After I drop off our elementary-aged kids at their bus stop, I drive my 7th grader to her magnet middle school. This year she has a civics class. Being a civics and geopolitical junkie, I love to discuss with her what she is learning. This morning on our way to her school, we listened to Samantha Powers being interviewed on NPR about Syria. Ms. Powers tried to make the case for military action, all the while, like Kerry, refusing to call it war.
I mentioned that the President -- and good on him -- has asked the Congress for approval for military action. I explained that the Constitution grants the sole power to declare to the People, through their representatives in Congress. We discussed that often Congress prefers not to make this decision so the members can avoid accountability, and in this way often avoid their constitutionally-chartered responsibility. But this time, by the President asking Congress, he is forcing them to exercise its mandate.
I then mentioned that the President, even though he is asking Congress to vote, still holds that he has the authority to act regardless of the vote of Congress. My daughter noticed the disconnect here with what the Constitution requires regarding sole responsibility and with what the President maintains is his within his power. She said, "Well if Congress votes against war, then if the President still tries to start war can't the military tell him 'no' because it would be illegal?"
"That's a good question," I answered. Then, as a veteran, I told her of a soldier's legal duty to disobey an unlawful order (a VERY sticky and dangerous issue), how in training, this duty is made very clear. I spelled out scenarios, like an officer telling his NCOs to shoot prisoners during the heat of battle because maybe he believed he could not spare soldiers guarding prisoners. I explained that would be an illegal order, even if it might put everyone more at risk because there might not be enough soldiers to keep on fighting. In such a situation, the NCOs had the legal duty to disobey the order even if it might mean more casualties on their side.
I continued with more abstract examples that might occur higher up the chain of command until I got to a point were I explained the uniqueness of an American president also being the Commander in Chief, that he has the ability to order generals to launch attacks and otherwise direct the American military.
So my daughter pressed on by taking the question one logical step forward, "So the President can order the generals to start a war, but the Constitution says the President has to have the permission of Congress to do it, then it be an illegal order if the President told generals to start a war after Congress said 'no'. What if the generals said 'no' to the President because it would be illegal?
Oh boy, what a question...
Indeed this is not a far-fetched scenario at this point. It is conceivable and arguably legal that the Joint Chiefs could rebuff the President's call to launch missiles and airstrikes in Syria after the Congress has expressly voted no. There is real potential for a Constitutional crisis that would reach into the military here, which is extremely dangerous. An argument could be made that if the Joint Chiefs followed orders here, they'd be acting illegally and could be brought up on charges. The USMJ codes for disobeying unlawful orders does not only apply to the grunts in battle -- it applies all the way up the chain.
The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.
During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, "The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials."
Would the JCs disobey if Obama orders a strike after a "no" vote of Congress? No, I don't think they would. Can they? Arguably yes, they can. Either way, it is a legitimate crisis that unfortunately transcends politics into military matters of war.
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I did not leave my daughter with any easy answers. There aren't any, nor do I want her thinking governance and issues of war and peace are simple. We left it by talking about the need for citizens to understand their rights, their roles in the drama of civics. From our car parked just outside the school we looked across at the all the kids hanging out just before entering. White kids, black kids, Hispanic and Asian, pretty much all mingling together, giving each other the hugs of greeting that kids do these days. I told her I was hopeful her generation could and would do better. Then I told her I loved her and to have a great day in school. Watching her leave, I mumbled to myself, "You kids HAVE to do better."
4:48 PM PT: Cool. My first Community Spotlight. Thanks. I shared the diary with my daughter this evening and we discussed it further. I love to see her world expand, even when it means contemplating these hard questions.