Can the Military Recall Retired and Ex-Military Members Involved in the Capitol Insurrection and Try Them Under Military Law?
The January 6, 2021 Capitol Insurrection has left a permanent mark on the history of the United States government. In light of this event, a crucial question arises: Can the military recall retired and ex-military members involved in the insurrection and charge them under military law?
Military Recall Procedures
According to legal standards, the military has the authority to recall retired and inactive military members under certain circumstances. This process is part of regular Army exercises, such as "Certain Sage," which evaluates the procedure for activating these individuals.
Inactive Ready Reserve members, who are former military personnel who can be recalled to active duty, can also be reactivated in times of crisis. However, the likelihood of recalling an ex-military member who has not served in the Ready Reserve and does not receive military benefits, such as VA disability pensions, is extremely low. There are specific scenarios where recall is possible, making it an option for some veterans.
The Case of Retired Members
Retired military personnel are still subject to the Uniform Code of Military Justice (UCMJ) and can be called to active duty if they are involved in acts that occur after their retirement. This has been affirmed by the U.S. Supreme Court, which refused to hear a case challenging the practice in 1989. In 2019, a federal district court judge issued a memorandum opinion stating that such a court-martial is unconstitutional if the offense does not involve the "good order and discipline" of the military. However, this decision appears to be an outlier and is contrary to established precedent.
Legal Implications for the Insurrection
Given the nature of the Capitol insurrection, it is highly probable that any retired military member involved would face court-martial. The offenses associated with the insurrection, such as insurrection itself and storming the Capitol, would almost certainly be seen as a breach of the "good order and discipline" of the military. Therefore, while it is theoretically possible to recall and court-martial a retired member, it would be more straightforward to try them through the federal system.
The primary issue with the military route is the potential for constitutional challenges and the uncertainty of legal interpretations. The current legal framework allows for these actions, but the outcome remains speculative until further legal clarifications are made.