing for the Court, Justice Rehnquist stated that the "necessity for obedience, and the consequent necessity for imposition of discipline" could permit "imprecise language" even if that language pertained to "conduct which would be ultimately held to be protected by the First Amendment." Id. at 760.
399. Id. at 755.
400. Id. at 756.
401. The standard for statutes regulating economic affairs was set forth in United States v. National Dairy Products Corp., 372 U.S. 29, 32-22 (1963). In that case, National Dairy Products was charged with violating section 3 of the Robinson-Patnam Act, which made it illegal to sell products at "unreasonably low costs for the purposes of destroying the competition." Id. The Supreme Court rejected National Dairy Product's argument that the statute was facially void. National Dairy Products could not challenge the statute hypothetically but only in terms of its own conduct. Given the language of the Act and past federal legislation, it knew or should heave known its actions were violative of the Act. Id. at 29-34.
402. Parker, 417 U.S. at 733.
403. See supra pp. 72-73 and accompanying notes.
404. The abolition of the "passive/active" participation distinction in the Army's old policy did away with one possible model for guidance, however flawed. AR 600-20, para. 4-12 (old policy), supra note 147, paras. 4-12a.-b.
405. 401 U.S. 355 (1971).
406. Id. Relford was decided in the wake of the Supreme Court's establishment of service connection for court-martial jurisdiction in O'Callahan v. Parker. See supra p. 56 and note 274. The Court listed the factors as: (1) The serviceman's proper absence from the base; (2) The crime's commission away from the base; (3) Its commission at a place not under military control; (4) Its commission within out territorial limits and not in an occupied zone of a foreign country; (5) Its commission in peace-time and its being unrelated to authority stemming from the war power; (6) The absence of any connection between the defendant's military duties and the crime; (7) The victim's not being engaged in the performance of any duty relating to the military; (8) The presence and availability of a civilian court in which the case can be prosecuted; (9) The absence of any flouting of military authority; (10) The absence of any threat to a military post; (11) The absence of any violation of military property; and (12) The offense's being among those traditionally prosecuted in civilian courts. Relford, 401 U.S. at 365.
407. Relford, 401 U.S. at 365.
408. Solorio v. United States, 438 U.S. 435 (1987). See supra p. 57. 380. See supra pp. 62-72 and accompanying notes.
409. See supra pp. 72-75 and accompanying notes.
410. See supra pp. 72-73 and accompanying notes.
411. It should be stressed that this is not a "lawyer" but "command" driven decision. Commanders, not lawyers, have ultimate authority in determining any extremist policy. Some may complain that this proposed method represents another example of "lawyering"-excessive rule-creation and interference by lawyers in command prerogatives. While this article recognizes this criticism is often justifiable, in the area of extremism, official Army policy explicitly states: "Commanders should seek the advice and counsel of their legal advisor when taking actions pursuant to this policy." AR 600-20, para. 4-12 (new policy), supra note 32, para. 4-12C.2.F. Judge advocates need to have articulable and rationale bases for their recommendations to commanders, as do commanders themselves. The purpose of this template is to provide such a basis for both lawyers and commanders.
412. See infra pp. 78-86.
413. Resistance is a fictional magazine.
414. See supra note 42 and pp. 10-11.
415. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.B.6.
416. Id. para. 4-12C.2.E.
417. Id. para. 4-12C.2.C.
418. Id. para. 4-12C.2.A. See supra note 195 and accompanying text.
419. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.2.
420. Id. para. 4-12B.2.B.(1)-(6).
421. Id.
422. Id. para. 4-12B.2.B.2.
423. Id. para. 4-12C.2.C.
424. R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992); see supra pp. 62-72.
425. See supra p. 77.
426. The military courts have consistently held that soldiers have a greatly reduces expectation of privacy in barracks rooms. See, e.g., United States v. Middleton, 10 M.J. 23 (C.M.A. 1981) (no reasonable expectation of privacy during inspections); United States v. McCarthy, 38 M.J. 398 (C.M.A. 1993) (diminished or no expectation of privacy of airman apprehended in barracks room without authorization to apprehend from commander); United States v. Jackson, 48 M.J. 292 (1998) (proper inspection conducted after commander received anonymous information about soldier possessing and distributing drugs in barracks).
427. AR 600-20, para. 4-12 (new policy), supra note 33, para. 4-12C.