Military could bring retirees back to face charges after Capitol riot

WASHINGTON — A retired Air Force officer wearing body armor and clutching plastic restraints in the Senate chamber has prompted questions about if and how retired veterans could be summoned and tried by the military justice system for their alleged role in the riot at the U.S. Capitol on Wednesday.

Larry Rendell Brock, a retired Air Force lieutenant colonel, was arrested in Texas and charged with one count of knowingly entering a restricted building and one count of violent entry and disorderly conduct, civilian prosecutors said.

His arrest has led to debate on the practice of mustering retirees to face crimes out of uniform, a practice some legal experts have called unconstitutional.

The Army is also investigating an active-duty officer who attended the pro-Trump rally for any potential misconduct as defense officials grapple with involvement in the political event that morphed into a deadly mob.

Rep. Ruben Gallego, D-Ariz., a member of the House Armed Services Committee, said he has pressed the Pentagon to explore its options after a New Yorker story disclosed Brock's service history.

There are broader laws that service members follow, Gallego said, and it could widen the punishment options for active duty or retired service members who participated in the riot, in which a police officer died. Four civilians also died in the confrontation - one shot by a police officer and three in medical emergencies.

"I want it to be a lesson that there are severe consequences for this kind of stupidity, to overthrow the government based on lies and conspiracy theories," Gallego told The Washington Post on Monday.

Some military retirees can be brought back and tried in the military justice system, but it matters when and how they left the service, said Rachel Vanlandingham, a former Air Force attorney who is a professor at the Southwestern Law School in Los Angeles.

Any veteran who retired after 20 or more years of active-duty service can be recalled and put in the military justice system, even for crimes committed after they hung up their uniform, she said. It rarely occurs and is up to the service secretaries to pursue, but it has been used more frequently in recent years, she said. About 2 million retirees are subject to this rule, she previously said.

The cases tend to be for allegations of crimes such as rape but are out of the Justice Department's jurisdiction, she said. A retired Marine, Steven Larrabee, was recalled and sentenced in a military court for sexually assaulting an employee of a bar he managed in Japan in 2015, The Military Times reported, which occurred after he left the service.

The Supreme Court affirmed the military's right to punish retirees in 2019, but military courts have questioned the constitutionality of the practice.

Service members who retire as reservists, such as Brock, are not subject to this recall practice, Vanlandingham said. Reservists serving also cannot be summoned in this manner unless they committed a crime while in uniform.

Vanlandingham said the system is archaic and relies on the idea that retirees draw a retainer in case they need to be mustered en masse in an invasion-type crisis, but now, the Reserve and National Guard components are robust enough to fill that role without relying on retirees who have long since left the military, she added. They draw a pension for past duty, not potential future service, she said.

The differing rules for certain retirees makes the system unconstitutional, said Vanlandingham, adding that it is unnecessary for this particular instance at the Capitol.

They should be tried in federal court, she said.

It is unclear how many military retirees, reservists and active-duty service members took part in the riot. The Pentagon referred questions to the individual services.

The Army is investigating the actions of Capt. Emily Rainey, a psychological operations officer who attended the protest. Officials are probing whether she brought fellow soldiers with her to the event, but they have no indication that she entered the Capitol, officials said.

"Part of the investigation is gathering the facts to determine if she broke any laws or violated any regulations," said Maj. Dan Lessard, a spokesman for the 1st Special Forces Command at Fort Bragg, N.C., where Rainey is assigned. Her duties involve using psychology to use information, and misinformation, to influence the emotions and actions of enemies.

Rainey resigned from her commission in October after she was charged by police last year for tearing down caution tape at a playground that restricted access because of the coronavirus pandemic, The Pilot reported, and posted a video of her doing so on social media. She remains on active duty until a scheduled departure date in April, Lessard said.

She was punished for the playground incident, he added. Rainey could not be reached for comment. She told The Associated Press that she led a group of 100 people to the event Wednesday but did not take part in the riot.

Gallego said he would explore options for the Defense Department to strip pensions from Brock or any other retiree found guilty of charges in the riot, though Vanlandingham said that probably is not possible.

She also said "Brock became a domestic enemy on Wednesday, which to me is such a betrayal of the uniform he wore, to the oath to the Constitution and to those who wore, and continue to wear, their Air Force uniforms with honor."