Today it was once again possible to hear both serving officers of the armed forces and the newspeople who cover them speak of their belief that military and naval officers "serve the president." This time the mention was in connection with the "discovery" that Petraeus and Odierno have decided (some time ago) that they will not vote in the national election. Odierno was taped saying that voting would be a bad idea because to do so would compromise his ability to "serve the president" whomever that might be.
It was actually a very old custom of the US Army that regular officers did not vote. My father did not vote until he retired from the Army. That custom has not been followed for a long time, but the reason that Odierno gave is not the reason that was contemplated in the past.
In days of old, it was understood that members of the armed forces served the constitution and through that instrument they served the federal union. That is quite different.
The principle is simple. The president is not sovereign. He is the instrument of the constitution as are the members of the armed forces. The president has no authority or right to order anyone in the armed forces to do anything that is unconstitutional or indeed illegal. If he does, then he need not be obeyed and such an order is proof in itself of a "high crime."
The present administration in Washington has done everything in its power to persuade that, in effect, the president IS sovereign. This is a lie and a pernicious doctrine that, if accepted, would make us all the servants of a king or perhaps a queen.
I have had old army friends argue to me that they DO think of the president as king and that they must think thusly because how else would they know whom to obey.
I think it must be said that such ideas are unworthy in those to whom the constitution and the people have entrusted so much. pl
There was a recent discussion here about putting “the classics” back into modern education. I’m seeing more of a need for basic U.S. history and old fashioned “civics.” Certainly people serving in the Armed Services should be made regularly to take a refresher course on the Constitution to remind themselves what they are protecting and defending. Members of Congress could also use such a course.
otherwise the President could pardon himself before he was impeached and removed from office and he would be in the position of being able to do no wrong.
in fact an absolute monarch can do no wrong hence the maxim “the king can do no wrong.”
Bush cold not pardon Scooter until he had been convicted.
I don’t understand this idea. I’ve never had trouble despising people even when I didn’t get to vote against them. I’ve also respected some public officials in spite of having not voted for them.
In short, whether I vote for them is only one way of showing whether I do or don’t respect someone and their opinions.
Meanwhile, it’s sad and ironic that some of the people whose job it is to defend our political process don’t feel they can be a part of it.
The DOJ is infected with those people also.
COL Lang, I have been following your blog for at least four years and have finally decided to join the dialogue in order to let you and your other readers know that I agree completely with your comments regarding members of the armed forces serving the constitution. As a serving commissioned officer I was shocked upon reading GEN Odierno’s remark, especially when you consider the number of occasions he’s either reaffirmed his own oath of office or administered it to others. I can assure you I understand my oath of office just as you did and take every opportunity to explain this concept to our citizenry wherever I go and to ensure there is no question in the minds of the officers I lead. Best regards.
PL: This is a lie and a pernicious doctrine that, if accepted, would make us all the servants of a king or perhaps a queen.
In my mind, when I read `king’ or `queen’ I quickly thought of Elizabeth II who can supposedly trace her royal lineage, her `right to the throne’, back 1500+ years.
When I think of Bush, who was `elected’ (under historically abnormal circumstances) and those who `serve’ the POTUS instead of the US Constitution, words and phrases such as `Führer’, `Reichskanzler’, and `Ein Volk, ein Reich, ein Führer!’ come immediately to mind.
If Presidents want to be regarded as sovereigns then we may want to employ an appropriate modern version of Thalavettiparothiam. Seems only fair and reasonable.
Thank you for reminding us what all too many of my fellow soldiers have forgotten – that when we raised our hands were swore to protect and defend not the President, not even the People, but the Constitution of the United States against ALL enemies, foreign AND domestic. Which would include those elected officers of government who presume to set themselves in the place of that very Constitution.
That these soldiers include the most senior officers is, of course, despicable and an indictment of the way we have chosen to select and promote our military leaders.
Col. thanks for this and related posts. Makes me think more deeply and pay closer attention to statements like those you quote. I appreciate the lesson.
At hearings, other recent appointees have made reference to their fundamental charge as ‘serving the President’. It is frequent enough to wonder if it is not, in fact, a policy of the administration to encourage or require fealty to the person rather than to the office.
Perhaps Lina is right, and this is a matter of poor education and an ignorance of basic civics. I remember clearly that my junior high school class was the first where Civic was not a required course, or even offered. At the time, I thought that everyone should simply know how democracy and government operated. I have since had time to consider and revise that opinion. We now have a citizenry that is profoundly ignorant of its rights, responsibilities, and of the operations of government. We suffer greatly for this.
It has been observed that among the many problems that Nazism bestowed upon Germany, perhaps the most significant was the alteration of the military oath. Rather than swear to the state or to the constitution, or even to the off ice of the leader, the military swore a personal oath to Hitler. Given a strong tradition of honor, and perhaps in fear for the consequences, most officers could not later bring themselves later to act contradictory to orders that were illegal, immoral, and even destructive to the German state.
The US military has a remarkable record of being nonpolitical, and of serving a civilian commander in chief. It also has a strong tradition of legal behavior. I know that the religious right is trying to make inroads that would jeopardize this status, apparently with great success at the Air Force Academy.
Reestablishment of the primacy of the Constitution and the rule of law is essential for the safety of the nation. Or we should be honest and establish an empire and appoint a Caesar.
the word “Reichskanzler” explicitly does not fit, because it is a post similar to that of the British Prime Minister, or the U.S. President – i.e. the person picked to run the executive on behalf of and responsible to the sovereign.
Thank you immensely for these words:
The president has no authority or right to order anyone in the armed forces to do anything that is unconstitutional or indeed illegal. If he does, then he need not be obeyed and such an order is proof in itself of a “high crime.”
This has been one fundamental disagreement between my beliefs and the actions of so many of our military leadership throughout the past 7 years. It seems to me that senior uniformed leaders were well accustomed to “serving the Constitution” during the Clinton-era. Since Bush’s selection to POTUS (also done extra-Constitutionally), these same leaders have shirked their duty and acted illegally by carrying forward numerous questionable orders. What we now know about the machinations of Wm. Haynes against the unified JAG Corps is the proof.
It is the DUTY of officers like Pace and Myers to oppose that which they know to be ILLEGAL instead of finding ways to make those acts legal (again, “enhanced interrogation” is the prime example). One cannot expect the colonels, majors, first sargents and corporals down the chain of command to refuse the President’s orders – that is one of the first duty’s of senior leadership. The best those far down the chain can do when confronted in this way is to seek to avoid carrying out their work (e.g. contentious objection, desertion), do what they are told in the minimum manner, or simply seek comfort in serving their comrades while cursing their situation. American soldiers are not dummies; many recognize their dilemma and must deal with their ever growing cognitive dissonance somehow (for some, it is becoming more political – witness Obama’s financial support from the military – for others, sadly, it is simply checking out of their tortured life).
I for one am glad Odierno and Patraeus are making such a “sacrifice” for their nation by not voting. That they are doing it for what I consider to be transparently selfish, ego-inflating and wrongheaded reasons (“serve the President”) serves to further illuminate their professional failure as you point out. It also highlight’s their cowardice in that now they have a pre-made excuse to “serve” a new administration that, given their temperament and personae, they would not have ever voted for.
In a perfect world, the nation’s most senior military leaders will be held to account for failing their duty and their subordinates. Sadly, in our world today, they will simply continue to live, for the rest of their lives, on the government retirement (dole) – earning more than 90% of their fellow citizens for simply doing nothing (while in many cases, earning many multiples of that retirement by schilling for defense-connected industry).
Thank you again for this post and for this exceptional “Committee of Correspondence.” It is a thoughtful haven for the many who still serve the Constitution – and not the “Sovereign”.
Seems to me this is an area in which some latitude is required.
For instance, one could criticize Colonel Lang’s father for not voting (and thereby not “doing his civic duty”) based on the clearly fair idea that he could vote any way he wished so long as he dutifully carried out every lawful order of whoever won. So it would seem that by his saying he “didn’t vote” this was really just shorthand for his saying that he didn’t even want to start thinking in partisan terms, which of course is emminently honorable.
And I suspect if pressed something similar may be true for those who say they “serve the President.” I.e., what they’re really meaning is that they serve the *office* of the President, not the men or women who inhabit same. That is, by saying “the President” they are using the term more colloquially.
Nevertheless, such imprecision can be dangerous.
On another note however Will wrote:
“Bush cold not pardon Scooter until he had been convicted.”
And I don’t think that’s true (although Will may have made that as a statement of what he’d like to see be true.) But in any event remember Ford pardoned Nixon before Nixon had even been charged much less convicted, thus making any prosecution meaningless in a way.
(Although, one could argue, even though one has been pardoned that doesn’t mean one still can’t be prosecuted for it and a guilty verdict couldn’t be handed down, with the Judge then simply having to refuse to implement that verdict in a judgment of conviction due to the pardon. Could make a nice moral point for sure, and maybe that should have happened with Nixon. If so though it might be hard to say the same ought not have happened to Clinton too. In any event I kind of like the idea at first thought.)
Dear Sir, this question of who the military serves brings the culture wars of the United States into focus. Yesterday a Congresswoman from Minnesota called for an investigation of Anti-Americans serving in Congress. We do not need to look deeply into the past to recall the Army as under investigation for “commies and dupes” based on the same inflamatory rhetoric. In the movement to personalize the nation in the form of the President, the national service for Ronald Reagan stands as a metaphor for that movement. The tools of fear are hard at work in the service of a “Unitary Executive.” A friend has carried a small copy of the Constitution on his person for years. Yet his concerns with Islamic terrorist cause him to follow Bush blindly and to proudly distribute literature portraying Obama as a Muslim.
Abu Ghraib is the perfect example of the military system as it exists, not as we would like to imagine it. In theory soldiers have an obligation to disobey illegal orders, but in practice, disobedience comes with a heavy price.
I would be interested in hearing practical solutions.
Thank you for this insightful post. As always, it’s a pleasure having the opportunity to spend some quality time contemplating your thoughts.
I would offer two related considerations.
First, this tendency to confuse “the Constitution” and “the executive” is fundamentally un-American, and ought to be treated as such.
The military is not merely a job where one reports to a supervisory executive: it’s a calling where one serves an infinitely larger purpose, and an appropriate means to help those who serve remember what they serve would be the institution of some appropriate form of accountability, e.g., a formal reprimand to General Odierno.
Being held accountable for poor judgment really does help clarify one’s mind, and given the substantial responsibilities that come with Odierno’s position, the penalties for ill-considered words and deed should be equally substantial.
Second, what continues to astound me is how so-called Christians can place their hand on a Bible and take an oath to serve the U.S. Constitution, and then break that oath so readily, whether via sins of omission (e.g., this particular lapse of judgment by Odierno) or of commission (e.g., Bush administration policies that gut the Fourth Amendment).
Comments like Odierno’s ought to make us wonder why we allow such members of our government to behave in manners that are both un-American and un-Christian.
We, the people, deserve a lot better than this.
We have pissed away our inheritance.
This might be added to the sovereignty link:
Civics teaches slogans. We need history to understand what they mean.
Bit of trivia. The publishing history of his Institutes is interesting:
Coke was 78 when Institutes, the First Part was published. Even dead he was a pain in the ass to the Stuarts. Clearly it is necessary to be a pain in the ass; if only it were sufficient.
Apologies for excessive cut-n-paste.
Thank you Col. Lang for your civics and history lesson. Our nation’s historians have given us, in these past several years, a treasure trove of books on our founding fathers. Works have come out on John Adams, Alexander Hamilton, Benjamin Franklin, and George Washington. Gentlemen, do yourselves a favor and read anything Joseph Ellis has written on George Washington. Those of us with a few years under their belts will come away astouded at the greatness of these men, particularly the towering greatness of George Washington. In perhaps the single greatest act of statesmanship in our history Washington gave us our democracy by resigning as Commander in Chief of the Continental Army. He refused to allow his officers to make him a king or dictator. General Washington set the precedent that prisoners in our custody were to be treated humanely. Citizen Washington presided over our constitutional convention in Piladelphia. In the presidency’s first two terms, George Washington established the happy precedents by which we still run our affairs of state. He, at the evening of his life, practically alone among the planter class of Virginia, had the courage and foresight to free his slaves, thus showing his contemporaries how to avoid the bitter chalice of the Civil War.
Gentlemen, if we steep ourselves in the history of our founding period, we will realize we have lost our way during the past eight years. We are refusing to walk the paths of our forefathers. We are refusing to stand on the shoulders of greatness. We are permitting nineteen lucky thugs, and the most insidious Machiavelli of our history, the dishonorable Richard Cheney, to subvert the Constitution of the United States. Col. Lang said it best. Cheney simply does not like our present system of government. It is precicsely in times of crisis that George Washington must be our lodestar. In comparison with the Revolutionary War, the Civil War, or World War II, 9/11 simply does not stack up as a existential threat to the Republic. Yet you and I have permitted small men, the current occupants of the White House, to use the subsequest crisis atmosphere to subvert the Consitution of the United States. I for one refuse to surrender my patrimony for a bowl of porridge. Gentlemen, we need to re-dedicate ourselves to the proposition of liberty. We must respond to her clarion call. While we have breath in our bodies no king shall stalk our land. No unitary executive theory, nor signing statements, shall subvert our laws. No agency of government shall listen in on our private phone conversations. No torture-enabling memoranda, written in secret, shall destroy the garment of righteouness worn by our armed forces for 200 years — that prisoners in our custody shall be treated with humanity. We have had a remedy at our hand yet we have refused to take it up. President Bush and Vice President Cheney have commited high crimes against the Constitution of the United States, yet you and I have refused to bring them to book.
Shall we begin the process of renewal, Gentlemen, or shall the pathology of the past eight years be our patrimony?
Very sincerely yours,
John W. Waring
247 Coach Road
Cheraw, SC 29520
We thank you for the elegant intervention in this discussion.
However, it may not surprise you that I think your statement ” He, at the evening of his life, practically alone among the planter class of Virginia, had the courage and foresight to free his slaves, thus showing his contemporaries how to avoid the bitter chalice of the Civil War” is an eloquent but overly simple explanation of the occurrence of the war of 1861-1865. pl
It doesn’t strike me as unusual that in the Military, just like in most corporate organizations, it is considered politic to “accommodate” one’s Master’s little “idiosyncrasies”.
Servile you say? Many find this approach to be most rewarding.
Not honorable you say? Well, to some, honor isn’t everything.
And it would also seem that to many on that authorative, daddy-worshiping Right, bowing to one’s liege lord like the strutting frat-rat Junya, is far more preferable than to kow-towing to “just a piece of paper.”
Or am I misinterpreting this:
All hail King George and his Regent Richard!
We sheep have grown fat and must be shorn!
Sadly it appears that Petraeus and Odierno have taken their ‘oath’ they swore to the Constitution as nothing more than empty words on their parts. How can such individuals look at themselves in the mirror each morning knowing that they have betrayed the very trust bestowed upon them by the citizenry (to protect and defend our Constitution, NOT to protect and defend a temporary Caligula a.k.a. prez).
mccain uses the name patraeus as though he was part of mccain’s campaign team
i welcome the announcement that the generals will not be voting in the election
i was dismayed at mccain’s political gimmick and welcome the generals asserting their “non-patisanship” in this way
i regret that the generals will not participate in the election as citizens, but there were not many courteous ways for patraeus to escape the link that mccain worked so hard to establish
it is only recently that the military vote was braodly accepted
the right of the military voting has been as contentious as that of non-property owners, women and blacks
“In 1968, the Republican National Committee appointed absentee voting
chairmen in 45 states and the District of Columbia to register and mobilize the estimated 3.5
million military voters.89”
there is an account of the evolution of military votign as this link
VOTING TECHNOLOGY PROJECT
A multi-disciplinary, collaborative project of
the California Institute of Technology – Pasadena, California 91125 and
the Massachusetts Institute of Technology – Cambridge, Massachusetts 02139
MILITARY VOTING AND THE LAW: PROCEDURAL AND
TECHNOLOGICAL SOLUTIONS TO THE BALLOT TRANSIT PROBLEM
Col. Lang’s anaylysis is correct. Odierno’s comment is interesting; maybe he has a guilty conscience for having served and carried out the illicit orders of a “king and his court”?
A case can be made that the Iraq invasion was semi-legitimate in that the country was still reeling and worried as a result of 9/11 and its possible aftermath. The administration’s pre-invasion posturing was swallowed by most, but not all, of the public. The passage of time showed that Bush et al were lying about Iraq. Since then Cheney and his helpers have infected the discourse with the notion of the unitary presidency which, according to them, gives Bush absolute and unconstitutional king-like power. The exercise of that power has spawned much illicit activity: torture, rendition, surveillance, etc. etc..
Woodward’s book (The War from Within) is instructive about the surge, its authors and role of the “commanders on the ground”. It seems that the surge was the brainchild of civilians from AEI (yes, Keane was/is a civilian when he inserted himself into the surge debate), Cheney, and the NSC led by Hadley. The commanders on the ground opposed it. Bush/Cheney reached into ranks and pulled Petraeus from under the nose of the JCS/Centcom to lead the action in Iraq. General Schoomaker was appalled and soon re-retired. Admiral Fallon was so pissed off he resigned. Perhaps Schoomaker and Fallon realized they were given illicit orders.
We’ve heard plenty about the surge. It was supposed to offer breathing room for Maliki to get his act together. The alleged “benchmarks” that would herald progress have come and gone, mostly unfulfilled. Petraeus doesn’t say if the surge is a success or a failure; “…the security situation is fragile” as he is wont to say. We are now watching State and DOD grovel with Maliki to stay beyond 31-December-2008.
What the hell is this all about? What was the real objective of the surge: satiating Bush’s ego, clamping down on gangsters, or solidifying and protecting American oil interests? Something smells. Iraq was never the central front on terrorism; the real front is Afghanistan and that is crumbling by the minute for lack of attention. The nation is in the dark about both wars, and the current economic situation may cause both to be cancelled for lack of funds.
The soldiers, marines, sailors and airmen and women carrying the load have been poorly served; they suffer in silence while the leadership dithers. The Iraq caper and the negligence of Afghanistan have to be deconstructed to get to the truth. Punishment must be swift and severe for the commander in chief and his willing acolytes for the foolishness and illegal conduct that has wrought death, destruction, injury and the squandering of treasure. Who will be held accountable; and McCain wants to continue?
There should be a law forbidding civilians like Keane from interfering with on-going military actions; General Casey was certainly not amused by that interloper. In my judgment, the surge and Keane’s lobbying insures that Iraq will be hand-delivered to Iran soon.
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> ALL enemies, foreign AND domestic
I am in considerable awe of the other posters on this thread, but it seems to be an appropriate time to ask about something that has puzzled and worried me in the past:
What, in the understanding of you who have taken the oath, constitutes a domestic enemy? What identifies a domestic enemy, and what were you who took the oath obliged to do about such a person?
Odierno has been too busy involved in the politics of spinning the SOFA tug-of-war within the Green Zone to bother about US elections. In fact, his statement about “Iran buying votes” to influence the Iraqi Parliament re: Security Agreement/SOFA has earned him a brisk slap upside his head from al-Maliki. He is going to get his arse transferred out of the Green Zone real fast at the rate he’s going, and perhaps that will recalibrate his feelings about voting at home.
Oaths of Enlistment and Oaths of Office
The wordings of the current oath of enlistment and oath for commissioned officers are as follows:
“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).
“I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.” (DA Form 71, 1 August 1959, for officers.)
During the Revolutionary War, the Continental Congress established different oaths for the enlisted men and officers of the Continental Army:
Enlisted: The first oath, voted on 14 June 1775 as part of the act creating the Continental Army, read: “I _____ have, this day, voluntarily enlisted myself, as a soldier, in the American continental army, for one year, unless sooner discharged: And I do bind myself to conform, in all instances, to such rules and regulations, as are, or shall be, established for the government of the said Army.” The original wording was effectively replaced by Section 3, Article 1, of the Articles of War approved by Congress on 20 September 1776, which specified that the oath of enlistment read: “I _____ swear (or affirm as the case may be) to be trued to the United States of America, and to serve them honestly and faithfully against all their enemies opposers whatsoever; and to observe and obey the orders of the Continental Congress, and the orders of the Generals and officers set over me by them.”
Officers: Continental Congress passed two versions of this oath of office, applied to military and civilian national officers. The first, on 21 October 1776, read: “I _____, do acknowledge the Thirteen United States of America, namely, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, independent, and sovereign states, and declare, that the people thereof owe no allegiance or obedience to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him; and I do swear that I will, to the utmost of my power, support, maintain, and defend the said United States against the said king, George the third, and his heirs and successors, and his and their abettors, assistants and adherents; and will serve the said United States in the office of _____, which I now hold, and in any other office which I may hereafter hold by their appointment, or under their authority, with fidelity and honour, and according to the best of my skill and understanding. So help me God.” The revised version, voted 3 February 1778, read “I, _____ do acknowledge the United States of America to be free, independent and sovereign states, and declare that the people thereof owe no allegiance or obedience, to George the third, king of Great Britain; and I renounce, refuse and abjure any allegiance or obedience to him: and I do swear (or affirm) that I will, to the utmost of my power, support, maintain and defend the said United States, against the said king George the third and his heirs and successors, and his and their abettors, assistants and adherents, and will serve the said United States in the office of _____ which I now hold, with fidelity, according to the best of my skill and understanding. So help me God.”
The first oath under the Constitution was approved by Act of Congress 29 September 1789 (Sec. 3, Ch. 25, 1st Congress). It applied to all commissioned officers, noncommissioned officers and privates in the service of the United States. It came in two parts, the first of which read: “I, A.B., do solemnly swear or affirm (as the case may be) that I will support the constitution of the United States.” The second part read: “I, A.B., do solemnly swear or affirm (as the case may be) to bear true allegiance to the United States of America, and to serve them honestly and faithfully, against all their enemies or opposers whatsoever, and to observe and obey the orders of the President of the United States of America, and the orders of the officers appointed over me.” The next section of that chapter specified that “the said troops shall be governed by the rules and articles of war, which have been established by the United States in Congress assembled, or by such rules and articles of war as may hereafter by law be established.”
Although the enlisted oath remained unchanged until 1950, the officer oath has undergone substantial minor modification since 1789. A change in about 1830 read: “I, _____, appointed a _____ in the Army of the United States, do solemnly swear, or affirm, that I will bear true allegiance to the United States of America, and that I will serve them honestly and faithfully against all their enemies or opposers whatsoever, and observe and obey the orders of the President of the United States, and the orders of the officers appointed over me, according to the rules and articles for the government of the Armies of the United States.” Under an act of 2 July 1862 the oath became: “I, A.B., do solemnly swear (or affirm) that I have never borne arms against the United States since I have been a citizen thereof; that I have voluntarily given no aid, countenance, counsel, or encouragement to persons engaged in armed hostility thereto; that I have neither sought nor accepted nor attempted to exercise the functions of any office whatsoever under any authority or pretended authority in hostility to the United States; that I have not yielded voluntary support to any pretended government, authority, power, or constitution within the United States, hostile or inimical thereto. And I do further swear (or affirm) that, to the best of my knowledge and ability, I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.” An act of 13 May 1884 reverted to a simpler formulation: “I, A.B., do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This version remained in effect until the 1959 adoption of the present wording.
Germany made sure after WW2 that the new army was loyal to the constitution first.
The oath directly for Hitler had been used as excuse by many Wehrmacht officers.
It’s not good to have an army that’s loyal to a person instead of to society and its constitution.
re a priori pardon- my bad. i have gotten sloppy lately. the first rule of statutory interpretation is to go first read the statute or in this case the Constitution and them the case law that has come up surrounding it. the so called annotations.
i just shot from the hip.
we all knew that Scoter has W’s pardon in his backpocket. First the commutation of the active time. The rest will come later as a Xmas present to Irving Lewis Libby, Jr.
“What, in the understanding of you who have taken the oath, constitutes a domestic enemy? What identifies a domestic enemy, and what were you who took the oath obliged to do about such a person?”
This is a profound question that I really didn’t examine too deeply during my active duty period as most of my stations were in ROK and FRG. I can’t speak for those among the older generations (especially those who had served in Vietnam), but as one of the first generation AVF, the Kent State shootings were still indelible in my mind. Most of us who had followed the My Lai courts martial understood command responsibility and accountability. I suppose it’s pretty easy to delineate patently unlawful orders in hypothetical scenarios where a refusal to obey would be legitimate (e.g., if the President ordered the execution of opposition members of Congress). However gray area emerges when you’re dealing with civil disturbances as well as transnational threats such as terrorism. Junior officers have been and will always be conditioned to obey superior orders. While the UCMJ allows one the right to disobey unlawful orders, it’s not very clear as these are merely broad guidelines (e.g., Orders must be issued by legally appropriate authority. Orders must not violate constitutional rights. Orders must be related to military duty).
However this is a question that the Army officers like Eisenhower had grappled with during the Great Depression. When Hoover ordered the Army to “evacuate” the Bonus Army in 1932, MacArthur personally took command of the operation as he had viewed the veterans as communists. Eisenhower who’d been on MacArthur’s staff had very strong reservations about the entire operation. Patton whose 3rd Cavalry Regiment had charged against the marchers had written in his diary that it was “a most distasteful form of service.” However, they obeyed the orders even though many among the Bonus Army had fought alongside these officers (e.g., Joe Angelo who had saved Patton’s life in WWI). In addition MacArthur probably issued unlawful orders to the 12th Infantry as he disobeyed Hoover’s order to halt the operation.
My suspicion is that most junior officers and SNCOs today would have enough sense to disobey clearly unlawful orders such as indiscriminately shooting unarmed crowd of civilians or detaining members of Congress illegally. However,there are scholars who have questioned whether we need to update the Posse Comitatus Act in this era of homeland defense against transnational threats. From my perspective as a civilian today, my rather loose definition of “domestic enemy” would be those who would attempt to violently overthrow the constitutionally legitimate government of the United States. In addition, violent secessionist groups or even states would fall into this category as well.
Neil Richardson writes:
“I suppose it’s pretty easy to delineate patently unlawful orders in hypothetical scenarios where a refusal to obey would be legitimate (e.g., if the President ordered the execution of opposition members of Congress). However gray area emerges when….”
Probably gray area emerges in most situations one can realistically imagine, which leads to a question for anyone with any knowledge of military law: What role is played by a soldier’s state of mind in refusing an order based on their sense that it is unlawful or unconstitutional?
That is, if a soldier disobeys an order later held lawful, if it is also found that he absolutely believed it to be unlawful what’s the effect of that latter finding?
I sense that unlike so many crimes in the usual criminal sphere it does not utterly absolve the accused of the offense but instead just goes to mitigate his or her sentence, but I don’t know for sure.
1. On the topic of oaths of office:
“Walter Burkert has shown that since Lycurgus of Athens (d. 324 BC), who held that “it is the oath which holds democracy together”, religion, morality and political organization had been linked by the oath, and the oath and its prerequisite altar had become the basis of both
civil and criminal, as well as international law.”
I have always believed that the oath of office I took — to defend the Constitution — was binding on me till death, if not after that.
2. The folks at Montpelier, James Madison’s home, are doing a tremendous job restoring his house as a national museum and providing civic education programs. They have many generous and enthusiastic supporters and I recommend a visit.
For their Center for the Constitution:
1. Bush has commuted Libby’s sentence, not pardoned him. Commutation cannot occur without a prior conviction. Though pardon remains ‘on the table’. Bush doesn’t strike me as the type to reward employees for a job well done, so a pardon will certainly represent fulfillment of a quid pro quo for Libby’s continuing silence.
Ford pardoned Nixon (as mentioned above) for crimes he was not yet indicted for. But those crimes were glaringly obvious, and an indictment was a foregone conclusion by the time of Ford’s institution.
2. I believe that it is entirely appropriate for US military officers and enlisted men to hold political views, to vote, and to participate in electoral activities – as private citizens. I also understand and appreciate the point of views of officers to not register to vote or to vote in elections, as a means to demonstrate and ensure their (and the military’s) neutrality in elections.
However, it is inappropriate for those in service to attend election events in uniform, to allow their station and rank to be employed in the media or election materials in association with an election, and to seek to influence those of lower rank.
We need to look to John Ashcroft’s example in refusing to usurp his Acting-AG’s authority or to violate the Constitution by authorizing Bush’s continued telecom tapping activities.
Upholding the Constitution against the intentions of superiors and other powerful persons takes guts and integrity, and is not without substantial consequences. But it must be done. Pray we all have the fortitude, should the responsibility fall to us.
To dispose temporarily of one element raised by comments on this Post, the efficacy of Preemptive Pardons is still a subject for legal argument. Interesting that the legal profession and Constitutional scholars continue to duck the issue leading to potential problems down the road. My view is that a pardon cannot be issued prior to the filing of charges even if no conviction at time of issuance of the pardon. Also NO self-pardoning.
As to the oath sworn by the officer corps and flag ranks, the Petraeus and Ordienero positions again just shows why it is of growing importance that the officer corps be purged in any way possible of the Praetorian Guard thinking that now pervades it. Of course we all know the real Praetorian Guard is the US Secret Service.
In my judgement officers failing to vote have failed their oaths to the Constitution and because of adoption of faulty paradigms and premises fail to see that elimination of those with real knowledge as votes enhances the liklihood of the demise of the Republic. NO DUCKING THE OBLIGATION TO VOTE.
This reminds me of a story that Gen. Jonathon Mayhew Wainwright supposedly
told to one of his junior officers (which I believe was during Japanese
Gen.Wainwright attributed this thinking to Gen.Malin Craig
If a general in a position of personally dealing with a President and
disagreeing with the Constitutionality of an order he had one choice to
leave his stars on the Presidents desk
A lot of my friends do not to this day understand my admiration for “the old
Army” – Mr. Stress
I’ve not served in the military, nor in fact am I an American, but I think I can give a partial answer.
The oath is to the constitution itself, including its amendments, including the 1st and 14th. That severely constricts the range of possible domestic enemies. To give an obvious example, the oath imposes a duty to refuse as illegal any order to shoot someone on the basis of his/her skin color or religion.
(of course common decency imposes duties of its own)