JAG Preempts Anthem Protest in Constitutional Crackdown


Off the back of the NFL kneeling controversy, which instigated a firestorm of social media wrangling about the appropriateness and acceptability of players choosing to protest by taking a knee during the national anthem, the Air Force is eager to sidestep a copycat protest within its own ranks.

So says Col. Seth Deam, Staff Judge Advocate for the 673rd Air Base Wing at Joint Base Elmendorf-Richardson in Alaska. Deam, acting on rumors swirling around the base before an event featuring the playing of the national anthem, dispatched an email to base leaders making the legal implications crystal clear.

Here’s a copy of Deam’s message:

Some readers are waiting for me to disagree with Deam, offering some sort of novel legal or normative analysis justifying the conduct of would-be protesters. It’s not going to happen in this case. Not only do I agree with Col. Deam, but his analysis is spot-on.

Contrary to the beliefs of too many mouth breathers to count, military members do not surrender their Constitutional protections when they take an oath of office or enlistment. You can’t give away your rights, in part because they have less to do with your individual conduct and more to do with restrictions placed on the government with respect to regulating that conduct. Every citizen has at least those rights pronounced by the Constitution, and indeed likely many others that are not explicitly mentioned but implied as fundamental natural rights bequeathed to every human being. In fact, if we truly believe our Constitution was merely giving legal meaning to protections already granted by nature, those rights extend to everyone … not just US citizens.

But here’s where it gets tricky. While you don’t surrender your rights when you join the military, you do agree to special limitations on some of those rights where a valid military necessity exists to justify the limitation. The examples are countless, and those reading this article will not need a refresher on them.

Deam is right. Serving means accepting that you must, no questions asked, render proper customs and courtesies. You’re not at liberty to protest the raising of the flag or the playing of national anthem. If you do these things, you can and should be disciplined. If you want to do these things, you should seek the fastest possible route out of the military. And this is one of those areas where removing the uniform and replacing it with a flannel shirt doesn’t make you any less duty-bound.

Don’t get me wrong. Commanders, and especially Air Force commanders, do — frequently and without compunction — abuse their discretion by limiting or attempting to limit the civil liberties of their charges when there is no valid military necessity. It is precisely their fascist misconduct that pushes airmen into a mode of defiance, making it more likely they’ll misjudge the proper moment to misalign with authority.

Examples we’ve showcased right here include Gen. Welsh’s notorious proclamation that he was entitled to judge the content of private text messages written by airmen, Osan’s outrageous dormitory spying program, and Maj. Gen. James Post’s attempt to prevent his subordinates contacting Congress by calling them traitors. The tools of law and order have been serially stretched, warped, and abused by commanders to hound and punish for effect, or simply to exert control. The examples stretch on for miles, in fact posing a threat to the Air Force’s future.

But that’s not what is happening here. In fact, Deam is doing Elmendorf airmen a favor by getting them to see the light and sidestep a career and disciplinary disaster.

I do have one critique for Deam and his colleagues. I’d like to see this same level of energy applied to educating airmen on the expansiveness of their rights rather than simply to tell them what they can’t or mustn’t do. Instead of preaching incessantly at them about the dangers of free speech on the internet, the JAG community and command element need to decide what is truly off-limits, clearly mark it in red, and encourage airmen to flex their liberties fulsomely when outside those red zones.

After all, we should want a fighting force in touch with its own American-ness … its own sense of patriotic liberty … one constantly fighting the urge to be a little too free. This is far preferable to a perfect line of goose-stepping conformists who need to be reminded they represent and fight to protect a free people.


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