Why were you afraid to reveal your name? You knew that what you were doing was one of the quickest ways to earn a court-martial if your superiors ever found out that you were the author of this article! The military is not a place for political activism. Perhaps you would have done better to have ran for political office, instead of trying to be an Annapolis armchair-president. If you want to be president, go for it, but at least wait until you get out of the navy before you start trying to rock the boat! Sure, if you see a Mi-Lai massacre, or an Abbu Ghraib going on, then by all means, but when dabbling in such gray areas as the "correct balance of power", I suggest that if you want to keep a long and happy career in the navy, you might consider abstaining from presidential politics for a few more years.

If the issue is waiting for a judge to rule, forget it.

Most people do NOT recognize judges are NOT the only people to interpret the Constitution.

In America, the Constitution is the PEOPLE'S LAW. It is the only law voted upon directly.

If people vote on it they should/must understand that for which they vote.

Understanding is interpretation. The people's vote is that of the PRINCIPAL and empowers ALL AGENTS, those who represent them. This does not take a law degree. Any member of congress can interpret the Constitution. The intent is listed in the Federalist Papers.

Virtually 75% of revenue to the central government is for non-Constitutional items.

In this day and age, if I were still in the military, I would not necessarily disobey and order but I would go on record that I was against the action if unconstitutional.

Congress must act...

FYI:

Federalist No. 78 excerpt--in reverse.

“But in regards to the interfering acts of a superior and subordinate authority of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority... They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental... [O]r, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.…

‘There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercise, is void. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid….”

* Source: Federalist No. 78. Differs from the original--the text is reversed from last to first.

And one more:

The Law of Agency:

The Law of Agency

“How full soever the power of any person or people may be, he or they are obliged to give only so much to their delegates, as seems convenient to themselves, or conducing to the ends they desire to attain; but the delegate can have none except what is conferred upon him by his principal…. (The delegates) are to be regulated by the law, not the law by them. They are considered only so far as they are conformable to the law from which they receive all the strength that is in them, and can confer none upon it… And if I am free in my private capacity to regulate my particular affairs according to my own discretion, and to allot to each servant his proper work, why have not I with my associates of freemen… the like liberty of directing and limiting the powers of the servants we employ in our public affairs?… Tis impossible that the public should depend absolutely upon those who are nothing above other men, except what they are made to be for, and by the public. The restrictions therefore of the people’s liberty must be from themselves, or there can be none.”
Source: Pg. 563, 564, Discourses Concerning Government by Algernon Sidney, Liberty Fund, ISBN 0-86597-089-1.

Constitutionalism is a fundamental of the Law of Agency

“As there are certain rights of freemen, which are inalienable even by themselves; and others which they do not mean to alienate, when they enter into civil society. And as power is naturally restless, aspiring and insatiable; it therefore becomes necessary in all civil communities (either at their first formation or by degrees) that certain great first principles be settled and established, determining and bounding the power and the prerogative of the ruler, ascertaining and securing the rights and liberties of the subjects, as the foundation stamina of the government; which in al civil states is called the constitution, on the certainty and permanency of which, the rights of both the ruler and the subjects depend; nor may they be altered or changed by ruler or people, but by the whole collective body, or a major part at least, nor may they be touched by the legislator; for the moment that alters essentially the constitution, it annihilates its own existence, its constitutional authority. Not only so, but on supposition the legislator might alter it; such a stretch of power would be dangerous beyond conception; for… the people might be deprived of their liberties and properties, and the parliament [or any of the 3 branches of government—lf ] become absolute and perpetual; and for redress in such cases… they must resort to their native rights, and be justified in making insurrection. For when the constitution is violated, they have no other remedy; but for all other wrongs and abuses that may possibly happen, the constitution remaining inviolate, the people have a remedy thereby.”—America’s Appeal to the Impartial World, Moses Mather, 1775, Political Sermons of the American Founding Era, pg. 456, 457.

“It is beyond dispute that the inferior is blessed by the superior.” Hebrews 7:7

“I tell you the truth, no servant is greater than his master, nor is a messenger greater than the one who sent him.” John 13:16

The government or administrative authority of the state, is that portion only of the sovereignty, which is by the constitution entrusted to the public functionaries: these are agents and servants of the people… The sovereignty, though always potentially existing in the people of every independent nation, or state, is in most of them, usurped by, and confounded with, the government.

On the contrary, when the constitution is founded in voluntary compact, and consent, and imposes limits to the efficient force of the government, or administrative authority, the people are still the sovereign; the government is the mere creature of their will; and those who administer it are their agents and servants. From hence it will appear that the nature of any government does not depend upon the checks and balances which may be provide by the constitution,…; but it depends upon the nature and extent of those powers which the people have reserved to themselves, as the Sovereign…Pg. 28

Neglect of the principles of the constitution by the public functionary is a substitution of aristocracy, for a representative democracy: such a person no longer regards himself as the trustee, and agent of the people, but as a ruler whose authority is independent of the people, to whom he holds himself in no manner accountable; and he so degenerates into an usurper and a tyrant. Pg. 42

Source:
View of the Constitution of the United States with Selected Writings Of St. George Tucker, Foreword by Clyde N. Wilson, Liberty Fund, 1999, ISBN 0-86597-201-X
(H)is view of the federal government as an agent of the sovereign people of the several states, and not as the judge of the extent of its own powers, was buried by the outcome of the Civil War. Pg. Vii

The so-called ‘law of agency,’ however, would put sovereignty on the side of the states because the central government was created by the states and they remain, therefore, the primary agents. This is similar to the argument of John C. Calhoun that follows:
“..[I]s this a Federal Union? a Union of states, as distinct from that of individuals? Is the sovereignty in the several states, or in the American people in the aggregate?... The terms Union, Federal, united, all imply a combination of sovereignties, a confederation of states. They are never applied to an association of individuals... I maintain that sovereignty is in its nature indivisible. It is the supreme power in a state... It is a gross error to confound the exercise of sovereign powers with sovereignty itself, or the delegation of such powers with the surrender of them. A sovereign may delegate his powers to be exercised by as many agents as he may think proper...; but to surrender any portion of his sovereignty to another is to annihilate the whole. The Senator from Delaware calls this metaphysical reasoning.. which cannot be comprehended. If by metaphysics he means that scholastic refinement which makes distinctions without difference, no one can hold it in more utter contempt than I do; but if, on the contrary, he means the power of analysis and combination--that power which reduces the most complex idea into its elements, which traces causes to their first principle, and, by the power of generalization and combination, unites the whole in one harmonious system--then,... it is the highest attribute of the human mind. It is the power which raises man above the brute--which distinguishes his faculties from mere sagacity, which he holds in common with inferior animals....”2
Calhoun’s argument of tracing causes to first principles reminds us that legislation is serious business--not just a ‘what-I-or-my-constitutents-feel’ issue. Following ‘first principle concepts’ leads to the concept that the states were to be premiere, and that constitutions are the people’s will. Statutory laws that contradict or cannot be traced to constitutional principles are null and void. The constitution must first be amended and the law then passed.

Source:
2 A Treasury of the World’s Great Speeches, Simon and Schuster, 1965, “John C. Calhoun Champions States’ Rights,” pg. 353.

It (the State) has taken on a vast mass of new duties and responsibilities; it has spread out its powers until they penetrate to every act of the citizen, however secret; it has begun to throw around its operations the high dignity and impeccability of a State religion; its agents become a separate and superior caste, with authority to bind and loose, and their thumbs in every pot. But it still remains, as it was in the beginning, the common enemy of all well disposed, industrious and decent men. Henry L. Mencken, 1926

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents…
“(There is a) fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution whenever they find it inconsistent with their happiness…
(And with regards to statute law) “(i)t not uncommonly happens that there are two statutes existing at the same time, clashing in whole or in part with each other and neither of them containing any repealing clause or expression. In such case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law but form the nature and reason of the thing.…
“But in regards to the interfering acts of a superior and subordinate authority of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority... They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental... [O]r, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents. Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes the power of the people is superior to both…
‘There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid….”

Source: Alexander Hamilton, Federalist No. 78. Differs from the original--the text is reversed from last to first.

… Time and again our highest tribunal has repeated this doctrine of the cohesive social aggregate antedating the form of government… The Union as a social aggregate, they said, is not an arbitrary and purely artificial relation. It grew out of natural facts of common origin, mutual sympathies, similar interests, and geographical relations… (Even though it existed before the Revolution,) by Articles of Confederation it took one arbitrary and purely artificial form of government, and by the Constitution that form was changed. But necessarily the form cannot rise higher than its creator, and that form was given, by the existing consolidated people, who as a people made the form of government. Pg. 346, 347.
Source: The Story of Law by John Maxcy Zane (1863-1937), Liberty Fund, ISBN 0-86567-191-9, 1998. Originally published in 1927 by Ives Washburn, Inc., New York.

“The agents that move politicks, are the popular passions; and those are ever, from the very nature of things, under the command of the disturbers of society… Few can reason, all can feel…’… ‘The people, as a body, cannot deliberate’; therefore their appetites are flattered by demagogues, who satisfy the popular impulse toward action by the exhibition of violence and the spectacle of incessant change.”
Source: Pg. 83, The Conservative Mind by Russell Kirk, ISBN 0-89526-724-1

...[T]he following things are demonstrated:
1> That the law was not made for a righteous man, but for the disobedient.
2> That righteous men have to part with a little of their liberty and property to preserve the rest.
3> That all power is vested in and consequently derived from the people.
4> That the law should rule over the rulers, and not rulers over the law.
5> That government is founded on compact.
6> That every law made by the legislators is inconsistent with the compact, modernly (sic) called the constitution, is usurptive (sic) in the legislators and not binding on the people.
7> That whenever government is found inadequate to preserve the liberty and property of the people they have an indubitable right to alter it so as to answer those purposes.
8> That legislators in their legislative capacity cannot alter the constitution, for they are hired servants of the people to act within the limits of the constitution...
The nature of [the state establishment, contrary to what it should be,].. is to keep from civil office the best of men. Good men cannot believe what they cannot believe; and they will not subscribe to what they disbelieve, and take an oath to maintain what they conclude is error.. [W]heras villains make no scruple to take any oath...
It is error and error alone, that needs human support, and whenever men fly to the law or sword to protect their system.. to force it upon others, it is evident that they have something in their system that will not bear the light and stand upon the basis of truth....

Source: John Leland (1754-1841); speech given in 1802, Political Sermons of the American Founding Era, Liberty Fund, ISBN 0-86597-091-2.

“… The essence of constitutionalism in a democracy is not merely to shape and condition the nature of majorities, but also to stipulate that certain things are impermissible, no matter how large and fervent a majority might want them.
‘The purpose of a Bill of Rights, the Supreme Court has said, is ‘to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.’…”
Source: Excerpted from “More to fear from government than from zealots” by George Will, Topeka Capital Journal, 12Feb200.

“For as all wise men confess that none can abrogate but those who may institute, and that all mitigation and interpretation varying from the true sense is an alteration, that alteration is an abrogation; for whatsoever is changed is dissolved, and therefore the power of mitigating is inseparable from that of instituting."
Source: Discourses Concerning Government by Algernon Sidney, ISBN 0-86597-089-1, pg. 399.

“In certain matters it was intended that there should be no flexibility or compromise. The assertion that the Constitution shall be the supreme law suggests the thought of what shall be the remedy and the recourse if Congress itself or the executive department or some of its officers or the states or their legislatures or officers or agencies should, by passing a law or indulging in other conduct, attempt to overrule or set at naught or violate the supreme law of the land. If such acts can be done and there be no recourse, it follows, of course, that the supreme law has descended to becoming inferior to the law or act that violates it. So much, at least, no reasonable human being who has any respect for his own mind ought to deny.
“After the Declaration of Independence certain of the states adopted new constitutions which became their organic laws. Among them was that of Massachusetts, with its earnest hope that that state should have a government ‘of laws and not of men.’ Other states followed… Before the Constitutional Convention produced its new Federal Constitution, there had been decisions on cases in the state courts… that any state legislation in conflict with the state constitution was absolutely void. This conception was well developed in political thought when the Federal Convention met.” Pg. 353.
Source: The Story of Law by John Maxcy Zane, Liberty Fund, ISBN 0-86567-191-9

"If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every State, county and parish and pay them out of their public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision of the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress. ... Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited Government established by the people of America." --James Madison

“I had rather ask for an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a black paper by construction. If [power is boundless] then we have no Constitution. If it has bounds, they can be no other than the definition of the powers which that instrument gives.” Quoting Jefferson, Letter to Wilson Cary Nicholas, September 7, 1803. Government by Judiciary by Raoul Berger, Pg. 357.

(The) attempt at even-handed analysis overlooks the fact that under a Constitution which delegates and limits power, the burden is on a claimant to point to the source of his power—failing which, it is a usurpation. Government by Judiciary by Raoul Berger, Pg. 370

Levy comments on Charles Black’s argument that judicial review has been “legitimized by popular acquiescence, and therefore popular approval, over the course of American history… To this Levy retorts: “The simple fact is that at no time in our history have the American people passed judgment, pro or con, on the merits of judicial review over Congress…” If in fact no provision for judicial review was made by the Constitution, Black’s argument would substitute… for change by amendment (the) revision by tacit acquiescence. Neglect or inaction would excuse non-compliance with the amendment provision; usurpation would be legitimized by inertia. But, as Hamilton stated in Federalist No. 78, the Constitution is “binding”—“until the people have, by some solemn and authoritative act, annulled or changed the established form.” Levy comments on Charles Black’s argument that judicial review has been “legitimized by popular acquiescence, and therefore popular approval, over the course of American history… To this Levy retorts: “The simple fact is that at no time in our history have the American people passed judgment, pro or con, on the merits of judicial review over Congress…” If in fact no provision for judicial review was made by the Constitution, Black’s argument would substitute… for change by amendment (the) revision by tacit acquiescence. Neglect or inaction would excuse non-compliance with the amendment provision; usurpation would be legitimized by inertia. But, as Hamilton stated in Federalist No. 78, the Constitution is “binding”—“until the people have, by some solemn and authoritative act, annulled or changed the established form.” Government by Judiciary by Raoul Berger, Pg. 371.

Hamilton, and before him Blackstone, stated that “an agent cannot new model the terms of his commission.” Plainly a power to sell a mule does not authorize the sale of the barn.--- Government by Judiciary by Raoul Berger , Pg. 381

The Founders were deeply committed to positivism, as is attested by their resort to written constitutions—positive law… For them a constitution represented the will of the people ‘that would determine explicit… allocations of power and its corresponding limits.’ Government by Judiciary by Raoul Berger , Pg. 275.

RD,
While in some ways I agree with what you say, I will fight to the death your saying it. I suspect there are a lot of people out there thinking these things. Sunlight is the best disinfectant, not hammering the discussion into the right-wing shadows.
Cheers,
Tom

Every Commander in Chief since its enactment has denied the constitutionality of the War Powers Act and honored it in the breach. It has not to my knowledge ever been tested in the Supreme Court. I'm on the side of the Constitution's embodiment of primary war powers in the Presidency and would offer that the Congress has both traditionally and in cowardly fashion sidestepped its power and responsibility to declare war and its power-of-the-purse to stop it (Vietnam - finally - the exception to the latter). This is at every level a purely political wrangle between two branches of government and does not rise in any way to a constitutional matter, nor certainly to an excuse to evade duty.

That said, I would also note the tinfoil-hat tone of the midshipman's rant. This is the sort of right-wing conspiracy-ridden looniness that afflicts a fair bit of our politics and national life these days. It should be killed in the crib ... even if from the mouth of a child. And his invoking of Abraham Lincoln on matters constitutional is ironic, given Lincoln's later (wise but unconstitutional) suspension of habeas corpus in service of his duties as Commander in Chief.

You know I'm not unwilling to stake out contrary positions and likewise defend those who speak out. But I'm with Bob Timberg and a bunch others (I thought perhaps you among them) who draw the line at Anon in the byline of serious conversation. It may be good to see a military student in the grasp of an idea, but praise to the midshipman who signs her name.

Actually, I think RD is on to something. Where does one draw the line about debate among junior officers relative to the legitimacy of orders from the CIC? In this case the Midshipman questions the legality of the Libyan operation. But how about if the Midshipman was a birther and doubted Obama’s legal right to hold office? Or if the Midshipman was some far right religious cult member who believed Obama was some evil alien presence? Where does it stop?

You were right in that it is the duty of junior officers to refuse to accept orders that are clearly illegal in matters such as war crimes and contrary to the UCJM. But the Midshipman has no business taking it on his own to adjudicate in his own mind the division of powers between the Executive and Congress relative to his duty. That is way out of his pay grade and is fraught with danger for him personally and for good order and discipline.

"Aha, a sighting of the Sea Lawyer at an early age"

I thought RD was going all James Joyce on us!?!?!

The kid is already starting to sound like he is "out there", do we want to nourish these ideas or kybosh them at the starting gate? I am all about the exchange of ideas but I hate conspiracy minded theories and we should take those ideas to task as soon as we are able to do so. Mr. Ricks points out quite correctly what lawful and unlawful orders are meant to prevent, as long as they are not ordering him to intentionally target kids, hospitals, shoot a POW in the back of the head, murder American, etc....it is pretty much a lawful order. Would the Midshipman have us wait till Congress voted to attack in order to defend ourselves? Would he have to wait till his Rep. said it was ok? Would he start to question every order he was given that he did not agree with? RD is right, kill this while it is in the crib.

The midshipman hasn't broken the UCMJ or any law. He is free to challenge these views, and even to express them with others. There is a line for contemptuous words, but he hasn't crossed it. Beyond that, despite those on this thread who apparently wish their officers to be unthinking followers who blindly follow orders, it is his professional duty to interpret the Constitution for himself and to act accordingly. Article VI of the Constitution requires the oath before God, and binds both military and judicial officers to the document (not to the interpretation of the other). That he has to do his own thinking in accordance with his oath should be obvious.

Supreme Court Justice Joseph Story acknowledged this in 1833 in his Commentaries on the Constitution, writing in his chapter, "Who is the final Judge or Interpreter in Constitutional Controversies:"

"The officers of each of these departments are equally bound by their oaths of office to support the constitution of the United States, and are therefore conscientiously bound to abstain from all acts, which are inconsistent with it. Whenever, therefore, they are required to act in a case, not hitherto settled by any proper authority, these functionaries must, in the first instance, decide, each for himself, whether, consistently with the constitution, the act can be done."

Of course Story suggests that once the judiciary has ruled on the Constitutionality of an issue, that this might not be the case. But if an issue has not been addressed in the courts, it's left up to the individual. I'd argue that it always is. Much easier for a soldier to study the few pages of our Constitution than it is to read the opinions of the Nine over a few hundred years and sort out their reasoning. But if it hasn't been addressed by the Courts, we in the military must think for ourselves if we are bound by the oath we took. Take for example, the potential order to assassinate an American citizen without a trial, and without the treason process provided for in the Constitution and guaranteed by the Fifth Amendment. Our SCOTUS hasn't ruled on this ever so "complicated" issue of whether or not it's Constitutional to just kill Americans without a trial since it hasn't been brought up yet (and it's amazing that ever would in a free country). It hasn't been ruled on by the judicial and, in fact, this new assumed power is hardly brought up in the media. If Tom blogged about this, sorry I missed it. So each military person has to figure this one out for themselves, as Justice Story understood and as the Constitution itself demands of us.

Great discussion for the sunlight, Tom. I agree with you. Unfortunately in the sunlight reasonable and principled military professionals who take this view risk being labeled right wing nuts and dangers to their units, acting above their pay grade, by people who ironically ascribe hidden agendas and devious plans to their principled action.

And nobody has to remind the principled that they risk themselves, their careers, their convenience and their livelihoods by standing up for what is legal and right in the face of so many who think the Constitution is a cute remnant from another time period. That's a highly convincing point for cowards, but last time I checked our service wasn't supposed to be primarily about how we could save our own hide.

I'm not a midshipman and I'm not all that young. I fully support this young guy thinking and I hope he joins our ranks and keeps it up. God knows we need more principled people who think in our government.

....that there is a cost for standing on ethical ground. We too often dismiss the reminder more out of denial than out of an honest appraisal of the character of our peers. Standing forth when the material benefits for doing so go negative is not anything which gets easier with the accumulation of paygrade entitlements. Our recent history is replete with instances where the moral hero becomes the "enemy of the people" and is treated as the fool to be ignored.

And we avoid in the course of professing dedication to principles discussing personal consequences. This is to the detriment of those who bite on hypocrisy's fishing bait.

PYB If you're alluding to recent events in Yemen, TR has been all over it, if you're talking about some other "assassination" maybe not. Lots of people get killed in wars most of them are not assassinated.

Over 600,000 Americans were killed during the Civil War, most of them were not assassinated either.
Definition of ASSASSINATE
1: to injure or destroy unexpectedly and treacherously
2: to murder (a usually prominent person) by sudden or secret attack often for political reasons

When you take up arms against the Nation, you are liable to get hurt, it probably won't be an assassin it is more likely to be just a JDAM or HellFire or something common place like that.

Actually ... that same principle that allows Midshipman Anon to voice freely his views allows others to suggest he's full of it. It may seem rant and counter-rant to some, but counter-rant is permitted under the rules, eh?

BearCat,

In this context I am defining assassinate as the targeting of a specific American citizen and the killing of him regardless of his location to any battlefield and regardless of whether he is at the moment engaged in battle.

I think they assassinated a lot of people during the siege of Petersburg. They had Sharps Rifles with High Powered Optics and assassinated up to a mile away.

You need to think of the War as a WAR. You usually end up killing some people on the other team during wars.

You're taking a narrow extremely legalistic view, "crime and punishment" like this was peace instead of war. That is one reason some kind of declaration "startex and endex" would be nice so we know what the rules are.

I am looking forward to headlines like "US Marshalls Seize The Crater In Aden While Serving Warrant" or "FBI Anti-Gang TF Occupies Sanaa ". If we go very far down this road we'll be trying people in absentia like the Europeans.

Thanks for the info on war, Bearcat.

I don't care about what happened in Petersburg. I care what our government does to American citizens, and I care about what the Constitution has to say about it. I know, I know, so old fashioned and I should get with the times.

We can win every war on this planet and yet fail to make the American people any more secure, if we punt on our oath support/defend, bear true faith and allegiance to the Constitution, without any mental reservation or purpose of evasion.

But when something is that ill-informed at a School that gets ranked top 10 every year for Best Liberal Arts School by US News and World Report, that has expectations of intelligent and informed officers then it causes concern. The Mid goes borderline conspiracy. We have Officers attempt to say that that Iraq was Illegal, even though Congress voted for it. We have had Officers attempt to refuse orders due to Obama not being a citizen in their minds. We have had Officers attempt many number of crazy ideas to refuse orders, should we continue to nurture and allow them all? Most a crazy.
If the Mid has said he thought that the President was over-extending his reach, that he did not like the shift in balance of power between the Executive and Legislative, perhaps that never ending conflicts caused him concern, etc...then he would be making a great point and should be applauded for thinking outside of "order" but the main premise he has is that is might be illegal when anyone who reads even the daily paper knows that it is not. I expect more from an Academy Grad, so should you.

Perhaps good advice: and pick them well. Not to be overly pedantic, but I will be. "Article VI of the Constitution requires the oath before God..." Where, exactly, in Article VI is there an oath before any god required? I should probably reread the entire document but I fail to recall any specifics of oath for members of the US military. The only oath I find on quick perusal is that of the President. Note that there is also no god mentioned there. Sometimes specifics matter.

But ESIII has what I see as the germane point here: this Mid should be better at this point. While he is more than welcome to participate in discussions like these, and to raise points of concern, his perspective reads, to me, like he is readying his argument for deployment avoidance. I am more than happy to have him point out that I am incorrect in this assessment. But the Mid's verbiage suggests this mindset to me. Judging by other comments here I believe that I am not the only reader that sees, at the least, poor argument here.

Strictly speaking, you are right about Article VI. It doesn't require an oath before God (and is in fact followed by the "no religious test" clause. You are correct there is a separate oath required by the Constitution for the President. But military officers, as officers of the executive, are also required to take one (and are lumped in with the judicial officers interestingly). Article VI says, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..." No mention of God, although I would think an oath would be assumed to be before God as written (and as it traditionally is today). I could be wrong. From what I understand the language on affirmation rather than oath was put in due to Quakers having a qualm with taking oaths. That suggests oaths were understood to be before God. But you are right it does not mention God.

Regardless of if the oath is before God or not, it's still an oath to be "bound" to the Constitution and not to the President or even to the interpretation of a government body (including the judiciary). It's just as important and binding either way.

I won't defend this midshipman's argument on the War Powers Act or Libya. But I am very glad he's thinking about the Constitution and the limits he must recognize as a government agent. I wish more public servants would do the same. Discussion is a great way to get an education and as long as he hasn't crossed into contemptuous language and isn't calling for revolution and the overthrow of the government, then he's doing fine. And I do applaud him for having the courage to raise the discussion. It's an important one, regardless of his particular stance on way or the other.

I don't agree that the Midshipman's article is a good example of critical analysis. Nor do I believe it is an example of well-written or intelligent discourse.

What troubles me is that the Midshipman goes beyond academically analyzing an issue, and openly advocates disobedience of a Presidential order. "The pressure that a refusal of orders would place on the President would be impossible to ignore" is somewhat offensive. The Midshipman appears to have cast himself as a legal or moral authority worthy of deliberately placing the President into some sort of political dilemma. To me, this goes far beyond this Midshipman's training, education, or experience.

I am NOT a lawyer or a legal authority. But my instinct tells me that the Midshipman's article is not just ill-formed, but ill-informed. The US Army's Judge Advocate General's Legal Center and School publishes an "Operational Law Handbook 2010," easily downloadable in .pdf format. Chapter 1, "Legal Basis for the Use of Force" discusses this issue (page 7). I won't fully summarize the chapter here, but two important things stand out. First, "the Constitution divides the power to wage war between the Executive and Legislative branches of government." The President is required by the 1973 War Powers Resolution to consult with and report to Congress the "introduction of troops into actual hostilities" within 48 hours. Second, this report triggers a sixty-day "clock." Congress must either declare war, authorize the combat action, or extend the clock. The President can unilaterally extend the clock to ninety days. When the clock expires without Congressional action, "the President is required to withdraw deployed forces." The point is that neither the Constitution nor the 1973 WPR require Congress to declare war before the President commits joint forces.

As a final word, I believe that remedy in the case of a breach of the 1973 WPR lies between the executive, legislative, and judicial branches of government. Deliberate disobedience by military officers is simply not an honorable option.

Paul, can you point out where the POTUS can unilaterally extend the clock to ninety days? I'm not saying it's not there, I just don't see it. The closest I can find is Title 50, 1544, section (b)(3) of the War Powers Resolution. That section states:

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

So from my reading of the federal law, the clock is only extended to 90 days if the Congress is physically unable to meet as a result of an armed attack upon the United States and the POTUS certifies to the Congress yada yada. In either case, that doesn't appear to be unilateral to me given the conditions. We're not under attack and Congress is able to meet. Did the POTUS certify to the Congress to justify extending the clock in Libya?

I could be wrong, I just read the War Powers Resolution about ten minutes ago and only one time over. If I'm wrong, thanks for the correction. If I'm right, then it's just amazing what a common military man can divine from the law by simply reading it to find out what it says without consulting a lawyer. I'll gladly eat crow for my snarky comment if I am wrong.

As do I.

Not to mention his point that Congress has failed to declare war in some time leads to a bit of a half-truth (as Congress has nonetheless authorized military operations during the mentioned period, even if it did not utilize a formal declaration of war). I am not one who will fault the midshipman for asking questions, but he needs to find greater strength in his arguments if he actually expects to get anywhere with them.

Man, great points and you had me until I read those last two words ;)

Noval,

You do yourself no honor by equating Col. West's behavior with "a little slappy face." West was present while a group of soldiers kicked and beat the Iraqi policeman for "about an hour or so," according to one soldier's statement. The Iraqi cried and screamed. Then West took the Iraqi outside, had two soldiers hold the man's head inside a clearing barrel, and fired one or two shots past the prisoner's ear.

Intelligence professionals were shocked by the lack of discipline West demonstrated. Among other things, they told me, you should never interrogate someone about a threat to yourself.

Gen. James Mattis, now the Centcom commander, is no softie. But he wrote of West that he was "a commander who has lost his moral balance or has watched too many Hollywood movies."

More on all this in Fiasco, pp. 280-281 and p. 318.

Best,
Tom

CPT N

Sounds like Alan West had all the morals required for US Congress but was lacking when it came to being an Officer. Good career change!

But did you just equate Gen Mattis' decision to send the CO responsible for Marines who killed civilians in Haditha to court-martial (keeping in mind that their CO was ultimately responsible for everything that they did or failed to do), which led to the charges being dismissed because of a conflict of interest on Gen Mattis' part, to Allen West's actions, which at the very least violate the laws of weapons' safety, if they didn't violate ROE, various orders and directives, US law, and international law (which I'm pretty sure they did)? In the former, we see a leader holding subordinates accountable for the good order and discipline of their unit and attempting to ensure the most humane conduct of war possible; in the latter, you see an asshole actively degrading the rule of law on the battlefield and undermining good order and discipline.

All the voters of Florida did was send someone to Congress who will undermine the principles of justice, civility, and rule of law on which this nation was built.

Even Marines accused of war crimes by influential members of Congress are entitled to a fair hearing before a fair tribunal. And in the Haditha case, of all the Marines who were criminally charged, including Jeff Chessani, none were convicted of so much as spitting on the sidewalk (although the Corps keeps trying, thusfar unsuccessfully, to pin something on Frank Wuterich). On the other hand, Jim Mattis was cited for unlawful command influence in trying to fix the case. So no, I offer up not so much a defense of what may or may not have happened at Haditha, but a defense of the rights of our troops not to be subjected to kangaroo courts.

Captain Noval states, variously, that a court found that Mattis gave false testimony, or that he exerted unlawful command influence in this case. Reviewing the Navy/Marine Corps Court of Military Review decision, that doesn't appear to be the case. http://www.jag.navy.mil/courts/documents/archive/2009/Chessani,%20J.R.%20200800299%20unpub.pdf .

What was decided was that Chessani's legal team adequately raised the issue of unlawful command influence in his case (by "some evidence"), and that the government failed to meet the issue, by the legally mandated standard of proof, "beyond a reasonable doubt." In other words, the decision rested on a "failure of proof" denying the defense allegations, rather than affirmative evidence showing that Mattis (or his legal advisors) did anything unlawful or improper.

Given the finding by the military judge at trial, and the appellate court on review, the claim that Mattis lied, or attempted to unfairly and improperly influence the proceeding against Chessani, seems more than just a stretch. It seems such a claim is unfounded.

What we see in the legal proceedings appears to be a failure of military lawyers, not necessarily command leadership. The record is silent as to the latter, owing to the former.

With all due respect, the Marines at Haditha did not intentionally kill those civilians, the ones that were killed by the Taxi fell and died the way the Marines explained it and that is from a CID Investigation, complete with forensics and re-enactments. UAVs (Eagles) showed the Marines taking fire in the town and from the building they attacked. The Marines did not know that civilians were in the house and attacked them using typical MOUT TTPs, if we want them to avoid killing civilians in that situation then we better spend a lot more money training them on Hostage Rescue Techniques because otherwise that was going to happen. What happened was a tragedy but I do not think, as I know many do on this blog, that it should be labled a war crime. If people want to say that it should be taken on as a lesson learned and give better training and teach more tactical patience so as to prevent this in the future, great but this was not a war crime.