Marco Rubio is on a mission to figure out how a communist West Point graduate infiltrated the ranks of the U.S. Army — and it may end up completely backfiring.
The Florida senator and one-time Republican presidential hopeful, likely still smarting from August reports of a “death order” against him by a former Venezuelan military chief and socialist lawmaker, penned an angry letter to acting Secretary of the Army Ryan McCarthy demanding the branch nullify the military commission of 2nd Lt. Spenser Rapone, the West Point graduate, Afghanistan combat veteran, and self-identified member of the Democratic Socialists of America who posted photos of himself wearing a Che Guevara shirt under his uniform and a “Communism Will Win” sign tucked into his cover on Sept. 24.
“Rapone should be required to pay back in full the cost of his education, and the United States Military Academy should consider revoking his degree,” Rubio wrote, according to a copy of the letter obtained by Army Times. The senator also demanded that the Army release “all relevant information regarding West Point’s efforts to ensure cadets who actively support the destruction of our government do not waste more taxpayer funds or prevent a more worthy candidate from attending [West Point].”
Rubio’s fury isn’t totally unwarranted: As Task & Purpose noted after reports of veterans involved with the white nationalist and neo-Nazi groups that sparked violent clashes in Charlottesville in August, the Army’s equal opportunity manual states that “participation in extremist organizations and activities by Army personnel is inconsistent with the responsibilities of military service.” And the Pentagon’s Directive 1344.10, prohibits “partisan political activity,” including acting “in any official capacity or [being] listed as a sponsor of a partisan political club” — like the Democratic Socialists of America embraced in Rapone’s social media profiles.
But contrary to Rubio’s retro red anxiety, simply holding scary political beliefs isn’t enough to trigger an administrative separation, according to retired Col. Don Christensen, a former Air Force chief prosecutor and current president of the advocacy group Protect Our Defenders.
“Going after the political aspect of these photos is the Army’s weakest route unless he wrote something about the American Communist Party,” Christensen told Task & Purpose.
“There are different perspectives on whether ‘communism’ is a political view, and economic view, or a more philosophical view,” Christensen added. “Instead of having ‘Communism will win’ in his hat, what if he’d written ‘Free markets will prevail’? Will anyone say that’s political activity? You can view it as an economic thing.”
It isn’t the idea that’s Rapone’s problem, says Christensen, but support for a specific political organization. And because of this ambiguity, rocking a Che shirt or a hidden cover message is more likely to rise to the level of a uniform violation. “Che Guevara is dead,” laughs Christensen. “[Rapone] isn’t suggesting you vote for a particular communist party or a specific individual. He’s talking about ideas, not people, and I don’t think those are the ‘political statements’ as envisioned by DoD policy.”
Imagining a proletarian uprising against the landed bourgeoisie may not get you kicked out of the Army, but shitting all over your boss on social media certainly, might. Uniform Code of Military Justice Article 88 prohibits the troops from “us[ing] contemptuous words” against political and military officials in the chain of command — like, say, calling Secretary of Defense James Mattis “the most vile, evil fuck in the current administration,” as Rapone did in a June 8 tweet.
But whether Rapone gets the boot will depend on the nature of his commission when he took a digital swing at Mad Dog. “As long as he was commissioned officer, that would be a clear violation,” Christensen told Task & Purpose. “If he wasn’t a commissioned officer, you could still probably get him under some West Point regulation. But if I were the Army and he was commissioned, I would focus my response completely on that rather than the political stuff.”
Even if the Army does put Rapone through a judicial process in response to his political activities, Rubio has branch officials in his crosshairs. Although the U.S. Military Academy on Sept. 27 announced an investigation into Rapone regarding activities that “in no way reflect the values of the U.S. Military Academy or the U.S. Army,” Rubio expressed dismay that branch officials permitted such an “extreme embarrassment” to fester in its ranks, accusing branch officials of “ignored signs of misconduct and potential insubordination.”
“It is extremely concerning that someone who so often expressed such hostile views towards the United States’ system of government was able to obtain a commission,” Rubio wrote. “(His) revolutionary ideas were harbored long before he was commissioned as an Army second lieutenant. Were West Point administrators or faculty aware of his views and behavior?”
The answer, according to Christensen, lies with the same principle that has shaped the armed forces’ responses to phenomena like revenge porn and white nationalism: UCMJ Article 37, which prohibits military officials from shaping the enforcement and punishment of branch regulations on the platoon level. As a result, it’s up to individual commanders to keep an eye peeled for ideological outliers, from burgeoning neo-Nazis looking to recruit within the armed forces to would-be communists.
Rapone may have encountered some resistance to his ideas, but the details are unclear: According to Army Special Operations spokesman Lt. Col. Robert Bockholt, Rapone deployed to Afghanistan with 1st Battalion, 75th Ranger Regiment in 2011 before he was “removed for standards” from the regiment for unspecified reasons, according to Connecting Vets. And as Army Times notes, the removal didn’t prevent Rapone from entering West Point; he is currently assigned to the 10th Mountain Division.
If he did have a problem, Rapone was likely never rooted out because his commanding officers simply didn’t care. “I can’t imagine that it was the last day at West Point and he suddenly decided he was a communist,” Christensen told Task & Purpose. “I would say that in 2017, the average person probably doesn’t think a lot about communism, but to the degree to which it comes up, they’ll have a negative visceral reaction. But the last time I can think of this being a major problem is, say, 1988, when the ‘us vs. the Reds’ mentality really prevailed.”
Ironically, Little Marco’s temper tantrum over Rapone’s time in the armed forces may actually yield the opposite results he wanted, due to the principle of unlawful command influence (UCI). While we typically think of senior military officials as subject to UCI scrutiny (see: Marine Commandant Gen. Robert Neller in the aftermath of the “Marines United” scandal), the principle extends to lawmakers as well — which means that the political focus of Rubio’s letter may end up hurting the Army’s case against Rapone in the exact same way President Donald Trump’s campaign-trail tweets about his travel ban ended up hurting his defense before the Supreme Court.
“Anytime a senator writes a letter, that letter carries weight on that subject and it gets the DoD’s attention,” Christensen told Task & Purpose. “But the DoD probably was already focused on this. And I can guarantee that if it goes to a court-martial, his defense counsel could raise the political pressure as unlawful command influence.”
There’s already a precedent for that defense. Christensen pointed to the Air Force Court of Appeals decision in U.S. v Boyce, which in May 2017 reversed a conviction in a sexual assault case and ruled that public statements by Sens. Claire McCaskill and Kirsten Gillibrand regarding the “Marines United” scandal earlier that year created “the appearance of unlawful command influence” in the case.
“I think their decision was horribly flawed and sophomoric, and I think they’re lashing out at the Senate for meddling in military affairs, even though that’s their job,” Christensen told Task & Purpose of the Court of Appeals. “CAP told judges to look closely at UCI claims … It really depends on if [Rapone] gets a trial judge who read both the Boyce decision and Rubio’s letter, but he could certainly use this in his defense.”
Rubio clearly intended to turn Rapone’s incident into a rebuke against the favorite Baby Boomer boogeyman of socialism. But by blowing his wad over the nature of Rapone’s speech, he may have given the “commie cadet” the perfect defense — and, Christensen says, set up a conflict for the armed forces with regard to political speech in an era where, in the aftermath of Charlottesville and Marines United, most Americans are conflicted about it.
“It would have been nice if Rubio had shown the same concern about those issues than he did with [Rapone’s],” Christensen told Task & Purpose. “I don’t think a single communist rises to the same level as to those people.”