"...do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic..."

"For the good of the Air Force, for the good of the armed services and for the good of our country, I urge you to reject convention and careerism..."
- Secretary of Defense Robert Gates, Maxwell AFB, April 21, 2008

"You will need to challenge conventional wisdom and call things like you see them to subordinates and superiors alike."
- Secretary of Defense Robert Gates, United States Air Force Academy, March 4, 2011

Sunday, May 8, 2011

The Constitution and Assassinating Americans

In at outstanding article, Reason magazine recently interviewed Stewart Rhodes, founder of the Oath Keepers. In this article, entitled Constitutional Refuseniks, Mr. Rhodes made some important observations. Full disclosure, I am a member of Oath Keepers (ETA: I used to be a member of Oath Keepers). When asked the purpose of the Oath Keepers, Mr. Rhodes responded:
The mission of Oath Keepers is to persuade the guys with the guns not to violate the Constitution. I look at it as constitutional triage. I worked for a congressman; I've worked with judges. And it seems clear to me that judges and politicians don't really care about our rights that the Constitution is supposed to protect. So I'm focusing on the guys with the guns, the ones who ultimately enforce the laws, on educating them about the Constitution. I think most of them are honorable people, but there's an ethos, especially in the officer corps in the military, that focuses on following orders. It's almost as if they're taking the oath to uphold the Constitution to mean that you should categorically defer to the president. Now I think civilian authority is important, but if the president asks the military to do something that isn't constitutional, their loyalty is to the Constitution, not the president.
The oath Mr. Rhodes refers to is required by the very Constitution itself. Article 6 of the U.S. Constitution states, "...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..." The oath established is the one military officers today take, right hand raised, when they swear before God:
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; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
The oath of a military officer differs slightly from the oath taken by enlisted members of the armed services. While both take oaths to support the Constitution, the enlisted oath also contains an oath to obey the President of the United States, "according to regulations and the Uniform Code of Military Justice." Notably, the oath of the commissioned officer contains only the oath to the Constitution, and makes no mention of obedience to the President.

All military serviceman, however, are required by Article 92 of the UCMJ to obey the lawful orders of those appointed above them, which most certainly includes the President. The key here is the word "lawful." Likewise, they are required to disobey all unlawful orders and may be punished if they comply with illegal orders. The Constitution is the highest law of the land. It trumps all other laws made throughout the nation. While its text is certainly debatable in many areas, in other sections it is quite clear. If Stewart Rhodes' view on the ethos of the military officer corps is to be believed, military officers may tend to place obeying orders over their duty to support and defend the document that anchors the character of America to day to day reality.

Marjorie Cohn, professor at the Thomas Jefferson School of Law, has the following to offer in the introduction to her book, Rules of Disengagement: The Politics and Honor of Military Dissent:
When the government at the highest levels ignores these rules, when the conduct of a war and the war itself violate the law...soldiers are forced into a legal and ethical dilemma. They must decide whether to abide by law and conscience--knowing the government does not--or to follow orders without regard to the law.
If Mr. Rhodes' observation on the ethos of the military officer is correct, we must ask ourselves why that is the case. Why do officers who have taken an oath to support the Constitution, rather than obey orders, choose to place obedience to orders above their oaths in face of UCMJ action for failing to disobey unlawful orders that violate that Constitution?

Perhaps it is a matter of knowledge, that officers take the oath to a document they have not read and do not understand. That would appear to be the hope of Mr. Rhodes as his Oath Keepers organization seeks to educate government employees who wield lethality. Perhaps it is a matter of character, that officers take the oath insincerely, instead of taking the obligation freely, without any mental reservation or purpose of evasion. Or perhaps Mr. Rhodes is incorrect in his interpretation of the Constitution and therefore errs in his estimation of commissioned military officers.

A concrete example might help illuminate the discussion. In the same article, Mr. Rhodes observes:
But now you have Obama, who has not only not renounced those powers but has expanded them. He also now claims the power to assassinate American citizens his administration deems enemy combatants with no oversight. That's just frightening.
Is the government assassination of American citizens wherever they may be, even off the battlefield, perhaps while dining with their family a violation of the Constitution? What does the Constitution have to say about such action? Thankfully, this issue is one of the clear sections of the document. It defines Americans who make war on America.

Article 3, Section 3 of the U.S. Constitution states:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
Citizens deemed enemy combatants are those who levy war against the United States, adhere to the enemy, and give aid and comfort. The Constitution has spoken on this group of Americans. Not only does it define them as traitors, it also provides guidance on how they are to be dealt with.

Article 3, Section 3 of the U.S. Constitution continues:
No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason...
The Constitution mentions treason in other sections, as well. Article 1, Section 6 of the U.S. Constitution states:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses,....
Article 2, Section 4 of the U.S. Constitution states:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Article 4, Section 2 of the U.S. Constitution states:
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
The Constitution also speaks to the rights of Americans more broadly. Article 2, Section 2 of the U.S. Constitution states:
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
The Fifth Amendment to the U.S. Constitution states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
This amendment bears repeating. Citizens will not "be deprived of life, liberty, or property, without due process of law..." The due process for treason is stated in the Constitution itself in Article 3, Section 3. The federal government cannot take the life of a suspected traitor, without the due process guaranteed to Americans who commit treason.

The Sixth Amendment to the U.S. Constitution states:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence...
Borrowing on language from the Fifth Amendment (which bounds the federal government), the Constitution also binds the states in the Fourteenth Amendment. It states:
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And finally, the Tenth Amendment to the U.S. Constitution states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Nowhere in the Constitution is there found the power of the federal government to assassinate American citizens. The Tenth Amendment makes it clear then, that since such a power is not delegated to the federal government, it does not have the power. Likewise, other sections of the Constitution make it clear that American citizens, even Traitors who make war on the United States, have the right to be captured, tried, convicted, and sentenced to the punishment mandated by Congress.

If Mr. Rhodes' observation of the military officer ethos is correct, then the reason well paid commissioned officers would choose to obey an unlawful order over their oaths to the Constitution is a matter of a lack of education, or a lack of character. For the sake of our nation, I hope it's the former. At least that can be corrected. Stewart Rhodes is a former Army paratrooper, Ron Paul staffer, graduate of Yale Law School (the top law school in the nation), and a former clerk of the Arizona Supreme Court.

It's my hope he has great success before his organization, and others, find themselves on a secret hit list that makes McCarthy's bookkeeping appear moderate. Regardless, military officers are required by their oaths, by the laws of our nation, indeed by military law to refuse to carry out unlawful orders no matter where they come from or how many around them obey. I only hope they have the character and integrity to do so despite the personal risks. As Stewart Rhodes said:

It doesn't always turn out well. But when you take an oath you're not saying, "I'll abide by this oath only if it turns out well for me." You're saying that the oath is important enough that you'll abide by it no matter how things turn out.


  1. We've already seen the rot in the financial sector whereby CEOs destroy accounting control mechanisms by firing employees who stand up to them who are protecting the customers and the company. With people in place who will aid the looting of the firm and allow fraud to take place to save their "careers" and who may not benefit financially because they were following orders, the higher ups walk away laughing all the way to the bank while the firm and many lives are ruined. Military organizations are in many respects like modern corporations. They are top-down hierarchical organizations and people who question the leaders' orders are "punished" as examples or to remove impediments. Officers have careers and while they may risk their lives or operations, most are not likely to risk their careers. At least, that is the observation of this high ranking admiral (http://ricks.foreignpolicy.com/posts/2011/05/03/the_likely_next_chairman_of_the_jcs_on_operational_risk_and_career_cowardice). Laws that are not enforced are toothless. If it is your job on the line and if the penalty is following an unlawful order that will not be punished, many people follow the order to save their career and their livelihood. I wish it were the other way around, but courageous individuals who sacrifice their careers for the greater good are seen as fools by their peers, when they should be seen as heroes. Unfortunately, people are seldom rewarded for preventing disasters and systemic failures. The safety officer who reduces the accident rate is seen as doing his job rather than as someone who saved lives. But if he is under pressure to look the other way due to budget constraints and he baulks, how likely will he be promoted with a bad review? I don't disagree with anything you said. I just believe that you missed how people are manipulated into doing either bad things or ignoring bad conduct on their watch. Morals are the first casualty when you think your survival is at stake, even if that survival is abstract like a career.

  2. JB, thanks as usual. We agree on human nature, or at least the current culture. But if we can't rely on military officers to uphold their oaths,...I don't know how we can expect any public servant to. Perhaps we need to look into a radical transformation of how we do business, something similar to "tenure" for officers, to encourage correct and loyal action.

    Thanks for the link: http://ricks.foreignpolicy.com/posts/2011/05/03/the_likely_next_chairman_of_the_jcs_on_operational_risk_and_career_cowardice

    Interesting read. Strange that those who proclaim they're willing to give their lives are often unwilling to give their careers. Especially as much money as we pay officers.

    BTW, the wife has informed me I should have expanded the 5th Amendment citation in my post and left out the 14th Amendment one. Though they are very similar in wording, the 14th applies to the states whereas the 5th applies to the federal government.

  3. I am no longer a member of OK, but I do support the good work they do.