Gentle Hands

I remember reading this book as a kid. A young man learns that his grandfather was accused of being a Nazi and of being involved with atrocities. In the book, the grandfather is a sweet man who spends much of his time in the garden. It's hard to imagine he could have been involved with such evil. The lesson is that monsters are not required. Regular people who love, cry, and show tenderness and gentility have the potential to murder and torture. The challenge of the Holocaust is to recognize that we all have this potential, and to ensure we do not find ourselves on the side of the criminal and immoral.

I remember visiting the concentration camp in Dachau on a deployment more than a decade ago. I was overwhelmed that while looking for the death camp, the town was beautiful and quiet and sidewalks were lined with cafes and quaint shops. I thought perhaps I had driven to the wrong place. I eventually found the camp nearby, across from a small fair ground complete with rides for children. I saw the showers, the bunks, the long courtyard and a memorial with a prominent cross attended by nuns. Given the role of the Church during this period of time, this was an interesting memorial.



I recently watched the "Judgment at Nuremberg" produced in 1961, starring one of my favorite actors, Spencer Tracy. Spencer Tracy's movies are thoughtful and relevant, and this movie while perhaps not historically accurate, is certainly relevant today as the world encounters real or feigned crisis that prompts new laws, and the ignoring of existing laws, in the name of security.

The movie is about law and morality. The defendants are Nazi judges who passed judgment on German citizens. Some were adamant supporters of Hitler, while others like Ernest Janning's character pictured above, knew Hitler and his laws were an abomination but chose to go along with them anyway, instead of protesting and losing position.

The prosecutor, an Army Colonel, opens with:

“The case is unusual in that the defendants are charged with crimes, committed in the name of the law. These men, together with their deceased or fugitive colleagues, are the embodiment of what passed for justice during the Third Reich. The defendants served as judges during the period of the Third Reich. Therefore you, your honors, as judges on the bench, will be sitting in judgment of judges in the dock. And this is as it should be. For only a judge knows how much more a court is than a courtroom. It is a process and a spirit. It is the house of law. The defendants knew this too, they knew courtrooms well. They sat in their black robes, and they distorted, they perverted, they destroyed justice and law in Germany! Now this in itself is undoubtedly a great crime. But the prosecution is not calling the defendants to account for violating Constitutional guarantees, or withholding due process of law. The prosecution is calling them to account for murder, brutalities, torture, atrocities. They share with all the leaders of the Third Reich responsibility for the most malignant, the most calculated, the most devastating crimes in the history of all mankind. And they are perhaps more guilty than some of the others. For they had maintained maturity long before Hitler’s rise to power. Their minds weren’t warped at any early age, by Nazi teachings. They embraced the ideologies of the Third Reich as educated adults, when they most of all, should have valued justice. Well, here they’ll receive the justice they denied others.”

Throughout the movie, various characters claim they did not know about the concentration camps. Some proudly and defiantly admit they did know. One defendant Nazi Judge, when asked about the changes after Hitler’s rise, relates that the judiciary became subject to something other than the objective rule of law, that they became subject to “what was necessary for the protection of the country.” He mentions that appeals were no longer allowed, replaced by special people and groups organized by the political establishment, race was introduced as a legal concept, and that there was the “inflation of the death penalty.” The result, he said, was to hand over the administration of justice to the hands of a dictatorship. Spencer Tracy's character asks him if the judges protested the attack on their independence. The defendant answered that a few did, some resigned, some were forced to resign, and others “adapted” themselves to the new reality.

Spencer Tracy reads the word of a well known legal writing published by the defendant, Ernest Janning, and comments on the idealism contained, and how it was like “our ideals.” He asks how a man could be guilty of sterilization and murder who wrote those words. Gentle hands.

Spencer Tracy interviews his two maids, a German man and wife, about life under the Reich. They don’t want to answer initially. Finally the wife says “We didn’t know about the things Hitler is accused of doing. Hitler did some good things, we won’t say he didn’t do any good things. He built highways, he put people to work. But the other things….” The husband then says, “And if even we did know, what could we do?” Spencer says, “your wife says you didn’t know….”

During the trial, one witness, a Communist, describes how he was taken by force to be sterilized. After his arrest, at the hospital, he relates that the nurse came in for his operation and said she thought the whole thing was terrible. The doctor came in and also said he thought it was awful. The prosecutor asks the witness, “were you in fact sterilized?” The witness nods yes.

While the American judges deliberate on the case, one American judge from the tribunal finds precedent from the opening of a French prosecutor during the International Military Tribunal. He reads aloud, “It is obvious that in the state organized along modern lines, responsibility is confined to those who act directly for the state, since they alone are in a position to judge the legitimacy of the given orders, they alone can be prosecuted.”

Spencer Tracy offers the verdict and sentencing for the defendants:



All are found guilty and sentenced to life in prison. He mentions the great legal mind, Ernest Janning, in particular stating that he:

“...acted in what he thought was the best interest of his country. There is truth in this also. Janning to be sure, is a tragic figure. We believe he loathed the evil he did... Janning's record and his fate illuminate the most shattering truth that has emerged from this trial. If he, and all the other defendants, had been degraded perverts, if all the leaders of the Third Reich had been sadistic monsters and maniacs, then these events would have no more moral significance than an earthquake, or any other natural catastrophe. But this trial has shown, that under a national crisis, ordinary, even able and extra ordinary men, can delude themselves into the commission of crimes so vast and heinous that they beggar the imagination. No one who has sat through the trial can ever forget them... There are those in our own country too who today speak of the protection of country, of survival. A decision must be made, in the life of every nation, at the very moment when the grasp of the enemy is at its throat, then it seems that the only way to survive is to use the means of the enemy, to rest survival on what is expedient, to look the other way. Only, the answer to that, is survival is what? A country isn’t a rock. It’s the extension of one’s self, it’s what it stands for. It’s what it stands for when standing is the most difficult! Before the people of the world, let it now be noted, that here in our decision, this is what we stand for. Justice, truth, and the value of a single human being.”

History repeats itself. Ordinary people with gentle hands can commit evil. The rule of law can be suspended by criminals in power, and unconcerned or immoral public servants who carry out the execution of unlawful orders. Those of us serving in such capacities today must hold firm to our oaths to the Constitution of the United States, the rule of law, and the guarantee of due process. May we never forget.

Soldier Raps About Using Violence Against a Citizen

Apparently a rapper, Soulja Boy, released a rap that insulted those in the Army and the FBI. He later apologized, after being contacted by many angry servicemen. Apparently some are trying to get the rapper's music banned from military bases. One soldier, Stephen Hobbs, made his own rap in response and posted it on YouTube.

Mr. Hobbs is talented and his rap is true to the genre, filled with violence and chest beating. Unfortunately, however, Mr. Hobbs has chosen to encourage violence, perhaps merely artistically, against a citizen who exercised his free speech, and Mr. Hobbs paints a picture of squaring off against the rapper using an Army M-1 Abrams and a .50 cal. Says the soldier, "I've got a whole Army, homie, go on and bring your hood, and we can step toe to toe, I bet I win, go on and bring your boys, and I'm gonna bring my men." While the soldier is using his free speech, he is representing the armed forces while doing so, and his free speech is not the substance of an American system of civilian control over its military. Despite the emotional applause from those who no doubt consider themselves American patriots, this rap response contains a philosophy more closely aligned with China or the old Soviet Union. His response, while clever and well done, is quite simply un-American. I see this attitude from those in uniform displayed to punish free speech not infrequently when the Westboro Church makes headlines. Support for violence against them, even support for using local law enforcement to unlawfully arrest them to prevent the church members from lawfully exercising their unpopular speech, etc. This type of popular "patriotism" erodes our country from the inside. It's a frightening trend when those who take an oath to support and defend the Constitution cheer lead its destruction, and soldiers seek to punish citizens they disagree with using violence. In song or in reality.

Thinking Outside the Box for Cost Savings - An All Slave Labor Military

Contracts, it seems to me, are the basis of a legal system and at the root of good government. Men enter into obligations, but inferior and desperate men choose not to abide by freely accepted obligations. Enter a legal system, and armed agents of the state to carry out the judicial decision, to ensure that men pay what they owe. Even the Constitution of the United States itself is a contract between the People and the Government.

Our nation has many challenges and certainly fiscal challenges. Some predict doomsday scenarios, the collapse of the dollar and the U.S. financial system, and point to gold as the currency to have. Lacking any knowledge of economics, I'm not prepared to offer my two cents (whether it's still worth two cents or not) on that topic. But I am alarmed that the apparently influential Defense Business Board (DBB), which contains two words I'd rather never be spoken in the same phrase, is offering up for congressional consideration this plan to save money. Break your contract.

While some in our government have had the amazing tenacity to tar and feather the S&P for their third party downgrade of the U.S. credit rating, the government admits that it is going to welch on obligations to Social Security beneficiaries and even those who have fought the nations multiple wars for the last decade plus. How interesting. So I suppose if my neighbor wants to borrow money from me, and he's more than $300,000 in debt and spends each year more than he makes, and has let his gardener know that he's not going to be able to pay him for the last twenty years of work as promised, then he deserves a Triple-A credit rating and I would be a fool not to lend to him.

Veterans of course, will not only lose out on their hard earned retirement benefits, but they'll also lose out on the money they were forced to invest into Social Security. Bonus.

The absurdity is staggering, as are some of the characterizations being made for the proposal to end the traditional military retirement in favor of a 401K, for those who have sacrificed so much to fight this nation's wars, whether they agreed with the wars or not. Absurdity number one is the characterization of this new proposal as somehow "fair." Advocates for this new proposal continually cite the fact that only a small percentage of people retire, so most do not enjoy any retirement benefits. Well no kidding, that's because it's "retirement" and it's there for those who spend more than two years in. Just as they knew when they freely accepted the obligation and raised their hand. And why do fewer people stay until retirement? In my experience, it's because people get fed up with not only the deployments, and the separation from family, but the long hours and the horrible base locations and the never ending string of non-mission essential but time consuming bloat. So to reward those who buckle down and continue on twenty years plus of delayed gratification, the solution is to break a contract with them and their families? This isn't about fairness in any way, shape, or form just as giving your gardener a coke after you refuse to pay him for his labor is nothing more than theft.

The second absurdity is this idea that military service is somehow comparable to non-military service. One previously mentioned pain is similar, ie the meaningless bloat likely meant to help a supervisor get promoted, rather than bolster the mission or sell widgets. People often don't like the ideas on the ladder above them, and stress and shouldered responsibility are not universally loved. Think of Kevin Spacey's character in American Beauty, and his joy to quit his well paying job for a fast food joint and a position, "with the least possible responsibility." While it's true that some in the military are gifted at finding ways to essentially live a civilian life in uniform, that is certainly not all in the military. And guess who does the actual fighting of wars? The military has unique demands:

• Less than wonderful base locations. There are places people don't like, and there are places people hate, and the military has plenty of both. Imagine living in a small town as a single person and adding that to your deployment schedule. Living somewhere populated with people "from there" because few would consider moving to that location, let alone staying. Consider the Hierarchy of Needs and consider the effects on morale for a person who is probably more educated than most in the town in which they live. Consider dating and a social life. While education level and life experiences don't necessarily dictate happy relations, limiting the social arena to a Wal-Mart does. While mission is important and can be satisfying, most people find real satisfaction in human relationships, dating, marrying, and family. Too many decision makers, more than likely married, forget just how critically important this fact is to the welfare of their people and mission readiness. Of course, location also hurts some married couples. How does the divorce rate in the military stack up against corporate America, I wonder? How about rates of alcohol abuse? This is just everyday living and doesn't factor in the locations of regular, and constant, deployments, to say nothing of life spent at sea aboard a ship or sub.
  
• Combat. This one is obvious but needs to be emphasized. How many bankers or Wal-Mart employees have to drive through a highway known to have IEDs? How many are required to risk or give their lives? How many clock in, then based on trusting the system, turn around and take the life of another? Who from Staples was kidnapped at work and spent years in the Hanoi Hilton? How many corporate employees kill themselves to avoid going to work?
  
• UCMJ. How many people can be put in prison because they were insubordinate to a supervisor, or because they made a mistake and cheated on a spouse, or criticized the sitting Governor of a State? How many company policies come with death by firing squad for an infraction?
• PT: How many are required every six months to run around a track, do push-ups and sit-ups, and lose their job if they don't run fast enough or pump out enough push-ups at five thousand feet of elevation in the blistering heat? How many civilians are forced to take more time away from family in order to workout, as their bodies slow down in their late thirties or forties?

These two items, in addition to welching on a contract, are so absurd that simply uttering this proposal should receive blank stares of unbelief. The fact that the DBB served up this proposal anyway, leads me to believe that it is a serious problem. They wouldn't have floated something this ridiculous without some kind of support. At least it still has to be voted on. Please note I didn't mention who is to blame for getting us into this financial crisis to begin with.

Colonel George "Bud" Day has seen this welching on a promise before. When the government wheeled out its plan to cut the hard earned retirement benefits of retirees, he went to Court and to Congress. He lost in Court because Congress had not put into law these medical benefits, therefore the military wasn't in a position to make a promise that Congress had to fund. But retirement benefits are law, and serving for years during hard times to receive those benefits should not be so easily swept away. Notably, he didn't get any real support from the military veteran organizations. They were too busy selling supplemental health care policies. History repeats itself. Thanks to the lobbying efforts of Col Day and his band of veterans, he was able to lobby and limit the damage.

For those who do not plan to stay until twenty (and that is many because people are tired of hearing how broken their military is for the last decade plus, while they have to endure it), these changes might be welcomed. They get something "for free" that the government was not obligated to pay them. They have no intention of staying until twenty. The dirty little secret is, the military has a retention problem already despite what is said about the economy, and this proposal if enacted would absolutely decimate our military and our defense. People would get out in droves, stop loss would be enacted, and we would be down to a force of conscripts, not quite slave labor, but people who weren't given the pay they were told they'd get and are not allowed to leave.

But I could be wrong. Maybe the system would work, and we wouldn't need to pin four stars on an airman with only six years in. What would it take to keep people serving in those conditions? Perhaps another Great Depression? Perhaps something that those with the numbers and the inside view know is coming, something that was kicked down the road but not fended off? In such conditions, many people will endure any working conditions just to have a job. Maybe our military readiness won't suffer as I predict, and perhaps those doomsday predictions mentioned earlier deserve another look...

Update on Cop Lawsuit

Thankfully, just prior to the statute of limitations running out, I was able to secure a law firm to handle my civil lawsuit against the cop who unlawfully pulled me over and then followed that up within an unlawful arrest. I have previously blogged about how that arrest affected my career. I will try to keep the blog updated as I can with the latest on this lawsuit, in addition to my lawsuit against the Border Patrol.

A-10 Instructor Pilot & the Courage Checkbox

Brian Miller, a currently serving Air Force Reserve Hawg Driver, gave an important speech and desperately needed reminder to his fellow Oath Keepers and to all of us in uniform. He touches on the importance of "standing up and taking heat" and times "where you cannot sit by and allow even pressure from within your own ranks to keep you silent." In a world filled with pigeons, it is refreshing to see an Eagle spread his wings.

We owe him our appreciation for having the courage to honor his oath at home and for standing up for American principles, instead of going with the flow and conveniently considering logged time in an AOR as somehow a sufficient checkmark, in the courage checkbox.

* Break break*

I just learned that Brian Miller, who was the Pima County GOP Chairman at the time of his speech above, was removed from the local GOP party this weekend. You can read more here, and you can learn more and support this truly courageous public servant by visiting his Facebook page.

A man involved in government service and politics, who is actually willing to take the heat for doing what is right. Isn't that refreshing?

Quick Update on Border Patrol Incident

My lawyers have completed the initial complaint and received a response from the Department of Homeland Security. Having completed the necessary back and forth, my lawyers will soon file the lawsuit in federal court against the agency and several of the agents involved. It has been a long process so far and it will be great to see the Constitution defended and oath breaking government employees held accountable.

For those who may not know of this incident, I have previously blogged about it here. For perspectives on the incident other than my own, I recommend two other blogs, Roadblock Revelations and Thunder Tales.

Time permitting, I will try to keep this blog updated on the progress of the litigation.

BaseOps.Net / FlyingSquadron.Com Out Brief - Part I

As readers will know, I'm a proponent of the liberal SAF/PA guidelines on using new media for the discussion of ideas to strengthen the Air Force. New media has the potential to make up for the intellectual shortfalls that come with "check the box" master's degrees and PME programs that often provide merely the illusion of education.

New media isn't a silver bullet, however, and can serve to reinforce cultural problems that plague our Air Force. I will be starting a several part series detailing the response to the ideas on this blog, and the expectations of our former Secretary of Defense, from a message board I recently was invited to participate on. I'll take my experiences and build on the research performed by a cyber anthropologist I hired to study the culture of the online community, which is included as an appendix in a master's thesis. Having lurked on the forum for more than a decade, I was reluctant to accept the invite, but did so in order to analyze the receptiveness of officers in the trenches to the cause of cultural transformation. Based on earlier experiences, I predicted it would only be a short matter of time until I was removed from the forum. This turned out to be true.

The BaseOps.Net message board is arguably the most successful privately owned new media website, that caters to an Air Force aviator audience, in existence and has tapped into the heart of the officer and aviator culture. Its rich participation and quasi-official status make it the go-to place for all things related to the service, often outdoing official channels for the dissemination of information. Due to its success, most Air Force aviators are familiar with the site. It has its own SIPR side on an official military network where classified information can be discussed, is referenced as a resource in several Air Force documents, is owned by an Air Force field grade officer and is moderated by several active duty and retired field grade officers, including an active duty full bird Colonel. Several of the moderators have significant aviation combat experience.

Those who frequent the site come from a wide background, but are typically from the Air Force aviation community. Others include participants from other career fields, as well as aviation journalists, authors, and at least one elected official with a military aviation background. With such solid credentials among both administrators and members alike, the community crawls with cadets and other hopefuls who wish to learn what it takes to be an Air Force aviator. Older members take it upon themselves to provide the culture and expected norms to the younger members, in a form of online mentorship. As such, besides providing an excellent source of information, the community of the BaseOps.Net forum also serves as a medium for Air Force culture.


Despite the community's incredible utility, not all ideas are welcomed in this forum. Some ideas and viewpoints are suppressed, censored, and ridiculed and, in at least one instance, have resulted in a thinly veiled threat of official reprisal. Those who promote unpopular viewpoints, whether political or philosophical, are not infrequently banned, as administrators and members with status choose who is worthy of belonging and who is not, in the ultimate display of culture. One might be surprised not only by the eagerness for online acceptance displayed by some officers, but also by which ideas and viewpoints prove acceptable or not, and by which behaviors are required for community acceptance. As one forum moderator messaged me, seconds before banning me from the forum, “your future here doesn’t look bright if you continue posting these ideas.” The moderator’s words reminded me of the musings of another officer, who would also likely be unwelcome on the forum:

“He should have been the norm: an independent thinker who did his own research on a daily basis and espoused his views regardless of convention because he had the courage to do so. Courage is a virtue. In the military profession, courage tops the list of virtues required and demanded. My experiences in combat demonstrated that you can’t have the physical kind of courage without the moral kind.”

Col Michael D. Wyly, was writing about his friend, Col John Boyd (pictured above). These are the ideas that were referred to by the moderator. Discussions of non-combat courage, the kind of courage required for cultural transformation, faithful public service, and the prerequisite for physical courage in Col Wyly's view, are not allowed on the BaseOps.Net forum. The idea that officers need to display courage, outside of their aircraft, in order to be public servants who faithfully serve the taxpayer and citizens who employ them, proved incompatible with the prevailing forum culture. The coming series of blog posts will attempt to analyze why that is, how it plays out in behavior required for this particular group's acceptance, and what it might teach us about the broader Air Force culture and the way ahead for the strengthening of our service.

Due for Another Age of Reason?

Jonathan Schell, a visting professor from Yale, wrote an article that parallels my own frustrations with those who warp language purposefully without interest in objective truth. To be clear, reasonable people can debate what language means and certainly some language is unclear. This is, however, completely separate from morphing language simply to avoid the conclusion from the written word that uses unwanted or inconvenient language to express an unwanted or inconvenient point of view.

It appears to me, people often twist language from any text that is viewed as authoritative, be it legal or religious or both, simply to introduce a "debate" into an issue that has a political side to it. This act of twisting language, instead of defining and embracing it, is indicative of a desire to sidestep that language and therefore the point of view of the text itself. Rather than take the honest, though politically more challenging stand, of acknowledging the text and its language and disagreeing with the text itself and its point of view, those who wish to maximize political capital while avoiding the conclusions of a text do so at the very peril of the document itself. It is not that they simply misrepresent what the text says, demeaning its value in one singular instance or maneuver. They damage it for life.

A once clear text becomes mired in "debate" whether credible or not, and continues to be for the life of the text with the potential to marginalize the text and its message. Even the most absurd "arguments" move the most ridiculous view point into the realm of "debate" where the masses happily defer to politics rather than language. It is much easier, safer, and more entertaining to watch a political battle than to consult the document itself. As we become less and less educated, a trend that appears real in our country, and as our "advanced" degrees are increasingly produced by elementary school institutions, it may increasingly become too much for the average American to simply read and reason without having their arguments supplied by sides of a political discussion.

What's next, science and math? 1+1=2? Well, I propose that 1 is not necessarily equal to 1 at all times, therefore it's debatable that 1+1 must equal 2. Says the citizen, "Well, there are two vocal groups with two passionate sides to this debate and they both get news coverage. Surely it's too complicated for me to figure out. I'll wait and see which side wins this,... debate."

While we may not all be concerned with such a scientific approach on first glance, we may become more so when that approach is used by the person constructing our bridges.

If our citizenry continues on this path, unaware of their American birthright and heritage and the power of objective reasoning that has preserved it, and unwilling to use their God given brains, Gail Wynand will make a killing. And we will lose everything greater Americans have provided us the opportunity to enjoy.

If we cannot agree on the basics of integrity, an honest approach to a text we are reading in order to determine what it says and not what we desire it to say, then we have lost our objectivity and we will lose our principles, our legal protections, our religion, our science, our technology, and the ability to defend ourselves. All are based on language, and all require objectivity. We will lose it all for the sake of political convenience and a citizenry too uneducated, too insecure, or too lazy to objectively read and reason for themselves.

For military Officers, recruited from our citizenry and part of our larger society, it is important that we demand from them the ability to read, reason, and discuss intelligently. Our military education processes must guard against censorship, politically motivated limits on acceptable speech, and mob rule to crush well articulated but unpopular views. It is one thing when Joe Citizen isn't able to distinguish the meaning of the written word, it is a worse thing when Joe Captain and his peers are not able to do the same. While Joe Citizen has the power to vote and lobby the government, Joe Captain is part of the government and must be able to understand instructions in order to stay accountable to the will of the People. Joe Captain is constructing the bridges we drive on.

I find that these simple language comprehension and reasoning skills are deteriorating, even among college educated government actors. Perhaps we are already due for another Enlightenment, another Renaissance, and another Age of Reason. Unfortunately, history has shown that even after the Age of Reason, the fruits of that age are threatened not merely by a lack of education or intellect, but rather by a lack of character masquerading as a lack of intellect. Education is important, but character is essential.

The Legality of Libya

"The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation."

- Senator Barack Obama, 2007

As Officers we are required to support the Constitution and to refuse illegal orders. As such, we are independently responsible for determining whether an order violates the Constitution and or law. It's a burden without a doubt. While the legality of an order is solely determined by law, to include the Constitution, it's interesting to note that Congress and Officers of the Executive have weighed into the discussion as have others from the legal communities.

The vast majority of the House of Representatives in a bipartisan effort, voted to rebuke the POTUS over actions they claim are unconstitutional and therefore illegal, in Libya, passing 268-145. There is a debate whether or not Congress will go beyond pointing out the illegality of the action and will add the power of the purse to the discussion. Apparently the Pentagon will fund the war with present funds instead of relying on further Congressional funding. A bipartisan group of ten Congressman are suing the POTUS in an effort to get the Supreme Court to issue an order suspending the efforts in Libya. The POTUS chose to disregard the findings of his own top lawyers, including the Justice Department's Office of Legal Council, Caroline D. Krass, and Pentagon General Council, Jeh C. Johnson. Those lawyers maintained that actions in Libya did amount to "hostilities," and are therefore subject to the War Powers Resolution and the time limit which has now expired. This view is supported by the Attorney General, Eric Holder. While the Office of Legal Council is normally the legal source for the POTUS, he can choose to ignore the findings of his top lawyers, though it is apparently rarely done.

While there are government actors, lawyers, and pundits who will argue each and every side of any issue, individuals who have sworn an oath to the Constitution are required to consult it and law alone, in determining orders they can or cannot carry out. Even a midshipman at the United States Naval Academy has asked this important question on the blog of Tom Ricks, who himself claims the cornerstone of the legality argument doesn't pass the laugh test. Opinions and arguments aside, what does the Constitution itself have to say about this issue?

Those who believe the POTUS can act without being restrained by the law of Congress, with regard to delivering combat actions with military forces, point solely to Article 2, Section 2 of the Constitution of the United States which states:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;

The side arguing for unlimited war powers by the President claim that simply having the title "Commander in Chief" implies the POTUS can command the military unchecked by Congressional oversight.

Those who disagree point to Article 1, Section 8 of the Constitution of the United States which gives Congress the Power:

To declare War,

And also gives Congress the Power:

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

The Congress points to their Power above in the law they passed to carry into Execution the power of the POTUS regarding their power to declare what is War, and what is not. The law they passed is Title 50, Chapter 33, the War Powers Resolution.

In this law they define the limits of the President stating in 1541(a):

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

And in 1541(b):

Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.

And in 1541(c):

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

(1) a declaration of war,

(2) specific statutory authorization, or

(3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

And in 1542:

The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.

And further declares what is considered to be hostilities, or war, in 1543(a):

In the absence of a declaration of war, in any case in which United States Armed Forces are introduced—

(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances;

(2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or

(3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation;

The Congress also specifies when the POTUS must terminate use of Armed Forces in 1544(b):

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 1543 (a)(1) of this title, whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress

(1) has declared war or has enacted a specific authorization for such use of United States Armed Forces,

(2) has extended by law such sixty-day period, or

(3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces.

It is of note that the President is not authorized to extend the 60 day period to 90 days unless Congress is physically unable to meet to grant the authorization or declare war as a result of an attack upon the United States. In that case, the POTUS may extend the hostilities to 90 days only after providing a written certification to Congress that unavoidable military necessity requires the continued use of the military to bring about a prompt removal of forces.

As military Officers, we are charged with supporting the Constitution and disobeying unlawful orders. Popularity, convenience, and the opinions of others play no factor in our decisions as Article VI of the Constitution is written. We must consult the Law, and ensure our actions are bound by the limits set in the Constitution.

Mental Reservation, Purpose of Evasion, and Service Before Self

I have spent some time now sparring with some fellow Officers on the importance of factoring the Constitution and the law into our professional decisions in debates across the interwebz. It has been a positive experience for the most part. There are plenty of Officers who understand the importance of the document they swore before God to support, defend, bear true faith and allegiance to; an obligation they took freely without any mental reservation or purpose of evasion. Sadly, they rarely share these opinions in public fearing they will be seen as fringe or nutty.

Still more unfortunately, there are a number of others who apparently did not take the oath in earnest, who took it without considering what they were pledging, or who took it with a mental reservation or a purpose of evasion.

Those with a purpose to evade their obligation likely stay quiet in such matters. Others offer up mental reservations as a justification to the shirking of their duty. There is no doubt the oath is solemn and serious, and defending something always means some risk to yourself. I believe this risk is the sticking point for many Officers who wish to pick their battles in order to actually avoid a fight that carries personal risk. For them, our Constitution does not factor into a battle worth fighting and instead they prioritize their careers, their convenience, and their social or professional standing over the oath they swore. These Officers demonstrate a purpose of evasion, the purpose being themselves rather than making good on their oath to the People. Always at the root of dishonorable government action is self over service.

The primary mental reservation I have witnessed from these Officers is fear. These Officers will remind you that you're really risking yourself if you take the viewpoint of your oath and refuse an unconstitutional order. You better have your ducks in a row, better hope others agree with you, better make sure you're right or you're going to get it. This mental reservation isn't actually offered for the benefit of the principled; the principled are well aware that principle is typically inconvenient in our largely unprincipled world. Instead, it's offered as a rationalization to the person uttering it, to assuage the guilt they feel because deep down they know they are shirking their duty for their own convenience, and are acting without honor.

Another common mental reservation is the idea that we as educated military Officers are not able to read the Constitution or the law, in order to determine for ourselves the legality of our professional actions. The purpose of evasion here is obvious. Officers with this viewpoint seek to evade the oath they took to defend the Constitution, instead delegating that authority, without the legal power to do so, to others in the government. While the Constitution requires military Officers be bound to the Constitution, and not to the interpretation of it by any branch of the government, these Officers evade the oath they took by diffusing the responsibility they freely accepted by passing the buck. Imagine if you hired a caretaker for your home, wrote out a list of things that the employee must do and could not do, in the maintenance of your home and made him or her promise with the strongest language to be bound to your instructions. What would we think of that same employee not carrying out our instructions because somebody down the street said they didn't apply, were too old, not important, or meant something different? What if that employee said, "Well, it's debatable what garbage is or is not, so I'm just not going to take it out despite my instructions." What happens to the Home we live in when we can't depend on our housekeeper to follow instructions?

There are those among us who have a purpose of evasion to their oaths. They are not interested in the hard work required by the instructions of those who employ them. Rather, they are interested in preserving their own convenience and they make a political maneuver, rather than a principled one. They are cowards and they are a cancer to our nation.

We have many cultural challenges in our service and despite our Core Value of "Service Before Self," many place themselves and their convenience before service. In my younger years I argued against this Core Value despite being a fan of Gen Fogleman. My argument was that of rational egoism, that everything we do is essentially for self and it cannot be any other way. I still agree with this perspective. The trick though is to convince or recruit Officers who value the principles of the greatest nation that has ever existed, and the rule of law, and to value the principles of our Founders above themselves. One would think with the generous money our citizens pay us, and the emphasis on service and sacrifice, that this would be easy. Unfortunately, the character of many we employ belies this assumption. Patrick Henry said give me liberty or give me death. He valued freedom so much that he wasn't willing to live without it. Unfortunately many Officers value their own convenience and comfort over the principles of America. For Officers who understand and appreciate the greatness of America, this is not a problem and they are willing to sacrifice themselves for it because they value America more than their personal convenience. Other Officers do not. Despite my philosophical argument, the value of the Core Value of "Service Before Self" is to remind us that there is something more important than our comfort, and we are being paid by the People to support and defend it.