Constitutional Question of the Day - Representation

Did the Constitution speak to the People as represented by their States, or to the People directly? That's my latest conundrum as I try to understand the document better. Were rights guaranteed to the People separately from any government representation, or was it understood that the People would be represented by their individual States?

If rights were granted to the People separately, how would they go about exercising these rights when challenged by both State and Federal government? Did the Constitution provide machinery for them, and if so what kind?

Were the delegates to the Constitutional Convention representing their individual States (which in turn represented their People), or this third group of the People directly? What about the delegates at the individual Ratifying Conventions? Who exactly did they represent when they gave a yay or nay to ratify the Constitution? I find it highly unlikely these delegates were, across all the colonies, free of the influence of their State governments. Did they represent their States, or did they represent the People directly? Or did they represent both simultaneously?

And how does this situation, whatever it may be, inform the understanding of the Constitution's granting of powers? I don't know yet but studying this is in the queue.

Memorial Day Salute to a Dead Marine

Jose Manuel Guerena (November 23, 1984 - May 5, 2011)
RIP Marine

This Memorial Day, as we remember those who have risked and given their lives for our freedom, let's remember that a great deal of work still needs to be done to make the "land of the free" a reality. We can best honor them at home by valuing our rights codified in our sacred Constitution and remembering the words of Thomas Paine, "Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it."

We may not all have the opportunity to charge a hill or storm the beaches of Normandy. But we all have the opportunity to risk some small measure of our comfort to slow or halt grave threats to our country and our way of life. It starts with caring about something above yourself and truly appreciating the sacrifices of great Americans who before us labored for the freedom so many of us now take for granted.

Happy Memorial Day.

Stars and Stripes Interested in Your Thoughts

I was recently contacted by a reporter from Stars and Stripes. Here is the relevant portion of her inquiry.

My name is Jennifer Svan and I’m a reporter with Stars and Stripes in Kaiserslautern, Germany, and I cover Air Force/USAFE issues. I’m doing a story about the projected shortage of Air Force fighter pilots, per Gen. Welsh’s email asking for feedback from pilots as to why they’re getting out of the Air Force.

I’m trying to find some current and/or retired pilots to ask them about their personal experiences in the Air Force: What is/was the job like, what are their future plans or why did they choose to get out, why do they think the Air Force may be losing so many pilots, etc. I’m also wondering what sorts of job opportunities are out there for fighter pilots. What will they do when they get out, and is it a difficult decision to give up flying a fighter jet in exchange for a civilian job?

If you're interested in providing your thoughts, she can be contacted at svanj@estripes.osd.mil and I'm sure would appreciate your input. Hopefully this is another way in which leadership can take a temperature reading. If she gets responses from those who are choosing to continue their service, along with those who have decided to pull chocks, this might prove valuable.

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.

Temp Reading Making it Up the Chain - And it's Not Good

My last blog post concerned the Reduction in Force (RIF) and the Voluntary Separation Pay (VSP) program that has recently concluded, and the outrage that has been generated among much of the Air Force rated force. More than 50 negative comments were posted to the story released on the official Air Force website. A Facebook group was created concerning the VSP Program. Letters of complaint have been to sent to Congressman, there is talk of legal action, and according to participants at a well known online Air Force pilot watering hole, some leadership is starting to see the looming manning crisis that is coming and committing to take action.

Apparently General Welsh, USAFE Commander, sent the following mass email out recently:

To USAFE Fighter Pilots


I need your help. During a recent 4-star meeting, we talked about what appears to be a pending fighter pilot shortage. The AF's rated personnel management folks are projecting a 300 fighter pilot shortfall in FY13 that could grow to over 1000 by FY21. They also told us that the fighter community's bonus "take rate" is 10% lower than the rest of the rated community. Obviously, many of you are leaving, or thinking about leaving, the Air Force for other opportunities. If you've already made the decision to do so, then please accept my sincere thanks for your service and best wishes for every success in the future...it's an honor to have served beside you. My concern is not that you've made the choice to pursue a new path, but that we don't really understand why you made the choice.

You may have heard the story about a Captain fighter pilot who wrote a letter to the Commander of Tactical Air Command a couple of years after the end of the Vietnam War. The letter started "Dear Boss, Well, I quit" and went on to list the frustrations that he and his peers were experiencing. I just read a more recent version, written in 2009. It's attached to this note. If you believe the author, some things may not have changed much in 30 years.

Our Air Force is in a dynamic state of change and its leaders need to know why some of their most talented, highly trained people are leaving. As we transition to a 5th Generation fighter force, we simply can't afford to lose front line fighter pilots at our current rate.

I understand that it's a busy time to be in the Air Force. The fighter community is faced with an increasing ops tempo, fewer fighters, less flying, more non-flying jobs and an unclear career sight picture. My gut feeling is that this combination contributes to good people leaving, but I doubt these are the only factors. I suspect some of the issues raised in the Dear Boss letter are also in play. But, most importantly, I don't know for sure. And I don't believe AF leaders can make smart fighter pilot force management decisions until we do.

Interestingly, we also have a fighter WSO shortage which will persist for the next few years. But the longer term trends for that career field are positive. That's clearly not the case with fighter pilots and I want to know as much as possible about what's causing retention to move in the wrong direction.

So, I have a favor to ask. I'd like to hear your thoughts on what is driving fighter pilot retention down. You can send them directly to my CAG at [removed]. They'll strip names off the inputs, then pass them to me, unedited. I'm looking for the ground truth as you see it, not the filtered, watered-down "this is what the boss wants to hear" truth. Once I've seen it all, I'll give you some feedback...including what I plan to do with the info.

Let me close by saying "Thank You" to you and your families for all of your hard work and sacrifice. You, and so many other great Airmen in so many career fields, are the reason we're the world's greatest Air Force. But no matter how good we are, we need to get better. When your job is to fight and win your Nation's wars, you can never be good enough. I will do everything in my power to make USAFE more combat capable; that includes trying to keep our best fighter pilots on Active Duty. If you think "best fighter pilot" refers to you, please let me know what you think. If you don't, this note isn't for you.

R/Boomer

In my experience, pilots are counting the days until they can get out of the Air Force. I've even heard half-hearted dreams of escaping to South America. Many feel they are in a job with long hours located where there is no hope of getting married or having any meaningful social life. They look at long commitments after pilot training and are scared they will end up single, unfulfilled, and old. If they're already married, they want more time with their families. They're tired of the ops tempo. They're not concerned about flying for the airlines, they just want out. They're tired of the politics, the quality of leadership, silly promotion requirements and hours spent crafting performance reports that are all but useless and time consuming. They're done with brass escaping accountability, double speak, and different spanks for different ranks. They're tired of not being able to believe the words that come out of the mouths of their leaders. They're tired of support being cut, and non-flying tasks being put in their laps after a long shift of flying. They look at the end of the tunnel and are not convinced they will be taken care of, if they continue to serve. Many anticipate a stop loss, because they know what leadership apparently does not, that the Air Force will be hemorrhaging rated combat experienced talent in the very near future. Most agree that the Air Force should have seen it coming.

They know they have signed the dotted line, and will serve out what they agreed to. But what they are making clear to any who will listen, is they will not be around longer than required.

Accurate Temperature Readings

I love how the Air Force is harnessing the internet and its liberal blog policy to provide leadership with a more accurate reading of what is going on in the service. The recent Reduction in Force (RIF) initiative, and the Voluntary Separation Pay (VSP) program it spawned, has provided a rare glimpse into the opinions held by many airmen. Especially the rated aviators who most directly wield America's airpower.

Check out the comments section from this official Air Force webpage: http://www.af.mil/news/story.asp?id=123252616

For more background information the following thread on Air Force "force shaping", from a website that is a well known cyber watering hole for Air Force aviators, is priceless: http://www.flyingsquadron.com/forums/index.php?/topic/4377-force-shaping-vsp/

According to the thread above, an email sent to Air Force commanders indicates that the Secretary of the Air Force was "overwhelmed" by the number of people who wanted out of the service, and particularly the number of rated individuals. It seems the temperature reading hasn't been all that accurate at the top, and it's good to see the internet is providing it for Air Force leadership.

Where There is Smoke, There is Fire

Tom Ricks has a recent post about the observations of a Vietnam veteran, Dan Hughes, who was faculty at the Air Force's Air War College (AWC) for eighteen years. AWC is one of several "academic" programs run by the Air University (AU) arm of the Air Education and Training Command (AETC). I'll sum Mr. Hughes' picture up as I understand it. AWC is an expensive joke that caters to students who are also a joke.

Mr. Ricks has also posted a response to Mr. Hughes from another AU faculty member.

I have never attended AWC and I never will. As readers of my blog know, I have a "master's degree" from AU's online Air Command and Staff College (ACSC) and I have blogged about my previous experiences with this program and with AU and AETC. In fact, the blog you are now reading is a direct result of my experiences with Air University.

When people ask if I have a master's degree, I say no. I checked a box. It's not the same thing.

What I have read of Mr. Hughes' critique resonates greatly with me. I have seen the products of AWC and I have served in AETC, had significant dealings with the instructors, faculty, and dean of the ACSC online program, and I have engaged several AU processes concerning academic freedom.

Readers should listen closely and take seriously the observations of Mr. Hughes, as one would listen to a surgeon who has diagnosed a cancer.

A cancer that is routed deeply in a command that has been called, Advancing Enron Through Careerism (AETC).

Good Leadership vs Great Leadership

Great leaders embrace accountability in all that they do, and are willing to accept criticism from within or outside their organization. Holding leaders to a high standard of performance and ethics is a credit to the Air Force.

- Secretary of Defense Robert Gates, United States Air Force Academy, 4 March 2011

What's the difference between a good military leader and a great military leader? Secretary Gates nailed it above. He absolutely nailed it.

As I used to tell students in my previous assignment, a great commander is the commander you can forcefully disagree with on matters important to him or her, and who will not destroy you as a result. It takes a measure of security and confidence to be such a leader, and it seems to me those characteristics are only observed in competent individuals who have a healthy dose of perspective.

I recently got back in touch with a man I consider to be the best squadron commander of my career. He's retired these days, but he is the epitome of the great commander in my mind. He worked long hours, cared about his people, was unwavering in his commitment to the mission, went out of his way to work magic to provide any comfort to his folks that he possibly could without sacrificing the mission, and had a wonderful personality and amiable character. Those qualities define a very good commander. He was more than that, however, he was a great leader like the kind Secretary Gates discussed at his alma mater. While deployed, he disagreed with a decision I had made concerning my crew. The issue at hand was one that was important to us both, an issue that invoked the passions, a hot button item. He didn't change the decision I had made for my aircrew, but he invited me to reconsider it before my next deployment. There were people above him who wanted my head for the decision I had made, and while this commander disagreed with my course of action, he provided me the breathing room to fight him on a matter he was invested in. He provided me the space to disagree with him, and didn't punish me for doing so. He was a truly great commander. I'll leave it to the reader's imagination whether or not he ultimately agreed that I had made the right decision, but I can honestly say it doesn't matter if he did or not.

A great leader is somebody who doesn't agree with you, who doesn't agree with your approach, who thinks you are a quixotic officer tilting at windmills and picking battles that are better left not fought....yet who who does not punish you for having a different viewpoint. In the dangerous and complex world we live in, we need to recognize the value of different views.

Fortunately, I have recently witnessed another display of great leadership from several commanders in my current organization--the same organization that produced the great squadron commander I discuss above. I remain convinced that military organizations most closely involved in actual combat produce superior leadership, just as I remain convinced that organizations removed from actual warfare tend to produce inferior leadership.

I'm happy to say that the fabricated and dishonest Letter of Reprimand (LOR) I received in my previous assignment no longer exists thanks to great leadership. This fact changes nothing for my career. Its value to me, however, is immense.

Loyalty vs Integrity

Tom Ricks has a great post on his blog concerning leadership expectations of loyalty and expectations of integrity. As usual, he gets some fantastic comments on his post. It's an important discussion.

I thought it was particularly interesting that it didn't take long for somebody to comment on corporate America.

Disconnect Between America and its Military?

As the Washington Post reported, our Chairman of the Joint Chiefs, spoke a month ago at the National Defense University and observed that there is a disconnect between our military and the American public. Admiral Mike Mullen said they don't know us, and we don't know them. He pointed out that it's dangerous for us not to know them.

The recent turmoil in Egypt and the involvement of its military has made me ponder the role of the military in a democratic country. From the limited accounts I have heard, it appears Egypt's military refused violence on its people and acted as a voice of reason for Egyptian citizens. I wonder if that hellish experience were ever to visit our shores (and I pray to God that it never does), what would our military do? While I can't shake the images of Kent State, I think our military would do the right thing for our country. While we have disagreements and various political stripes and ideologies, we do have good people in our service.

Still I would advocate a much greater study of the U.S. Constitution in our professional military education. If I had my way, junior officer PME would include some of the best Constitutional scholarship our country has to offer. I envision visiting professors from the top universities, debate and discussion. I would include in the curriculum speakers from organizations such as Oath Keepers, and the Cato Institute, and others from across the spectrum of debate. I believe the importance of our Constitution rates serious study and consideration by those who have sworn before God to bear true faith and allegiance to it.

The rights of our people, military and civilian, and our basic freedom of speech and debate, grievances, worship, and liberty from the physical oppressions of government are laid out before us in our wonderful Constitution, and mostly in our Bill of Rights. I believe if we in the military take real efforts to honor our oaths to support and defend this great document, we will perhaps go a long way in understanding our citizens who employ and rely on us. To do that, we must dedicate study to our document and our rich American history, and to the jurisprudence and case law our courts have produced. It is a scholastic enterprise and there is plenty of room for debate and disagreement. While there many never be unanimity in our Constitutional views, when we better understand the document we can better defend it. When we better support and defend it, we support and defend Americans.

While I have not always lived up to this standard, it is my view now that service members should take every opportunity to exercise their American rights, so that we may prevent their apathetic loss over time. This perhaps will help us connect better with our citizenry. So many needs and desires of Americans have been addressed over years of pain and a history of struggle and, at great cost, have been etched into our sacred parchment. While this struggle and history is not complete, an understanding of it is an essential start for those of us in uniform to connect with our civilian brothers and sisters.