Everything you didn’t know about his 2009 Soldiers Amendment
On July 20, 2009, the Matthew Shepherd and James Byrd Hate Crimes Prevention Act (HCPA) was being debated on the Senate floor. After making standard Congressional small talk, Jeffrey Sessions of Alabama introduced Amendment 1616 to the proposed HCPA, what he called “The Soldiers Amendment.”
It is distinct from the hate crimes legislation we have been discussing. It expands the protections that the United States of America provides to its soldiers. Remember, we provide protections now to Federal officers, postmen — any Federal officer of the United States is protected, and so are soldiers in certain circumstances.
There was very little discussion of the Soldiers Amendment following Sessions’ remarks, and it was passed unanimously to become part of the HCPA. As part of the 2010 National Defense Authorization Act, the HCPA was passed into law on October 28, 2009. Session’s amendment was entered into it as Section 4712.
HCPA, aka “Pub. L 111–84, div. E,” expanded federal protections to sexual orientation, gender identity, disability, …and military service.
At the time, media attention focused on the expansion of civil rights the HCPA provided based on a victim’s actual or perceived sexual orientation or gender identity as well as disability. The Soldiers Amendment received little to no public interest. The Department of Justice, which Sessions led as Attorney General for 636 days under President Trump, never seems to have been very aware that they were tasked with protecting military families from hate crimes.
Here’s everything you didn’t know about Jeff Sessions’ Soldiers Amendment.
What does the Soldiers Amendment do?
Sessions described his amendment as “distinct” from the HCPA, but the effect is very similar and in fact it was attached to the HCPA itself rather than the wider NDAA. The Soldiers Amendment prescribed fines and imprisonment for
Whoever knowingly assaults or batters a United States serviceman or an immediate family member of a United States serviceman, or who knowingly destroys or injures the property of such serviceman or immediate family member, on account of the military service of that serviceman or status of that individual as a United States serviceman, or who attempts or conspires to do so.
In other words, if someone hurts a person in a military family because they are in a military family then it is a special kind of crime. Department of Justice officials and FBI agents I have spoken to about the law have insisted that Section 1389 does not technically create a “hate crime” per se, though they admit the law does do …something. It is unclear what that something is. If you read the law closely, however, what does become apparent is that the bill’s flaws are more clear than its strengths.
For one, the HCPA places the burden of criminality upon the perpetrator. To qualify as a hate crime, the victim’s actual membership in a protected class (race, religion, gender, etc.) doesn’t actually matter, only the perpetrator’s perception thereof. However, the Soldiers Amendment only says “on account of,” a more ambiguous phrasing than the HCPA’s “actual or perceived” language. Read strictly as-is, the law could be interpreted to only rise to the level of a hate crime if the victim is actually in a military family.
Another problem with Sessions’ Soldiers Amendment is the termination of its protections five years after a member’s “discharge.” First of all, civil rights laws attach to immutable characteristics that have no expiration date, even if those characteristics are internally possessed and discreet, like sexual orientation. Military service is a matter of permanent public record, and it is hard to imagine hate-fueled attacks of any kind being subject to some statute of limitations held by attackers. Besides, this provision needlessly excludes the largest demographic in the military community that is at the highest risk of depression and suicide — older veterans.
When does the Soldiers Amendment apply?
To figure out when a person is protected under the Soldiers Amendment, you have unpack a few legal definitions. The protected subject of the Soldiers Amendment is a “serviceman” (a term used only three other times in standing federal law), which is defined as “a member of the Armed forces” to include “the 5-year period beginning on the date of the discharge from the Armed Forces.”
The Soldiers Amendment contains no language restricting it to “regular” members (see 10 USC. § 101(b)(12)), nor are “reserve” members excluded (see 10 USC. § 101(c)(6)). Its statutory jurisdiction therefore must be inclusive of all federal military personnel. That leaves open the question of when an individual ceases to be a member of the Armed Forces.
Some servicemembers aren’t aware that their service does not end at a discharge or resignation unless it falls outside theirMilitary Service Obligation, or MSO. According to DOD Instruction 1304.25, section 3, “Every person who enters military service by enlistment or appointment incurs an MSO of 8 years from that entry date.” An enlistment contract, for example, may include two years of active duty service, but the remaining six will be served in inactive status, during which the person remains a servicemember. The DoD Instruction goes on to define discharge as “Complete severance from all military status gained by an enlistment, appointment, or induction.”
In my case, for example, I would have been protected under the Soldiers Amendment starting the date I signed my enlistment contract in 2000. The way the bill is worded, I could be deprived of that protection if the FBI assumed it expired in 2011, five years after I was “discharged” 2006. However, I was not actually discharged until eight years from my enlistment date, in 2008, so my Section 1389 protection did not actually expire until 2013. If I were assaulted on account of my military service in 2012, I might be denied protection if the FBI were to improperly interpret the law. Of course, that assumes the FBI knows the law exists.
What was the intent of the Soldiers Amendment?
The “intent” of the bill was permissive — all servicemembers, and their immediate family, through five years after discharge. The intent was so permissive, in fact, that it included the desire to create for our military an “equal footing” to those individuals with protected classes.
On July 20, 2009 Senate floor debate included Sessions’ stated intent;
This amendment would create a new Federal crime which puts members of the U.S. military on equal footing with other protected classes.
One of the most conservative Senators in recent memory, who would later go on to be appointed Attorney General, explicitly called for making our military something like a protected class. Although it may seem alarming, at the time it barely made a ripple.Sen Carl Levin (D-MI) agreed with Sessions, saying
we should do everything we can when it comes to our criminal laws to protect [our men and women in uniform] and their families. This amendment is aimed at doing this. It would create a new Federal crime.
Sessions’ Soldiers Amendment passed without a single Nay vote and officially became part of the HCPA on the very same day it was introduced on the floor. Not only did it make it a federal crime to attack military families, it was intended to go even further, to make the military a kind of protected class, if not an actual protected class.
If you’re asking yourself whether any of this is even necessary, then you’re not alone. Nobody knows if there are any hate crimes being committed against military families, but that’s the problem — nobody knows, including maybe the agencies tasked with enforcing the law.
The Seal of the Federal Bureau of Investigation
Most civil rights laws create a duty for executive agencies to collect and share data on crimes reported and prosecuted under their jurisdiction. The HCPA included amendments to the Hate Crimes Statistics Act that made it a requirement for the FBI and DoJ to report crimes against sexual minorities and individuals with disabilities. For whatever reason, no such requirement was created to enforce and track crimes under the Soldiers Amendment.
Is the Soldiers Amendment a solution without a problem? Sessions didn’t think so, saying “we have had problems with these assaults on our military officers.” But without adequate enforcement from DoJ, we cannot know the full extent of anti-military animus. Regardless of any revisions or amendments I might wish to make to the Soldiers Amendment, there is no reason a standing federal law should go unenforced. The fact that the law protects our troops (and some of) our veterans just makes it all the more disappointing.
