“There’s been too much politicization of what is and is not domestic terrorism.”
In this episode of Kash’s Corner, we discuss the National School Boards Association calling on the Biden administration to protect its members from “angry mobs,” whose actions have been likened to “domestic terrorism.”
And we also take a look at the case of Lt. Col. Stuart Scheller who has been charged with six violations of the Uniform Code of Military Justice (UCMJ) for publicly criticizing military leaders in a series of viral videos for their handling of the Afghanistan withdrawal.
Jan Jekielek: Hello everybody and welcome back to Kash’s Corner. So Kash, a couple of things I wanted to cover today. One of them is the Department of Justice responding to the National School Boards Association letter basically saying it believes there’s a threat from potential parent. The Department of Justice actually responded to this letter from the National School Boards Association saying it’s going to convene with different levels of law enforcement and discuss the issue and presumably protect the teachers and the Teachers Association. What are your thoughts on all this? This seems kind of a strange set of developments.
Kash Patel: I guess what the Attorney General is saying is that parents will take to physical violence at some of these meetings, but I don’t understand the basis for that because I haven’t seen any information to support it. If we’re going to use a national police force locally, I want to know what the intelligence or information is from the FBI who’s supposed to report to the Attorney General.
Does the FBI have information to support this allegation? Are they saying people have been threatened or they have credible reporting to say people will be threatened at parent, teacher meetings or school meetings and municipalities, which are a local matter, which are a state and county matter, not a national law enforcement matter? And if there is, then maybe there’s a basis to do that. A lot of times we do joint work that is federal and state come together to do certain law enforcement engagements when appropriate. It happens a lot.
But I’m wary of the Attorney General entering a political fray by saying, “Well, because I received a letter from the National School Boards Association, I’m going to respond publicly.” He could have taken another approach and directed the FBI to engage local law enforcement quietly and gone to them in person and said, “Do you have any merit? Do you have any information to support this accusation? And if you do, do you need funding?” So a lot of questions, probably not a lot of answers at this time, but that’s kind of where I’m at on that.
Mr. Jekielek: I was just interviewing someone who’s been active around the Loudoun County Public School Board. And this is one of the groups, [that] has been very active and agitated and I asked her, “Do you feel there’s any threat of violence or anything like that.” I haven’t seen anything like that.
Yes we’re very organized. Yes, we’re very active. It feels to the people that have been active in these situations that I’ve been speaking to as if this is kind of a stretch to attract sort of federal scrutiny.
Mr. Patel: Well, I think there’s a lot of credence to that without having access to the underlying information that I haven’t seen an uprising or a case where it merited federal national attention, God forbid, even if there was an incident at a local school board meeting, it’s a local school board meeting for local authorities and sheriffs …
Mr. Jekielek: As in there’s actually a fight.
Mr. Patel: Right. Even if that were to happen, hopefully it doesn’t, but even if that were to happen, there would be a state matter, a county matter, a municipality matter for local law enforcement. It’s not one that you send in federal agents to; that’s just not what federal law enforcement is for, unless there’s telling the nation that the problem is so entrenched from East Coast to West Coast in every municipality, like the MS-13 example, right? That we have to have a federal task force set up.
And I haven’t seen any mass breakouts of violence at school board meetings. But to say that domestic terrorism is on the rise, I think is not helpful because that crime itself doesn’t technically exist in the federal statute.
I think what the viewers need to understand from my time as a national security prosecutor and a terrorism prosecutor is that domestic terrorism isn’t a separate criminal offense. International terrorism is a separate criminal offense. Domestic terrorism, to get into the specifics, is a sentencing enhancements.
So basically you say X individuals committed a crime and under the sentencing guidelines, after they’re convicted, the U.S. government comes in and says, “We want to send some of them to even more time than normal because their activity was so unusually harmful based on the domestic terrorism sentencing guidelines.”
But the activities that people associate with domestic terrorism were also blurred now because I think there’s been too much politicization of what is and is not DT, domestic terrorism.
And I think, if we’re talking about the school board stuff and anywhere near domestic terrorism, I think we’re way off point, way off point. I think if you recall, out in the Pacific Northwest a couple of years ago in Oregon, there were a number of Americans who basically commandeered big pieces of land and said the U.S. government is not welcome here.
Those cases went through the courts and they were viewed under the light of domestic terrorism. Now I think there’s more of an application in that scenario than anything that we’re talking about with this letter.
Mr. Jekielek: So people who are advocates of critical race theory and related disciplines often have this maxim, speech is violence. And I’m wondering if this isn’t something that’s kind of playing in here.
Mr. Patel: Maybe. I think you could probably take a look at it from both sides to say if parents are just going to school board meetings to voice their opinions, that’s totally legit, especially at public schools when they want to know what their children are being taught. Totally rightfully so, right?
And if on the other side, the U.S. government has information that says, “No, this kind of behavior leads to direct violence and so much so across the country that we need to interfere or intervene,” then maybe they’re on the right. But I am likely to believe the former versus the latter.
Mr. Jekielek: So let’s jump to our second topic then today, Lt. Col. Scheller who broke rank posted a series of videos even after he was given a gag order by his bosses in the military and then was thrown in the brig. What do you think of the situation?
Mr. Patel: I’ve got a lot of thoughts so I don’t know where exactly to start. Probably, my main one is from my time in DoD and the chain of command and following the chain of command. And for a soldier, whether he’s in the right or wrong, to break the chain of command, you simply just can’t do that if you want the Department of Defense to work. Because if one soldier does it and then everybody else thinks it’s okay, and then you have 10 and 20 and a hundred—you’ve got a really big problem.
The whole purpose of the military is whether or not you believe in the orders you were given, you follow the orders you’re given. And there’s a process in place if you believe those orders are unlawful or unethical or violate some agreement. Then you go to your superior officer and you keep going up the chain.
Now I know people are like, “Oh my God, that takes forever.” Well, it might, but as a former federal prosecutor and a federal public defender, that stuff takes time. You got to do it the right way, and to break rank I think, unfortunately, even though I personally agree with him, there was a different way for this to be handled, especially since after the first incident he was instructed even by counsel, “We have to let this matter play out under the UCMJ and the military court martial system, and then speak out.”
Mr. Jekielek: Well, so let’s briefly look at what he did then. So essentially, he went on camera basically saying, “I feel like the military brass needs to take accountability for what’s happening around me here in Afghanistan.”
[Lt. Col. Stuart Scheller]: Yeah, my name is Lt. Col. Stuart Scheller, United States Marine Corps. The people are upset because their senior leaders let them down and none of them are raising their hands and accepting accountability or saying, “We messed this up.” I have been fighting for 17 years. I am willing to throw it all away to say to my senior leaders, I demand accountability.
Mr. Patel: That’s one thing I’m probably in violent agreement with him on. The military leadership has failed us and we’ve talked about it before on earlier episodes—about Afghanistan and the chairman and the Security Defense Secretary of State. I agree. They failed the American public when it comes to Afghanistan. If you leave one American behind, you failed. They left thousands.
So what he’s saying is they, the leaders of the military, should be held accountable. I could not agree more. You and I have been talking about that accountability and how we get it for some months, if not close to a year now. I was an individual who was in one of those leadership positions in the military. I was the highest ranking civilian in the U.S. DoD as its chief of staff. I get it.
But I also get that you can’t just have soldiers break rank when you want the same thing. It doesn’t work in the Department of Defense. If we had soldiers in Iraq or Syria just say, “I don’t think we should be here. I’m leaving.” The U.S. military system would literally not work. So for 98, 99 percent of those that serve, they bide by those rules.
They volunteer to serve. No one makes them go. And they volunteer to serve and I think they know that what’s asked of them is unique in a lot of instances, but they also know they can’t be political. It’s the one thing that happens when you join the services, anyone, Air Force, Marines, Army, Navy, Space Force. You cannot become political in any way.
You can do whatever you want in your private time but when you wear the uniform, you can’t go in front of a camera and say, “I think my leadership should be held accountable.” That’s just not the right way to do it.
Mr. Jekielek: Mate, I think, we on The Nation Speaks, his parents were on the show and they were basically saying he should be held accountable. I’m talking about their son. They’re both saying he should be held accountable. They’re concerned the way he was treated was kind of beyond what would be normal.
Mr. Patel: Yes, I can’t really speak to what would be and what wouldn’t be normal in this circumstance because it doesn’t rise to this national level, almost ever, right? How many times are you reading or talking about article 32 in the UCMJ and court martial proceedings? Almost never.
If you’re in that world, you might hear about it a little more, but even if you’re in the military, [you] probably don’t have much familiarity with it. So, I agree with his mother, he should be, he, Lt. Col. Scheller should be held accountable for breaking rank. And I also agree with her that the punishment should be appropriate, that it shouldn’t receive extra scrutiny just because it’s become such a national story.
But on the flip side, I also agree with people who are saying, “He made it a national story.” He. Scheller made it a national, not once, not twice, but three times with three videos after being told, initially, “You’re already getting charged with breaking rank and you can’t speak about this publicly.” And then he put that out there. I think that doesn’t help his position.
Mr. Jekielek: Well, so how does the military code work exactly in this sort of situation?
Mr. Patel: Well, So there’s this thing called the UCMJ, the Uniform Code of Military Justice and what most of our viewers may not be tracking is there’s the court system, the U.S. court system, every state has one and our federal government has a separate court system. That’s for federal crimes and state crimes, right? Bank robberies, murders, narco trafficking, fraud, conspiracy, all that stuff is over there.
If you’re a uniformed military officer, whether you enlist or become an officer, there’s a whole separate set of rules that applies to you in the military lane versus the civilian. The civilian one happens over here like we were talking about and the military lane, similarly, it says, if you break all these rules that you are now voluntarily subjecting yourself to because you are a member of the U.S. military, there is a process to adjudicate you through that system of military justice led by military judges and military tribunals.
They’re similar and different in a lot of ways. But a lot of different circumstances, like for example, breaking rank is not a legal or illegal matter in state or federal court. It doesn’t exist. But because of the way our system and the military is structured, breaking rank is a significant violation of the UCMJ and requires an adjudication through the unit UCMJ, the Uniform Code of Military Justice and a court tribunal for the military.
Mr. Jekielek: So court martial is…
Mr. Patel: I think people throw around that term a little colloquially. There’s general court marshals and specific court marshals, okay? And the simplest way to separate the two are general court marshals are what we might consider felonies in civilian life versus special court martials which we might consider misdemeanors.
Now, the variety of actions that can come under general or specific can be the same. You can be in the military and kill another member of the military. You’re going to be charged under the UCMJ and tried in military tribunal and military court proceedings under military law because you’ve subjected yourself to that by enlisting or serving.
But there are also all these other different ones that civilians are familiar [with]—desertion, leaving your company, your unit, your brigade in the field of combat is a major one,a… And then this one, breaking rank is a significant violation. It’s one that they, I believe, consider a felony level one.
So there are those differences, but where the similarities start are once you’re arrested for an allegation that you broke the UCMJ, then the proceedings are called different things but they’re sort of like they track together on a civilian court like if we start with Article 32.
So once you’re arrested in civilian court, you go to this thing called a first appearance. You go before a judge who determines real quick whether or not there’s any problems with the initial arrest— real quick. If there should be a bond posted, then different state courts and the federal courts deal with it a little differently, but you can have a probable cause hearing to determine, is there sufficient information to believe you committed the crime that they’re saying you committed?
Article 32 is the military version of that initial pre-trial hearing. So they’re saying this Lt. Col. Scheller violated X, Y, and Z of the UCMJ. He’s arrested, he’s taken to what we call the brig, which is military jail, and he’s housed, incarcerated in that brig until his hearing occurs, which is usually relatively soon.
Mr. Jekielek: And in our case it just happened today., It was a closed hearing.
Mr. Patel: Yes.
Mr. Jekielek: And he was released, but pending court-martial as I understand it.
Mr. Patel: Yes. So I think what happened today, and you’re right, is that in this instance I don’t believe detaining him, which the military judge could have done, and they do this in civilian court all the time, they detain you pending your trial, which means you’re incarcerated until your matter is totally adjudicated, be it by trial or plea bargain.
And your sentence is over. They could have done the same here, but it’s usually based on the severity of the crime and whether or not this individual who’s being alleged to have committed a crime will go out and commit another crime.
Mr. Jekielek: Now, so you said this is a very different system of justice or it’s parallel system of justice, apparently more than maybe it’s even two and a half million dollars now of money raised to kind of support his legal case. Is that going to be helpful to him in this system?
Mr. Patel: Well, yes. So like in the civilian system, you can have a civilian lawyer defend you in a military tribunal or military proceeding or a military court martial, right? And they don’t have to be a member of the military, right? Most of the time they’re not, but just like any other court proceeding, defense attorneys cost money, and the good ones cost a lot.
So, I think the two and a half whatever million it is will likely go to his defense fund and help him get great representation, which he’s entitled to. He should get the attorney he wants and it shouldn’t be prevented because he can’t afford it and hopefully they’d let him hire counsel of his choosing. And I think they already have.
Mr. Jekielek: So, and in your case, you talk often about how long these things take. You mentioned it a little bit earlier. What is the trajectory here now that this is-
Mr. Patel: Court martial proceedings? It’s like a trial in civilian court. There’s a judge. There could be a jury. There’s a defense attorney. There’s prosecutors. There’s evidence. It takes time. And the thing I agree with, and we didn’t mention this earlier is just because you’re brought up on charges doesn’t mean you’re kicked out of the military right away.
So, Lt. Col. Scheller is still a Marine. His service still counts, his time towards retirement still counts, which I think is right, because he hasn’t been convicted of anything.
Mr. Jekielek: Even though he’s been fired from his battalion..
Mr. Patel: You’re right. He’s been relieved of command, so it’s a little different. You’ve been relieved from your day to day role, but you still are a member of the United States Marine Corps and a member of the DoD. And so until, unless he’s convicted and or discharged from the military, which the court is the one who would decide to do that, a dishonorable or honorable discharge from the military for violating whatever allegations they’re saying he did, he’s going to remain in. And that takes time.
It’s like any other trial in the civilian court. It takes time to line up witnesses. There’s lots of cases before him that have to be adjudicated. I don’t think he’ll get special treatment just because he got national attention in terms of timing. And he’s not in break, he’s not in pretrial detention, right?
So he’s an individual who can live about probably on a military base where his housing is and do most of the things he was doing, go to chow hall and workout, see friends and family, and things like that. So there’s not an urgency because he’s incarcerated to have his case tried quicker.
Mr. Jekielek: You know you say that breaking rank is such a serious offense. And the people that are sympathetic to Lt. Col. Scheller, they’re like, well, he was kind of, these are extreme circumstances and they think like-
Mr. Patel: Well, they’re extraordinary times because we’re dealing with Afghanistan and other pretty intense matters, but it’s not for him to say what he said in the fashion that he said it on camera and then mandate or request that his leadership be held accountable.
There’s a way to do that under the UCMJ, under the military. I understand that people might not agree with my position on this, but having served as a civilian twice in the military and having run it literally for the Secretary of Defense, you got to follow the rules.
And I want more so than anyone, the current DoD leadership to be held accountable for their failures, not just in Afghanistan but other failures as well—China, for instance, for one Iran, another Iraq, Syria, we can go on. That accountability has to come from, I know it’s a long process, but the elections, the Commander-in-Chief, the Senate confirmation process. If there’s information that can be presented under the UCMJ about them, DoD leadership, violating the UCMJ then that should be done as well.
If it’s federal in civilian court, if there is information that any of them broke the law, then that’s another way to do it. And I know those things take time, and it’s not easy to call out the Secretary of Defense or the Chairman of the Joint Chiefs of Staff, but that doesn’t mean you can shortcut it.
Mr. Jekielek: So, a number of prominent people have said that the Chairman of the Joint Chiefs of Staff, Milley, by basically communicating with the Chinese General extensively outside of the chain of command constitutes a kind of double standard here because nothing happened to him.
Mr. Patel: Yeah, and I think that’s what ticks off Americans the most. It’s not just in this situation involving Mark Milley, it’s really anyone that’s in a position of government leadership that there’s a set of rules that applies to them. And this Lt. Col. Scheller situation seems to indicate there’s a different set of rules that applies to those who are in lower level positions where everybody else, every other day Americans.
So with the Milley thing, I totally get it. And we’ve talked about that extensively as his conduct, I believe, violates the chain of command, sidesteps the President of the United States and the Commander-in-Chief.
But again, that information has now been publicly divulged. There are more investigative processes that could happen both under the UCMJ and under the Department of Justice and those actions can be taken against him even by Congress. Congress can conduct an oversight investigation, which I’ve heard at least 50 senators inquire about, call for, write letters for, and that’s the constitutional oversight process working.
They’re looking to get more evidence. They’re looking to get records for these calls. They’re looking to get witness statements. And that’s how investigations work. And if that material bears fruit, then I would hope that either Congress would request a formal investigation under the UCMJ, maybe the military takes it up on its own or it’s referred over to the Department of Justice.
There’s a number of ways to do that now. But I agree and sense the frustration that there’s a different standard for judging him. But at the end of the day, there’s only one Secretary of Defense, there’s only one Chairman of the Joint Chiefs of Staff and they’re in charge. So they’re going to be looked at differently, whether you like it or not.
Mr. Jekielek: Well Kash, so it’s time for our shout out.
Mr. Patel: Yeah, and this week’s shout out goes to Neil. Thanks for your very kind notes or comments on Kash’s Corner. And more importantly, we read your comments and we know you asked about where to get the flag and you can get it from Etsy. And more importantly, we’re going to send you the direct links where you and anyone else can pick up the flag that you see on the episodes of Kash’s Corner.
So for everybody out there that’s watching, keep sending your comments. We read them, we respond to them, we react to them, and we appreciate your support, and we’ll see you next week on Kash’s Corner.
Mr. Jekielek: Yeah, and we’re not taking a cut from those flags at all. Yeah.
This interview has been edited for clarity and brevity.
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