Constitutional Questions

[TRIGRHAPPY]

I'm pretty sure the great majority of individuals reading this have taken the same oath I have.....

I, (name), 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.

I'm just trying to get the prevailing conceptions from other service members on this....I won't be making this political, so please keep it from turning into that.

What is YOUR take on the state of things, and the constitutionality of things going on at the moment in the U.S. I'm sure if you ask a soldier, sailor, airman, or marine if they would obey an unconstitutional order, they'd say no.......my point here is to get an idea of what they take as an unconstitutional order, and what would they do if (in their opinion) they recieved one.

BTW, a sound knowledge of the constitution is recommended....

What would you do in the following situations?:

1) A "detainee" is placed in your custody who is a U.S. Citizen that was originally arrested on U.S. soil.

2) You're ordered to disarm American citizens by force if necessary (Katrina style).

3) You are ordered to augment the police to keep order during a civil unrest.

Now, I would also ask your opinion on declarations of war.....

The constitution says there are two ways to go to war, one is that we are attacked (or attack is imminent) and the other is that congress "declares war".

My take on that is this (and let me emphasise, this is my OPINION).... The Constitution says that if it does not specifically grant the right to the federal government in the constitution, it is denied to them. Since the Constitution does not say they can grant the powers of congress to anyone (or anything) else......i take it that they can't, and congress must "declare war" as the constitution says. Of course, I understand all other views on this, since it is vague, and there is no strict definition of a declaration of war. Does an "authorisation of use of military force" constitute a constitutional declaration of war.....and if so, why was the formal "declaration of war" defeated in congress prior to engaging in Iraq?

Please, keep it strictly constitutional opinions.......stay away from getting into politics.

[Harris]

It's a fine point, but the oath requires that one "uphold and defend" (not interpret or follow) the constitution, and that one follow orders of the President and the chain of command.* A member of the military is not to make determination on the constitutionality of orders (one is expected not to follow orders that violate law, but it's generally been held that that applies to instances that would be war crimes). Indeed the very nature of military service requires that members act upon orders on the assumption they are valid. On the opposite side of this, a member of the military, acting upon patently lawful orders would not be liable if it were later found they violated a point of law (as opposed to a "crime against humanity"). The best example that comes to mind is the imprisonment of US citizen of Japanese ancestry, during World War II. This was a military operation, ordered by the president. It was widely felt even at the time to be unconstitutional, and the Supreme Court eventually ruled this was the case. The government accepted liability, and paid reparations, but no individual was held responsible. Had a soldier at the time refused to obey orders to participate in the internment on the basis the action was unconstitutional, he doubtless would have been prosecuted, and found guilty. This would have been correct, since he indeed failed to follow the order, which was "lawful" at the time it was issued.

To fail to willfully carry out orders subjects one to prosecution, and I suppose the constitutionality of an order could be raised as a defense. However, it's been tried before (repeatedly during the undeclared Vietnam war for instance), without much success. Furthermore, it would doubtless be a case where one would certainly be giving up everything for their principles, regardless of the eventual outcome.

* THe oath in question:

"I, (NAME), 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."

Harris

[Yuppicide]

"I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and DOMESTIC...and that I will obey the orders of the President of the United States..."

What if the President IS the Enemy????

[TRIGRHAPPY]

A fine reply Harris. Yuppicide.......you're trying to take this in a political direction, please don't.

As for Harris' reply.... So with all my examples, you would obey simply because it is not up to you to question whether an order is constitutional or not? I'm not saying you're off base, just that with that argument, I don't see how you are at all "defending" the constitution......granted, you would be abiding by the 2nd half of the oath, obeying the orders of the president etc, but the first half is in there for a reason right? I'm sure they didn't intend for it to be purely metaphorical, after all, you don't swear to bear "true faith and allegiance" to the president.

Personally, i break the oath down into two parts.....

Part 1) 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

Part 2) I will obey the orders of the President of the United States and the orders of the officers appointed over me

Also, to link the two, it uses the word "AND", or another words, BOTH at the same time. If you cannot do one without doing both, then you are not bound by your oath.

Granted, I understand the point that orders are to be obeyed without question, however I believe that the first half was put in (and even reemphasized) for the sole purpose that the military not disobey the constitution. If you obey an order you believe to be unconstitutional, then aren't you both breaking your oath and helping to undermine the constitution? That is the essence of what I'm getting at here....

[Harris]

Trigr,

I should start by saying I'm not in the military, nor have I been. I've taken a very similar oath (several times) during my career in law enforcement; and similar issues come up.

My read is that you are to bear true faith and allegiance to the constitution primarily by following the orders of those constitutionally empowered to issue such orders.

Further if you disagree with the orders - on constitutional, or any other grounds - the morally correct thing to do is not to sabotage the mission by failing to follow orders to the best of your ability, but to conscientiously object (make your objections known) and refuse openly and directly to follow. This allows the service to replace you and prosecute you, which by law, allows you an avenue (judicial proceedings) to air your claim. Theoretically, a court (civil or martial) could find your position was valid, and you would be exonerated. As a practical matter this is so unlikely as to be impossible. Nonetheless the existence of the process negates any "constitutional defense" to any other failure to follow orders.

Finally, many of the recent actions of the current administration; while at first blush seem to violate the plain text of the constitution; have withstood congressional and/or judicial review (I will absolutely grant that in several instances this review has been strained or non-existent). In other words the rule of law has been followed in development of the policy under which the orders were issued. For one to hold out his interpretation of the constitutionality of an order issued in this case would be foolhardy indeed.

If a member of the military felt strongly that either a specific action, or a general policy, violated his oath, the only morally correct action is to leave the service; either by continuing to follow orders until his obligation was at an end, or to conscientiously object. Many members followed this course during Vietnam, or refused to be inducted; resulting in criminal sanctions. It is hard to fault their morality. Particularly when so many simply failed to register for the draft, or actively evaded it, often through devious means. There is much to be said for the man that says he is so firm in his disagreement, that he will accept the consequences.

Mind you ALL of this is a theoretic discussion. I have a firm belief that the primary response to orders must be willing obedience, and that the time to consider all implications of any oath of office is prior to its being taken. I sincerely hope your question is designed similarly as an academic exercise, and that you are not experiencing internal conflict regarding your oath versus performance of your duty. If you are, perhaps that's the reason for the last sentence of the oath.

Harris

[Yuppicide]

Originally Posted by TRIGRHAPPY

Yuppicide.......you're trying to take this in a political direction, please don't.

Lighten up Francis, I'm just asking a question!

The founding fathers meant for the Militia to be able to not only defend us from foreign enemy's, but also to rise up against our own tyranical Government.

If the Military (or National guard) is our new "Militia", and they take an Oath to Defend the Constitution...But also swear to follow the Presidents Orders...

Then What if the President IS the Enemy????

We'll call him President TRIGRHAPPY (so as not to politicize it).

It would make a good argument for the fact that we still need a Citizen Militia.

[TRIGRHAPPY]

I sincerely hope your question is designed similarly as an academic exercise, and that you are not experiencing internal conflict regarding your oath versus performance of your duty.

Pretty much it is just an academic excercise. However, I also believe there is a strong possibility that I will be asked to follow an order I believe to be unconstitutional at some point. I have always taken any oaths far more seriously than most.....which is why I'm asking the questions I do.

As far as standing up for principal, the story of one Lt. always stood out in my mind. Granted, many may not agree with him, but how many individuals here would be willing to face prosecution and accept the consequences for doing what you honestly percieve to be the right thing?
Ehren Watada - Wikipedia, the free encyclopedia

As he put it:

When you are looking your children in the eye in the future, or when you are at the end of your life, you want to look back on your life and know that at a very important moment, when I had the opportunity to make the right decisions, I did so, even knowing there were negative consequences

[Radio Relay]

Truthfully, I'm wondering if there are a few generals thinking the same thing. Considering the way things are going...

If you do decide to challenge an order, or report a constitutional indiscretion, you might want run it by a lawyer first. There are civilian lawyers that specialize in military law. They usually have their practices set up near military bases.

You might even want to consult JAG. That can be risky, but it might be smart to find out how sharp the sword is before you fall on it.

[TRIGRHAPPY]

There is no "imminent situation" with me on this. I made the original post simply to encourage philosophical and moral discussion on the issue. I simply foresee many individuals in the military (and probably the police as well) most likely coming to this point sometime in the near future and wanted to hear people's views on it.

the morally correct thing to do is not to sabotage the mission by failing to follow orders to the best of your ability, but to conscientiously object (make your objections known) and refuse openly and directly to follow

I couldn't agree more. To sabotage would also put you in a different category of criminal offense. This is why I linked to the story of Lt Watada, who did the right thing..... He believed he was being asked to obey an unconstitutional order (in this particular situation it was the war in iraq). He voiced his objection to his superiors, asked for a reassignment to Afghanistan, and did everything in his power to do the "right thing". He did not desert, he did not sabotage the mission, and he proved he was willing to take a stand, do what he perceived to be the correct thing, and hardest of all, accept the consequences.

that the time to consider all implications of any oath of office is prior to its being taken

Right, but what if you believe that a particular action is not an implication of your oath, but in fact would be breaking your oath to follow the order you perceive to be unconstitutional?

[cove702]

I tend to think that the USA has not declared war since WWII