Why is the National Guard investigating peaceful protests?

I am a captain in the Guard, but I still have constitutional rights

People hold their hands up near a police line next to the Colorado State Capitol as protests against the death of George Floyd took place on May 30, 2020, in Denver. (Michael Ciaglo/Getty Images)

By Alan Kennedy

From Kent State to hovering helicopters, the National Guard has never had an easy relationship with peaceful protest and free speech. That was supposed to change after the murders of George Floyd, Breonna Taylor and Elijah McClain. Colorado’s top general, Maj. Gen. Michael Loh, wrote that we must “protect our fellow Americans as they exercise their right to protest.” Gen. Joseph Lengyel, National Guard chief, wrote that “everyone who wears the uniform of our country takes an oath to uphold the Constitution and everything for which it stands,” and “we cannot stand by and watch.”

So why is the National Guard investigating peaceful protests against systemic racism?

Like many others, I was tear-gassed while peacefully protesting racism and police brutality in Denver. I wrote an op-ed about it in the Denver Post. Although I am a captain in the Colorado Army National Guard, I was not on duty and not in uniform when tear-gassed. I am just one of millions of Americans who believe that Black Lives Matter and that without justice there can be no peace. Yet the military is investigating me for marching against racism and police brutality.

Within hours of writing about how public officials cannot say they support peaceful protest while police in riot gear are gassing peaceful protesters, the Colorado Army National Guard launched an official investigation of the protests and op-ed. Despite the investigator admitting I was not actually suspected of doing anything wrong, I was nonetheless questioned for hours about “the march,” why I protested, who protested with me, why I wrote about it, and if there was rioting.

Alan Kennedy, a captain in the Colorado Army National Guard, takes part in the protest that occurred on May 30, 2020, in Denver. (Courtesy of Alan Kennedy)

In response to complaints I filed with my chain of command asking why they were investigating constitutionally protected speech, two generals issued gag orders barring me from complaining to them about the  investigation. The military investigator who said that I was not suspected of anything and said he did not need proof I was off duty and in civilian clothes when I took to the streets with a handwritten sign saying “I Can’t Breathe” stopped returning my calls and emails.

Like Lt. Col. Alexander Vindman, who was marched out of the White House after testifying in President Donald Trump’s impeachment trial, my promotion has been blocked. Like Capt. Brett Crozier, who was fired after raising COVID-19 concerns, I have had my judgment questioned by senior officers for sounding the alarm about an undeniable problem.

That is not a surprise. My great uncle Milt, who fought against Nazis in the Abraham Lincoln Brigade and O.S.S. in World War II, was blacklisted as a “premature anti-fascist” after returning home. What is a shock is that this is the military’s second frivolous investigation within months.

The Colorado Army National Guard previously investigated my New York Times op-ed, in which I condemned Trump’s widely rebuked decision to withdraw from northern Syria and abandon our Kurdish allies. Despite a general’s objection to my “involvement with the New York Times,” the Army found my op-ed “did not violate any prohibitions, limitations, standards, or policies with regard to exercise of political activities, use of media or ethical standards.” However, the military did not release the report until a member of Congress intervened.

To be clear, there is nothing wrong with a part-time National Guard member writing a letter to the editor or op-ed, participating in a peaceful protest, or exercising any constitutional right, on their own time and dime. That is why investigations into free speech — yes, including criticizing Trump for threatening to “dominate” peaceful protesters — are so constitutionally appalling.

We cannot stand by and watch as our communities of color continue to be oppressed by police brutality and other inequities. We must not be intimidated by those who would silence us. And military leaders cannot say they support peaceful protest while investigating peaceful protesters.

Alan Kennedy is a captain in the Colorado Army National Guard and a Ph.D. student at the University of Colorado Denver School of Public Affairs. The views expressed are his own.

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