Unlawful DLI Order Attempts to Abridge Servicemember Liberty


George Orwell famously said “[if] liberty means anything at all, it means the right to tell people what they do not want to hear.” Apparently, US Army Colonel Phillip J. Deppert and those helping him run the Defense Language Institute Foreign Language Center believe it means nothing at all.

In an email sent earlier this week from one of Deppert’s toadies to the entire student population of the Center, active duty servicemembers are admonished that they “will not” participate in a protest rally in downtown Monterey. Such a restriction is inconsistent with common sense, Department of Defense directives, and the Constitution of the United States. And yet it was delivered without the batting of an eyelash by the supposed grown-ups.

The order cites no legal basis for its restriction other than the implied authority of Deppert, who presumably authorized the email and has not modified its edict.

Here’s the text of the email in full. 


The passage …

“DLIFLC military personnel will not participate in this planned protest as their conduct will violate the UCMJ.”

… is totally wrong.

First, it demonstrates an amateur grasp of the law by framing the UCMJ as something a person can violate. It’s the sort of thing a junior NCO mumbles before s/he has had first contact with the military justice process. The UCMJ isn’t scripture. It doesn’t have commandments. It provides, among other things, a slate of descriptive articles detailing conduct prohibited by servicemembers. Some articles have a number of elements which must be proven in court to permit punishment of a servicemember under the UCMJ for the underlying conduct. You violate a rule and are punished by a court-martial. The UCMJ is the process guide by which this happens, not a set of stone tablets.

For example, a commander who uses his power to abridge the free expression of those in his charge through the implied threat of legal consequences might be found punishable under Article 92 of the UCMJ, given the the DoD policy that

“[a] Service member’s right of expression should be preserved to the maximum extent possible in accordance with the constitutional and statutory provisions of titles 10 and 18, United States Code and consistent with good order and discipline and the national security.”

But beyond its imbecilic syntax, the email is substantively hollow. DoD Direct 1325.6 (from which the policy above is lifted) contains a very clear set of rules governing servicemember participation in protests such as the one at issue here. The basic rule for off-base protests is that servicemembers cannot be prohibited from participating so long as:

1. They are not in uniform.
2. They are not in a foreign country.
3. They are off duty.
4. Violence is not deemed likely to result.

While some may argue California is a foreign country, it is still legally in the union. And while there’s no shortage of village idiots who love to remind servicemembers they are never off-duty, this is a legal nullity. The existence of a line-of-duty determination proves DoD recognizes an off-duty status for servicemembers. And in fact, anyone getting hurt or killed at a protest event such as this one would almost certainly be found to have not acted in the line of duty.

What we have here is yet another example of fascism run amok in the military chain of command. Senior officers know their authority is unlikely to be questioned by trusting followers who pride themselves on loyalty and obedience. They use that expansive moral latitude to extract unquestioning fealty and inappropriately pliable subservience. This may be so the commander can swerve the political risk of bad PR or it may represent the commander’s own political views. Either way, it’s unlawful. Servicemembers have the right to protest so long as they follow the rules. 

Before we conclude, let’s also cast a glare of shame on this pathetic snippet of chauvinist garbage:

“DLIFLC military personnel are discouraged from attending as attendance may quickly devolve into participation.”

Translation: we figure you have so little self-control, we don’t trust you to stand adjacent to a group of demonstrators without joining an activity of which we clearly disapprove (hence the word “devolve”). But yet, we say (while lying through gleaming teeth) that we trust you to take the fight to the nation’s enemies. Clearly we don’t trust you to tie your shoes, and even more clearly, we don’t even believe in the principles we claim you’re fighting for. We don’t want you getting caught up in the messy idea of individual liberty, and we certainly don’t want you figuring out you’re entitled to have it for yourself … our job is a lot easier when you assume you checked your rights at the door. This is why we send our E-9s to say this to you constantly.

To be clear: military members are permitted to participate in protests under the rules provided above. Exercise your right as an American to the extent you see fit, understanding that if you fail to use a right, you may well lose it.

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