It is a privilege to serve in the US military. With that privilege comes obligations. Following military law is one of them. When Lt. Col. Joni Ernst signed the seditious letter to Iran, she broke a serious law.
Lt. Col. Joni Ernst, the junior senator from Iowa, serves as a lieutenant colonel in the Iowa Army National Guard. As such, she is bound by the Iowa State Code of Military Justice. Her signing of the seditious letter to Iran is a clear and direct violation of Chapter 29B.85 of the Iowa State Code of Military Justice.
29B.85 CONTEMPT TOWARD OFFICIALS.
Any person subject to this code who uses contemptuous words against the president, the governor, or the governor of any other state, territory, commonwealth, or possession in which that person may be serving, shall be punished as a court-martial may direct.
This is very serious infraction. We are a nation governed by civilians. Our Commander-in-Chief is a civilian. The government officials that hold ultimate authority over our military are civilians. This is true at the federal level and the state level. This has always been the case since George Washington was president. He resigned his military commission to accept the position of president. We have never in our history had a military ruler. Military obedience to civilian authority is critical and essential if we are to maintain the democracy we inherited. That is why "contempt towards officials" is such a serious matter. Lincoln enforced that discipline during the Civil War. Even with the imposition of martial law, Lincoln remained a civilian commander. Truman enforced the same discipline after WWII when he relieved Gen. MacArthur of his command. Obama enforced the same discipline recently when Gen. McChrystal was relieved of his command. There is nothing anachronistic about this fundamental principle.
In the federal armed services, this is handled under Article 88 of the Uniform Code of Military Justice.
“Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Transportation, or the Governor or legislature of any State, Territory, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”
Reading the federal version, it is obvious where Iowa got the wording for its law. It's not an accident or a coincidence. The importance of enforcing the requirement for military obedience to civilian authority is universally applied at every level of governance, from the federal to the local level.
This is why we are not a police state.
In the Open Letter to Iran, which Lt. Col. Joni Ernst freely signed, it says:
we will consider any agreement regarding your nuclear-weapons program that is not approved by the Congress as nothing more than an executive agreement between President Obama and Ayatollah Khamenei.
The fact of the matter is the president, under Article 2, section 2,
has always been recognized as uniquely empowered to speak on behalf of the nation. After all, the president
is the Chief Executive. This principle has been in place for over 200 years. Secretary of State Jefferson -- as instructed by President Washington --
made this point in writing to Edmond Genet in 1793, explaining that no one but the president could speak for this country.
He being the only channel of communication between this country and foreign nations, it is from him alone that foreign nations or their agents are to learn what is or has been the will of the nation; and whatever he communicates as such, they have a right, and are bound to consider as the expression of the nation
The letter goes from bad to worse, stating “future Congresses could modify the terms of the agreement at any time.” This contempt for the president's role ignores a bedrock principle of Executive authority established when Washington [1793] was president. Adams, no friend of Washington, signed this in to law [1799]. The Senate Foreign Relations Committee reaffirmed this [1816] and the Supreme Court agreed [1938]. It’s no surprise that Cheney relied on this point to defend Reagan’s negotiations with Iran [1987] and that Biden, no friend of Cheney, agreed [2015].
There is no other way to characterize this blatant attempt to undermine this universally recognized executive authority as anything but sedition. Undermining the authority of the president while you are serving as an active duty officer in the Iowa State National Guard is clearly contemptuous.
At the federal level, an officer is in violation of this law (Article 88) if their behavior meets the following tests:
(1) That the accused was a commissioned officer of the United States armed forces;
(2) That the accused used certain words against an official or legislature named in the article;
(3) That by an act of the accused these words came to the knowledge of a person other than the accused; and
(4) That the words used were contemptuous, either in themselves or by virtue of the circumstances under which they were used.
This brings us to the case of Lt. Col. Joni Ernst. I assume the same elements, or similar elements, are used to determine compliance at the state level for Section 85 as they are at the federal level for Article 88.
In this case, Sen. Joni Ernst is a commissioned officer. (1)
She did use words against the president. (2)
These words were published to MANY people besides the president. (3)
The circumstances of these words are contemptuous of the president and his authority.(4)
That's four strikes, and one of 47 reasons 240,000, 250,000, 275,000 people are saying the seditious senators need to be prosecuted. Add your voice.
What makes Joni Ernst more notable than most of her colleagues is that she has done more than attempt to undermine the president's authority to conduct diplomacy. She has also disgraced her commission and tarnished the reputation of the Iowa National Guard. Her behavior reflects poorly on her and her chain of command. It also provides a poor example of leadership to those men and women entrusted to her command.
Because of her actions, Lt. Col. Joni Ernst appears to have willfully violated Iowa Code 29B.85. The only reasonable course of action is to subject Joni Ernst to court martial and punishment in proportion to the severity of her infraction.
12:15 PM PT: [UPDATE]
A fair amount of commentary circles around whether Lt. Col Sen. Joni Ernst is active duty or not. Some seem to feel that if she is not actively in uniform, then she is free to say and do as she likes. Or more accurately, she gets to pick which set of rules she will abide by depending on her mood.
This is not the first time, the issue of Lt. Col. Joni Ernst speaking with contempt for the president has been raised. This issue has been discussed in The Des Moines Register as recently as January 27, 2015. Steve Wickert, a Vietnam War Veteran, has looked at the matter in some detail. Even going so far as to contact Iowa National Guard Adjutant General, Maj. General Timothy Orr with his concerns.
One concern regarded Lt. Col. Sen. Joni Ernst's penchant for trumpeting her rank in the context of political advertising. As Wickert notes:
The main focus of my piece concerned Ernst's constant use of her affiliation with the Iowa National Guard. She used it as a campaign strategy by consistently touting her rank and position in the National Guard. Even in her recent response to the State of the Union Address she said she was "a soldier." This leads people to believe she is actively serving in a military capacity at that particular moment. When she is actually on an active duty status, she is not allowed to criticize her superiors and specific government officials because of the laws of the military called the Uniform Code of Military Justice or the Iowa version called the Iowa Code of Military Justice.
However, Wickert notes a problem, similar to one raised by some commenters.
Since she isn't on active duty, technically she has the legal right to be a candidate and hold a political office, but is she behaving ethically?
Every time she misleads people into believing she is actively in the military, Ernst opens the door for confusion. Are her comments coming from Senator Ernst or Lt. Col. Ernst? If she wants to have the same freedom of speech as a civilian while a political candidate or senator, she needs to stop telling everyone she is "a lieutenant colonel" or "a soldier" when she is actually serving in a civilian capacity. Legally she cannot fulfill the requirements needed for both roles at the same time nor is it ethical. This would create a conflict of interest.
This is where some seem to feel she has carte blanche to behave however she wants. As I have noted in comments, I recognize that legislators enjoy a limited immunity when they are speaking on the floor. That is how a young senator from Alaska, Mike Gravel, was able to read the Pentagon Papers into the public record.
My point is the letter to Iran is designed to undermine the authority of the president to conduct diplomacy. That is beyond freedom of expression. That is sedition. As I noted in my previous post about Tom Cotton, this is unacceptable in all forms. However, in the case of Lt. Col. Sen. Joni Ernst, it is worse. She is flouting laws in ways no other officer could. This is being enabled by the decision, as relayed to Wikert,
"Federal regulations allow military personnel in the National Guard who are not performing full time military duty to campaign for and hold partisan political office ... unless properly ordered to military duty, they are not subject to either the Uniform Code of Justice or the Iowa Code of Military Justice."
Interestingly though Lt. Col. Kuehn went on to say:
"Although civilian activities, including speech that is contemptuous of state or federal officials could form the basis for adverse administrative action against a member of the National Guard, political speech, particularly by sitting office holders or candidates, has typically been given a great degree of deference in the courts with regard to whether the speech does, in fact, constitute offensive or illegal speech."
I think Wikert's conclusion is quite reasonable:
Even if a court might give "a great degree of deference" to Lt. Col. Ernst for making contemptuous comments while she touts being in the military, I am personally not ready to do so. I have too much respect for military protocol and for the Office of the President of the United States (regardless of who may serve there) to excuse her behavior.
Holding Lt. Col. Sen. Ernst to a higher standard than your average citizen makes sense. She has opened the door to hold herself up to these military standards. She cannot divorce herself from being actively in the U.S. military while using her rank and position as a political strategy. All the people she commands still look up to her as a role model throughout this time.
That is eminently reasonable, given the fact that Wikert has previously documented other questionable actions by Lt. Col. Sen. Joni Ernst. The most egregious being her declaration, while serving in the National Guard:
In a video from a 2012 National Rifle Association event, long before Ernst was a candidate for U.S. Senate, she made statements that could be interpreted as she might use a gun to defend herself from the government. After admitting she carries a gun in her purse, she stated: "I do believe in the right to carry, and I believe in the right to defend myself and my family — whether it's from an intruder, or whether it's from a government, should they decide that my rights are no longer important."
Civilian codes also prohibit this type of behavior with
"18 U.S. Code § 2385 - Advocating overthrow of Government."
Ernst swore an oath when she entered the service as an officer of the Iowa National Guard:
"I,[name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State (Commonwealth, District, Territory) of against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor of the State (Commonwealth, District, Territory) of, that I make this obligation freely, without any mental reservations or purpose of evasion, and that I will well and faithfully discharge the duties of the Office of [grade] in the Army/Air National Guard of the State (Commonwealth, District, Territory) of _ upon which I am about to enter, so help me God."
The problem, as Wikert notes, is Ernst seems intent on acting however she feels and by whatever rules are convenient. One day she is defending the Constitution and bearing "true faith and allegiance" to it. The next, she is flashing her piece daring the government to try and take away her rights.
She has gone from claiming she is a combat veteran (even though she never saw a single fire fight), to saying bombastic things about "defending herself" from the government she swore to defend, to actively trying to undermine the president's authority. Is there any doubt that enabling this behavior is going to lead to even more outlandish actions in the future?
Lt. Col. Sen. Ernst's behavior is a problem. It's a problem for her. It's a problem for us, and the problem has grown to the point it is too big to ignore. It's a problem that needs to be addressed in a court. This is just one more reason the egregious behavior of the seditious senators who signed the letter to Iran needs to be addressed. If you agree, then add your voice to the 200,000, 225,000, 250,000, 275,000, people calling for prosecution. We cannot afford to allow this behavior to continue.