(Photo from @punkproletarian Twitter account)

‘It’s not treason, it’s attention seeking:’ Former JAGs weigh in on West Point cadet

October 03, 2017 - 2:31 pm

2nd Lt. Spenser Rapone poses with a closed-fist salute and "communism will win" written inside of his cover, while in uniform on the West Point campus. 

Treason is an incredibly serious crime of betraying one's country, especially by attempting to kill the sovereign leader or overthrow the government. And now, there is chatter within the veteran community that Army 2nd Lt. Spenser Rapone could face charges on that count.

The discussion centers on numerous social media posts made by Rapone on Reddit, Twitter, and other platforms where he shows himself making political statements in uniform, disparages the Secretary of Defense, and also seems to hint at a desire to create some sort of "guerrilla warfare manual" for an upcoming communist revolution.

But how likely are treason or espionage charges? And if that's not on the table, what is?

CBS Radio's Connecting Vets reached out to former JAG officers for their statements and professional knowledge on this matter — these sources do not represent any DoD command or authority.

Question: Could Rapone face treason or espionage charges under article 106a?

"It’s not really espionage as he’s not working for a communist government, I just don't see where his actions meet the definition of those crimes," said Lt. Col. (Ret.) Joshua Kastenberg, a former USAF military judge and a law professor at the University of New Mexico.

"That's a stretch.  First of all, treason gets tossed around a lot, very cavalierly by people who don't know much about what it means.  It's been dumbed down to mean 'you did something I don't like' when it has a specific legal meaning," said Lt. Col. (Ret.) Butch Bracknell, former USMC JAG Officer.

"It’s not treason, it’s attention seeking. The Army could really play hardball and ask him to submit to a psych evaluation or ask if he can go into combat. There are many avenues the Army can take. I’m certain the Army is plotting a strategy to separate him. He had his 5 minutes of fame," said Col. (Ret.) Joseph Lamendola, former USAF/ANG JAG Officer.

"Neither the Che t-shirt, nor the "Communism will win" message, nor the Democratic Socialists Membership card amounts to an Art 106a, espionage offense.  Espionage is communicating classified information to foreign enemies of the U.S. with intent to harm the U.S. or to benefit the foreigners.  The three statements aren't even close to espionage," said Maj. (Ret.) Ken Jansen former USMC Jag Officer.

Question: If treason isn't on the table, what is?

"If the 2LT was given an order to cease and desist behavior that is contrary to good order and discipline he might be court-martialed for failing to obey a lawful general order. He might also be charged with conduct unbecoming an officer," Lamendola said.

"Wearing the Che Guevara t-shirt [how original!] with his uniform might be charged as a military offense punishable under Art 92. AR 670–1. Lt. Rapone also arguably violated the Joint Ethics Regulation, DoD 5500.07-R as holding his DSM card next to his badges on his utility uniform endorses his socialist club," Jansen said.

"For one, Article 88, his statements against Secretary Mattis and others are designed to the core to weaken the good order and discipline of the military. He put those on a public platform and it is a court martial level offense. If he gets away with this it opens the door to other service members openly attacking the president, SECDEF or other officials," Kastenberg said.

"Uniform violations, for sure. Possible violations of Army social media policy enforced as orders violations. And Article 88 for the contemptuous words he spoke about VP Pence and Secretary Mattis.  and they'll tack on a 133 charge for good measure, though it won't really enhance his punishment," Bracknell said.

Question: Officers are expected to maintain themselves in the same manner on social media as they would in public. But does "freedom of speech" apply here? And do we know if anything like this has ever resulted in court-martial?

"It's rare a guy holds himself out with a radical opinion while purposefully identifying himself with the Army. I don't know of a single appellate opinion making law on the issue of what's appropriate on social media.  I haven't even heard of a court-martial case so if it's being enforced, it's administratively," Bracknell said.

"He can raise the free speech defense all he wants, he may have sympathizers, but the Army won’t tolerate his headline-grabbing stance," Lamendola said.

Question: How might this unfold? Will Rapone face charges or be dealt with quietly?

"You'd be better off administratively separating him per DoDI 1332.30, November 25, 2013.  Enclosure (2) offers three really good reasons right off the bat for separating him. The essence of Lt. Rapone's misconduct is elevating his personal coolness over his commitment to the U.S. armed forces.  If he wanted to be part of the team, he'd wear the uniform with pride and not associate the uniform with personal causes.  Better to just get rid of him," Jansen said.

"I’m certain the Army is plotting a strategy to separate him. He had his 5 minutes of fame. It’s unfortunate his career will be squandered. The Army won’t tolerate his behavior for long," Lamendola said.

"I go into this as a former judge with the idea in this particular case that he was operating with a full deck of cards. He knew what he was doing and knew the ramifications of what he did. My feeling is most of the commanders would look for charges under a general court-martial and I think what would be most likely to happen would be a 'resignation in lieu of court-martial' or RILO as we call it," Kastenberg said.

"He's probably committed some actionable offenses, but I don't think it's court-martial material.  If I were the legal advisor for that unit, I'd advise the commander to offer him an Article 15 and then process him immediately for administrative separation, and I'd probably look to go after an OTH discharge because it's pretty clear he entered the Army without a serious intent to render serious service. I'd ensure his security clearance was suspended ... I'd recommend up the chain of command they go after him for the cost of his USMA tuition which is not a small expense," Bracknell said.