Racial Extremism in the Army

• Author: Major Walter M. Hudson
• Pages: 01

MILITARY LAW REVIEW

Volume 159 March 1999

RACIAL EXTREMISM IN THE ARMY

MAJOR WALTER M. HUDSON1

1. Introduction

   In the early morning hours of 7 December 1995, Michael James and Jackie Burden walked down Hall Street in Fayetteville, North Carolina, a neighborhood they knew well. Two men approached them, one of whom had a gun.2 He pointed the gun close to their heads and fired at least five times.3

   By the following afternoon, Fayetteville police arrested two 82d Airborne Division soldiers, Private First Class (PFC) James Burmeister II and PFC Malcolm Wright, for the murders.4 The following day, Fayetteville police arrested a third 82d Airborne soldier, Specialist (SPC) Randy Meadows, and charged him with conspiring to commit the murders. He allegedly drove Burmeister and Meadows to the scene.5 Michael James and

   Jackie Burden were black.6 Burmeister, Wright, and Meadows were white.7

   After the police arrested the suspects, they searched one of Burmeister's residences in nearby Harnett County.8 They found, among other things, a Ruger P89 9mm handgun and a book on how to make explosives.9 They also found various Nazi paraphernalia and white supremacist literature.10

   The murders were not the typical sort. They were not committed during the course of a robbery. They were not committed during a drug deal gone wrong. They were not motiveless killings by a deranged soldier. Rather, the crimes apparently had a chilling motive; they were committed, or at least primarily motivated, because the victims were black.11 The suspects were neo-Nazi "skinheads."12 Burmeister in particular appeared to be a racial extremist who resorted to violence to express his philosophy of white supremacy, race hatred, and race war.13

   The repercussions were vast and involved many different players. The Secretary of the Army held a press conference. He ordered the creation of a task force to study the subject.14 National media, from Sam Donaldson to Esquire magazine, descended upon Fort Bragg to determine how serious the problem was.15 Within the 82d Airborne Division and other units at Fort Bragg, commanders ordered investigations to identify

   extremists, especially neo-Nazi skinheads.16 The "skinhead" controversy at Fort Bragg dominated the Army media in early 1996.17

   Due to the above tragedy, the Army created a new extremist policy and has taken steps to implement it. But questions about the policy and its implementation remain. Is the policy constitutional? How can a commander use it, along with other measures, to combat destructive racial extremism in his unit? Answering these questions is the purpose of this article.

   The first part of this article provides background information on racial extremism. It first examines a standard definition of extremism, and then the Army's. The article points out the differences between the two definitions and why the Army focuses more on particular types of intolerance in its definition. It next provides background on white supremacy, a form of extremism that has recently caused concern in the military. It examines the more traditional forms of white supremacy-organizations such as the Ku Klux Klan-and examines the neo-Nazi "skinhead" culture associated with Burmeister. The first part of the article concludes with an overview of white supremacist extremism's infiltration into the military.

   The second part of this article examines the Army's old policy on extremism and its background. It contends that the drafters of the old policy relied on language based on concerns other than extremism. Therefore, the old policy could not properly address the current extremist phenomenon. It then examines the Army's new policy, comparing it to the old policy and pointing out the great discretion the new policy gives commanders.

   The third part of this article examines the legality of the Army's new extremist policy, especially as applied by commanders. It contends that the policy can be legally defended primarily because of the judicial deference given to the military. This deference has a two-fold basis.

   First, the separation of powers in the U.S. Constitution gives authority to the executive (and within it, to the military) and legislative branches to create military policy. The judiciary has little competence in this area. This is particularly true in the field of race relations and racial extremism in the Army. A commander is usually the one person suited to make decisions to control racial extremism in his unit-especially because of the great impact that extremism's violent form of expression-hate crime-has on a unit's good order and discipline.

   Second, the military is a separate community, with its own norms and values. The military needs to be separate from society to maintain good order and discipline. This article uses the "institutional/occupational" thesis developed by the sociologist Charles Moskos18 to explain the notion of the military as a separate community. This article further discusses how the necessity of keeping the military as a "separate community" is especially relevant in the area of race relations.

   Both of the above notions justify the judiciary giving great deference to the Army's extremist policy and to commanders' local applications of it. This deference, however, is not unlimited. The fourth part of this article discusses First Amendment concerns. One concern is the possibility that the extremist policy, or local applications of it, violates the First Amendment because it is a form of "viewpoint-based" discrimination.19 The

   Supreme Court ruled viewpoint-based discrimination unconstitutional in R.A.V. v. City of St. Paul.20 This article contends that the policy is not unconstitutional generally or in local applications, if a commander can link the rationale for prohibiting certain forms of extremist speech or conduct to the speech or conduct's "secondary effects" on good order and discipline.

   The fourth part of the article also discusses another concern-that a commander may issue an order that prohibits extremist speech or conduct that is too vague or tangential to good order and discipline, because such an order could be unlawful. It examines the Supreme Court case Parker v. Levy21 to provide guidance on how to draft an order or policy that is not vague and that has a direct connection to good order and discipline.

   Lastly, this fourth part proposes a method that allows deference to a commander's need for good order and discipline yet addresses the First Amendment concerns. Legal advisors and commanders can use this method, analogized from the so-called Relford factors,22 when drafting a local extremist policy or when determining whether orders that prohibit extremist speech or conduct are lawful.

   The article's final part gives three hypothetical situations. Each scenario presents specific facts that involve soldiers and commanders at the unit level. The article suggests the correct answers to the scenarios, using the method discussed earlier to assist in formulating legal and practically sound policies. This article deals primarily with administrative remedies, and focuses on formulating policies to combat racial extremism.23

   Commanders and their legal advisors must deal with extremism rationally, but also proactively and decisively. When a command brings a soldier to court-martial for an extremist-related offense, in many ways, it is too late. By this time, a tragic crime may have occurred; the command may be inundated with media coverage, congressional inquiries, and investigators; community relations may be damaged; morale may be lowered by racial tensions and resentment; and combat readiness may have been impeded.24

   Furthermore, while many states have attacked the problem of extremist-type bias crimes through hate crime statutes,25 and while there has been

   wide media coverage of bias crimes in the United States, their actual number is extremely small compared to the total number of crimes.26 The passage of hate crime laws could actually prove to be counterproductive: the decision to charge or not to charge a crime as a bias crime is fraught with extralegal consequences. The outcome of a specifically charged bias crime, in the form of either an acquittal or conviction, has a powerful symbolism that can resonate through the community far more than in other types of crimes.27

   This article contends that prosecuting extremists, while important, is a secondary goal.28 Instead, it focuses on administrative, rather than criminal, methods to combat extremism. Therefore, it has a twofold emphasis. First, a commander and legal advisor must proactively identify racial extremism, particularly white supremacist extremism. Thus, it is necessary to discuss the history of white-supremacist extremism. Second, a commander must accomplish this end with reasonable means. This requires an examination of the relevant constitutional and military law.

2. Racial Extremism

   A. Differing Definitions

   In the Dictionary of Political Thought, Roger Scruton defines extremism as:

   sonable and rational manner. Extremists present their views in uncompromising, bullying, and often authoritarian ways.32

   Army Regulation (AR) 600-20, paragraph 4-12 contains the Army's official definition of extremist organizations and activities:33

   [O]nes that advocate racial, gender, or ethnic hatred or intolerance; advocate, create, or engage in illegal discrimination based on race, color, sex, religion, or national origin; advocate the use of 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.34

   There is a difference between the Army's definition and Scruton's, as well as George's and Wilcox's elaboration on Scruton's definition. The Army's definition does not focus on style or "taking political ideas to their limits." The regulation focuses on types of extremism, with particular attention to types that...