Fascinating story in the New York Times today. I'm glad to see a military officer concerned about the Constitution and willing to make waves. That demonstrates a tiny amount of moral courage and professionalism that, in my experience, makes this junior military officer likely the best officer I have seen.
Sadly his performance falls well short of what is required. He got bad advice from the New York Times columnist and Yale Law professor, Bruce Ackerman. Perhaps well intentioned, but still incredibly bad advice. If public servants like Captain Smith follow Mr. Ackerman's recipe then the whole of our checks and balances is reduced to one branch. The judiciary.
I wish Captain Smith luck in getting some "guidance" (as another person's opinion might guide a personal decision) from the courts while he continues to participate in what he believes is a violation of our Constitution (and I agree with him completely insomuch as he realizes actions against ISIS and Syria are unlawful). But the reality is that not obeying our supreme law and his oath, and instead passing the buck to yet another branch of government, does not resolve his issue or his burden regardless if or how a court rules.
Captain Smith's move may certainly be useful for a broader public discussion, but it is also a "mental reservation or purpose of evasion" which he also took an oath to refrain from in his defense of our Constitution.
Sorry, Captain, but public service ain't no chump game. There is no easy path in this job. You either do the right thing as you promised, or you don't. Waiting for some other public servant to make your professional decision for you is the wrong thing to do. The burden of our oaths is real.
The comment I posted on the New York Times page:
Ackerman is wrong in the advice he gives Captain Smith and his careerist/jurist rationale is even worse. While my opinion here is my own and doesn't represent the Air Force, the DOD, or the United States government, I say this as a military officer who once refused an order that violated the Constitution in the most egregious manner possible. With just over 15 years of service, I resigned my commission. It wasn't accepted and after more than a year of being removed from combat duties, I was vindicated, my security clearances were returned and I continue to fly aircraft and retire in weeks.
Mr. Ackerman's advice to Captain Smith is not only wrong, it's dangerous to our nation. Article Six of our Constitution requires military officers such as Captain Smith to take an oath to support the Constitution. What is key about Article Six is not just that it requires that oath of executive officers, but that it uses the exact same line to require the oath of judicial officers, as well. It states, "...all executive and judicial officers...shall be bound by oath or affirmation, to support this Constitution..." It does NOT require judges to support the Constitution and military officers to support the verdicts of judges.
The Constitution is what we swear to support, not government telling us what it means often like pigs with paint cans pointing to the side of a barn.
As military officers we must uphold our oaths, regardless of courts or careers, and simply cannot get it wrong.