Podcast: “I joined the military to fight fascism” – Capt. Alan Kennedy

Courage to Resist

Alan Kennedy

by Courage to Resist

https://couragetoresist.org/wp-content/uploads/2021/09/CourageToResist_Podcast_Alan_Kennedy.mp3

Podcast: “I joined the military to fight fascism” – Capt. Alan Kennedy

National Guard Officer Alan Kennedy is challenging the constitutionality of Department of Defense order 1325.06 on the grounds that it infringes on the soldier’s right to free expression. Facing harassment, conflicting instructions, and contradictory reprimands, Captain Kennedy pushes on to protect service members rights to protest and self expression.

“It’s personal. I care deeply about our humanitarian efforts in the world. And I think we learned from the Nazis and the Holocaust that we do have to defend civil rights, human rights, and constitutional rights.”

This Courage to Resist podcast was recorded and edited by Matthew Breems. Production assistance, Stephanie Atkinson. Executive Producer, Jeff Paterson.

“I became increasingly active with the Black Lives Matter movement. On May 30th, 2020, I walked from my home…and participated in a peaceful march against systemic racism and police brutality. Toward the end of that March, the police showed up in riot gear, and without warning or provocation and in violation of the Denver Police rules on use of force, fired clouds of tear gas indiscriminately at the thousands of marchers.”

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Transcript

Alan Kennedy:
The bottom line is that I didn’t surrender all of my constitutional rights when I joined the military. And the military needs to respect fundamental first amendment rights, including the right to protest and write op-eds about the right to protest.

Matthew Breems:
This is the Courage to resist podcast. Since 2005, Courage to Resist has worked to support military resistance to illegal and unjust wars, counter recruitment, draft resistance and the policies of empire. This episode features a guest from the 30 years of current U.S. military intervention in the Middle East.

Joining me today is National Guard Captain, Alan Kennedy. Captain Kennedy attended a peaceful Black Lives Matter protest in 2020 while off-duty. Subsequently, he was reprimanded for his involvement in the protest in an op-ed he wrote. A lawyer and a public policy advocate, Captain Kennedy decided to appeal the decision, and eventually sue the National Guard for infringement of his constitutional rights.

Well, good morning, Alan. Thank you so much for taking the time to be on the podcast. We always love to get some history on all of our guests to just get a sense of who you are. Give us a little background on who you are and how you ended up joining, in your case, the Army National Guard.

Alan Kennedy:
Thank you, Matt. I appreciate Courage to Resist sharing my story. In some ways my story is unique, but in many ways it’s a story of a member of the military fighting for constitutional rights that we all have and we all should have. In my case, I joined the military in 2012. I enlisted in the Pennsylvania Army National Guard as a 28-year-old lawyer. And they didn’t have any slots for officers or for judge advocates. So, I enlisted. Went to Fort Benning for basic training. And then they had an opening for officer candidate school. So, I went to Fort McClellan for officer candidate school, and then they had an opening and in JAG, and I went to JAG school. And I’ve been in the National Guard for a little over nine years.

Matthew Breems:
So at 28, what was your primary motivation for joining the National Guard?

Alan Kennedy:
As I told my recruiter, I have had family members who served during World War II. My great uncle, Milt Felsen, was part of the Abraham Lincoln Brigade fighting against Franco in Spain, and then was recruited as one of the first members of the OSS fighting against Hitler and the Nazis. So, I joined the military to fight fascism. My recruiter didn’t know what to make of it.

Matthew Breems:
Did you feel a patriotic obligation then, or was this more of a personal conviction for you?

Alan Kennedy:
It’s personal. I care deeply about our humanitarian efforts in the world. And I think we learned from the Nazis and the Holocaust that we do have to defend civil rights, human rights, and constitutional rights.

Matthew Breems:
And so, you just felt that the National Guard was a place where you could do that and be a person that helps defend some of those rights?

Alan Kennedy:
That was my goal.

Matthew Breems:
Okay. So, walk us through some of your time in the National Guard.

Alan Kennedy:
When I was in basic training, the commanding officer had a policy that we were only allowed to have the Bible or Army publications. And my dad, a history professor, sent me Robert Caro’s latest book on Lyndon Johnson, hundreds of pages. And the drill Sergeant said, “You can’t have that book.” And I said, “Respectfully, Drill Sergeant, I can. That’s that’s my constitutional right, and your policy is unconstitutional.” They ran it up the flagpole, and they made an exception to the policy for that book and that book only. So, from that day on, I was known as “the guy with the book”.

Matthew Breems:
You have this book incident. Were you known as an agitator, or how do you think that you were viewed by the chain of command after that?

Alan Kennedy:
My battle buddies would wait until the drill sergeant was walking by and say, “Hey, Drill Sergeant, did you know he’s a lawyer?” And the drill sergeant would say, “No, he’s not a lawyer.” They say, “Yes, really, Drill Sergeant. He’s a lawyer.” And that was how basic training went. I was fortunate to make it through, and then make it through officer candidate school and then JAG school, and made the commandant’s list in JAG school and then in the advanced version of JAG school as well, receiving honors for that. And have had an unblemished career in the military until the military decided they didn’t like my participation in Black Lives Matter protests and op-eds about my decision to protest.

Matthew Breems:
We were talking before the interview that you have a history of being in protests and having a value for being an activist and a protestor. What was some of your history with being an activist and a protester before you even joined the military?

Alan Kennedy:
My mother was a leader in the early gay rights movement. And some of my earliest memories are being pushed in a stroller by my mom at Pride parades in New York City. And that really gave me a sense that constitutional and human rights don’t protect themselves, that we have to always strive to expand those rights and to make sure that we’re protecting the rights of everyone.

And so, I think in terms of my military career, it made sense that I would eventually become a judge advocate, also known as JAG. And for almost five years, I served as a trial defense counsel representing soldiers accused of crimes and punished by the command for their actions. My job was to zealously represent soldiers, which I did before various tribunals. And then after working in Pennsylvania, I transferred to the Colorado National Guard in order to start a PhD program at the University of Colorado, Denver in the School of Public Affairs. I just received my PhD, so I guess I’m now Dr. Kennedy. And now a lecturer in public policy at William & Mary.

And I’ve always served part-time in the military, one weekend a month and two weeks in the summer. And the only exception to that was when I was deployed to the Middle East. In 2018 to 2019, I was deployed with the 34th Infantry Division. I served in Kuwait, UAE, Saudi Arabia, Jordan, Syria. The portion in Syria toward the end of my deployment, I had the opportunity to go to do a mission in Syria where I met Kurdish soldiers who had fought against ISIS and who were in danger of being left behind and left to ethnic cleansing when President Trump announced that he was unilaterally withdrawing from Syria.

So after my return and after my release from active duty, the New York Times invited me to participate in a video op-ed sharing why I believed that that was immoral to abandon our current Kurdish allies. So, that came out in the New York Times, front page of the New York Times website in October, 2019. Again, I was not on orders, not on duty, and not in uniform when I participated in the New York Times video op-ed. And then an investigation was done into whether I violated any laws, rules, or policies. And the answer was no, that my New York Times video op-ed violated no laws, regulations, or policies. That should have been the end of it.

However, as the summer of 2020 approached, I became increasingly active with the Black Lives Matter movement. On May 30th, 2020, I walked from my home in North Capitol Hill in Denver, Colorado, a few blocks to the Capitol and participated in a peaceful march against systemic racism and police brutality. Toward the end of that March, the police showed up in riot gear, and without warning or provocation and in violation of the Denver Police rules on use of force, fired clouds of tear gas indiscriminately at the thousands of marchers.

So, I was among those who were teargassed. So, I wrote an op-ed critical of the use of police brutality against marchers protesting police brutality, and that op-ed appeared in the Denver Post on June 4th, 2020. Then I subsequently wrote a follow-up op-ed that was published in Colorado Newsline on July 9th once the military launched an investigation the same day that my op-ed was published.

Matthew Breems:
So, you publish this op-ed. It’s immediately flagged for investigation. And then you wrote an op-ed concerning that investigation. That’s correct?

Alan Kennedy:
Yes. And the op-ed in Colorado Newsline elaborated on why I protested and why punishing me for participation in Black Lives Matter protests is unconstitutional.

Matthew Breems:
And the National Guard reprimanded you for that protest at some point. When did you learn about that and how did that unfold?

Alan Kennedy:
The National Guard notified me of the investigation a couple of days after initiating it. And then the investigating officer… And then the National Guard reprimanded me on July 12th. They also told me that the investigating officer had found that I didn’t do anything wrong. But the Chief of Staff, Colonel Beatty, directed my commander, Major Sandrock, to reprimand me despite the fact that the investigation found that my Black Lives Matter protest participation did not violate any laws, regulations, or policies.

Matthew Breems:
So, you were simultaneously notified that you hadn’t violated any policies, but at the same time you are being reprimanded.

Alan Kennedy:
Yes.

Matthew Breems:
And what’s the logic there? What’s the legal backgrounding there?

Alan Kennedy:
The National Guard cited Department of Defense instruction 1325.06, which limits involvement in protests by members of the military. And they singled out this provision that prohibits participation in protests if violence is likely to result. And the Chief of Staff, Colonel Beatty, found violence was likely to occur because he found that violence did occur, with no distinction for the fact that the violence was actually by the police. He said that didn’t matter. And the fact that the violence was unconstitutional. He said that didn’t matter. And the fact that there was no reason to believe that government officials would violate the constitution and their own use of force policies in tear gassing peaceful protestors.

Matthew Breems:
So, the whole clause about where violence is likely to occur, he was basically stating it doesn’t matter whether the violence is from the protestors or from law enforcement, it’s that there was any violence at all.

Alan Kennedy:
Right. And he had no proof that any protestor had committed any act of violence. And in fact, the only proof that I was even there or that the peaceful protest even occurred was my own op-ed published in the Denver Post.

Matthew Breems:
So, what was your response to this then?

Alan Kennedy:
In round after round of appeals to every level of the military, I pointed out that this policy was unconstitutional. That it is vague, and there’s a long line of Supreme Court cases that defend the right to protest where… The right to peaceful protest is a fundamental constitutional right.

Matthew Breems:
So, you are working through an appeals process. At what point did you decide to file suit against some of your superior officers?

Alan Kennedy:
So, my commander, Major Sandrock, formally reprimanded me for my participation in the Black Lives Matter protest on May 30th under Department of Defense instruction 1325.06. On July 12th, the next higher commander, General Douglas Paul, the commanding general for the Colorado Army National Guard, doubled down by filing in my permanent files General Officer Memorandum of Reprimand, or GOMOR, that he announced in September and filed in December permanently, also citing Department of Defense instructions 1325.06.

And then Colonel Beatty, the chief of staff, and my supervisor, Colonel Robinson, the staff judge advocate, explicitly referenced the July 12th reprimand citing Department of Defense instruction, 1325.06 as the basis for negative ratings on my annual evaluation. And then in July, General Paul blocked me from receiving an award that every member of the National Guard receives every three years for time and service.

Matthew Breems:
And that’s July 2021, so basically a year after these events occurred,

Alan Kennedy:
Yes. We filed suit on March 16th, 2021 in federal court

Matthew Breems:
Bring us up to speed. What have been the more recent events now with this case?

Alan Kennedy:
Right. In a surprise turn of events, we won an initial victory recently. In response to our lawsuit, the military said that Department of Defense instruction 1325.06 no longer applies to National Guard members who are not on Title 10 active duty orders, which would be most members of the National Guard. And Kevin Mulcahy, the deputy director of the National Guard Bureau, wrote in a July 26th memorandum that Department of Defense instruction 1325.06 including the challenge prohibition on protest participation if “violence is likely to result” may not apply to National Guard personnel in a non-federalized duty status. Citing Mulcahy, the adjutant general of the Colorado National Guard, General Colin, wrote on July 30th, that “it was improper to investigate or reprimand Captain Kennedy for violation of Department of Defense instruction 1325.06”.

Matthew Breems:
So, that’s a pretty sweeping victory. Did you feel like that that was the end of it or…

Alan Kennedy:
Yes. My attorneys, James Brannan and Jason Steck, and I are gratified that the National Guard Bureau appears to have finally conceded that my Black Lives Matter protest participation should never have been investigated or punished. However, the military needs to address the central question and admit that the Department of Defense instruction 1325.06 is unconstitutional.

Matthew Breems:
So, in your mind, that’s really the goal of this whole lawsuit is to get this Department of Defense rule regulation abolished as unconstitutional.

Alan Kennedy:
Yes. The National Guard appears to be sidestepping the issue by suddenly saying that this regulation never applied to National Guard members without explaining why was Department of Defense instruction 1325.06 applicable to me before, and now in their response to our lawsuit is no longer applicable to National Guard members. The bottom line is that I didn’t surrender all of my constitutional rights when I joined the military.

Matthew Breems:
This has always been this conundrum to me that one of the stated purposes of our military is to protect our liberties and freedoms as citizens. But yet, as a member of those services, you’re not entitled or don’t seem to have access to those same liberties and freedoms that you’re trying to protect. Do you see any hope of that being rectified in part by this case?

Alan Kennedy:
The reason we filed suit is to more firmly establish that members of the military do not surrender all of their constitutional rights when they enlist or are commissioned. These are fundamental constitutional rights. As a part-time member of the military, if I’m on duty two days a month, it would be absurd for me to lose all of my constitutional rights for the entire month. I didn’t agree to that. I didn’t agree to lose all of my constitutional rights when I joined the military.

Matthew Breems:
Do you feel this case goes from here?

Alan Kennedy:
From here, we hope to broaden our challenge to Department of Defense instruction, 1325.06, particularly the part about the prohibition on protests “participation of violence is likely to result”. We want to continue to press our claims that this is unconstitutional both facially and as applied in my case. I happen to be an expert on constitutional law and administrative law and military law, all of the issues that are part of our case.

Matthew Breems:
Captain Kennedy, thank you so much for taking the time to be on the podcast today. Congratulations on your first victory, and good luck on your continued battle here for the constitutional rights of our service members. Thank you.

Alan Kennedy:
Thank you, Matt. Thank you to Courage to Resist for sharing my story.

Matthew Breems:
This podcast is a Courage to Resist production, recorded and edited by Matthew Breems, with special thanks to executive producer, Jeff Paterson. Visit couragetoresist.org for more information and to offer your support.

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