Archive for March, 2011

Military Members, the Constitution, and Lawful Orders

Sunday, March 27th, 2011

The oath of enlistment in the United States military as well as the officer’s oath includes the phrase “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.” 10 U.S.C. § 502 and 5 U.S.C. § 3331.

It seems appropriate that military members swear to support and defend the Constitution of the United States rather than simply swearing to support and defend the United States simpliciter. This is significant. It means that military members are more than just neutral tools of the political party in power. This oath places an affirmative responsibility on military members to read and understand the Constitution, to recognize the source and limits of the authority they have, and to uphold the specific system of government that the Constitution sets forth.

But empowering military members in this way creates problems. Among a list of general orders, George Washington once wrote, “It is required and expected that exact discipline be observed, and due Subordination prevail thro’ the whole Army, as a Failure in these most essential points must necessarily produce extreme Hazard, Disorder and Confusion; and end in shameful disappointment and disgrace.” George Washington, George Washington: A Collection (W.B. Allen ed. 1988). General Washington is also famously quoted as saying, “Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.” The military oath of enlistment recognizes the importance of obedience, subordination, and discipline by including the phrase, “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.” 10 U.S.C. § 502.

Inevitably, there will be occasions when the military members’ responsibility to support and defend the Constitution will conflict with the orders they receive. This conflict puts military members in a difficult situation. Which part of their oath should they uphold? How do they evaluate and resolve the conflict? How can they know whether the order is really unconstitutional?

For military members, failure or refusal to obey a lawful order is a criminal offense. The Manual for Courts Martial (MCM) explains that the maximum peacetime penalty for willfully disobeying a superior commissioned officer is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for five years. The maximum wartime penalty is death. MCM ¶14.e(2)-(3). Not only that, but “An order requiring the performance of a military duty may be inferred to be lawful and it is disobeyed at the peril of the subordinate. … [T]he dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM ¶14.c(2)(a). In other words, to avoid the penalty stated above, the military member has the burden of proving that the order he or she disobeyed was unlawful. That’s no small task, even for trained lawyers, and many of our military members are 18 to 22 year-old kids with only a high school diploma.

So, what’s the answer? Clearly we can’t permit military members to refuse orders based on their private interpretation of the Constitution. But what is the threshold? When is an order unconstitutional enough that military members can safely disobey it? The easy solution is to say to military members, if you believe strongly enough in your position, then make your stand and face the consequences. But I don’t find that very satisfying. Any ideas?

Some examples you might react to in your comments are listed below.

Private First Class Bradley Manning—the soldier who gave classified information to wikileaks. Below is an excerpt of his explanation for why he violated orders about the use of classified information:

i think the thing that got me the most… that made me rethink the world more than anything was watching 15 detainees taken by the Iraqi Federal Police… for printing “anti-Iraqi literature”… the iraqi federal police wouldn’t cooperate with US forces, so i was instructed to investigate the matter, find out who the “bad guys” were, and how significant this was for the FPs… it turned out, they had printed a scholarly critique against PM Maliki… i had an interpreter read it for me… and when i found out that it was a benign political critique titled “Where did the money go?” and following the corruption trail within the PM’s cabinet… i immediately took that information and *ran* to the officer to explain what was going on… he didn’t want to hear any of it… he told me to shut up and explain how we could assist the FPs in finding *MORE* detainees … everything started slipping after that… i saw things differently i had always questioned the things worked, and investigated to find the truth… but that was a point where i was a *part* of something… i was actively involved in something that i was completely against…

Lieutenant Colonel Terry Lakin, a decorated active-duty Army flight surgeon who refused to deploy for a second time to Afghanistan because he believed that his order to deploy was illegal. In a video statement he said,

I will disobey my orders to deploy because I, and I believe all service-men and women, and the American people, deserve the truth about President Obama’s constitutional eligibility to the office of the presidency, and the commander-in-chief. If he is ineligible, then my orders, and indeed all orders, are illegal because all orders have their origin with the commander-in-chief as handed down through the chain of command.

Finally, the post-Katrina gun grab in New Orleans, where National Guard troops were ordered to confiscate lawfully-owned firearms from law-abiding citizens.

My tentative opinion is that military members’ responsibility to judge the lawfulness of an order has something to do with the nature of the constitutional question as well as the scope of the military member’s responsibility. But I don’t have any useful generalizations yet. I welcome your comments.