15th

Over My Paygrade

June 2011

By

A fellow Academy mid posted this piece for Thomas Ricks’ blog questioning whether or not operations in Libya were constitutional. The masterpiece can be accessed here:

http://ricks.foreignpolicy.com/posts/2011/06/13/a_midshipman_asks_before_it_is_too_late_should_i_refuse_orders_to_continue_the_unco

Yes, the Constitution gives Congress the power to declare war. No, President Obama did not ask Congress to drop bombs in Libya. I agree that the law is ambiguous on who can deploy military force in this situation, but that question should be left for constitutional law professors and politicians to debate (not officer candidates).

I quote, “It is [servicemen and women’s] professional obligation and ethical duty to disobey their orders until constitutional and legal requirements are either changed or met.” So because ENS X and the Commander-in-Chief differ on whether or not air strikes constitute war, ENS X should “disobey” POTUS. We wouldn’t have a Constitution to begin with if we ran our military this way.




Posted by jjames in Foreign Policy


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  • P.S. Wallace

    The one thing I will strongly disagree with here is who should argue the issue. I personally think instead of constitutional law professors and politicians, the question should be left to the citizenry at large to debate.

    For after all, we have a Republic. If we can keep it.

  • Chuck Hill

    The writer is wrong when he says, “Officers of the United States Military take an oath to obey only lawful and constitutional orders and refuse all others. The servicemen and servicewomen who are currently fighting over Libya took that oath. It is their professional obligation and ethical duty to disobey their orders until constitutional and legal requirements are either changed or met.”

    The oath requires that the officer obey the lawful orders of those appointed over him. The oath imposes no obligation to obey unlawful orders, but it also does not require that the officer make a determination of the legality of orders. In effect there is a presumption that orders are legal. Only if the orders are in fact illegal is the officer released from his obligation to obey and that ultimate determination does not rest with the officer.

  • Fouled Anchor

    Unless I’m missing something, the oath for officers as required by U.S. Code does not include a reference to obeying orders lawful or otherwise.

    “I, xxxxx, 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.”

    http://www.law.cornell.edu/uscode/5/3331.html

    The oath of enlistment and reenlistment – for enlisted personnel – does contain a such verbiage: “…that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”

    Regardless, either oath should understood as a requirement to obey ALL ORDERS unless one knows that an order is clearly illegal. In the case of the mission in Libya and the War Powers Act, most people are not qualified to question the legality of the order, nor should they.

  • Chuck Hill

    Fouled Anchor, Sorry, I remembered incorrectly. Thanks.

  • http://fareastcynic.com Skippy-san

    Did Reagan ask permission to drop bombs in Libya? Or Bush I in Iraq? (Post Desert Storm that is).

  • M. Ittleschmerz

    When officers wonder things like this midshipman has it is often less “illegal orders” and far more “I have different political beliefs from those held by President _______”

    The “illegal orders” discussion, as Tom Ricks pointed out at his blog when he first published this commentary, is about war crimes – intentional targetting of civlians, killing of prisoners, rape, torture and so on. The average officer is not, and should not, be thinking like a judicial constitutional scholar when it comes to matters of policy.

    But, I do find it almost comical that we now have the War Powers Act being debated as canonical constitutional while two decades ago it was being denounced as an encroachment upon executive power and blatantly unconstitutional.

    As always, where you stand is determined by where you sit. One more reason not to play the partisan game while serving.

  • CDR Lumpy

    When Congress passes statutory law which defunds the war in Libya and attaches language which prohibits the use of any appropriated funds on the conduct of a war, much like what happened in Vietnam/Cambodia, only than would an order to prosecute war in Libya be considered illegal.

    Refer to the Cooper-Church amendment to the 1970 Foreign Military Sales Bill.

    Until that statutory language appears in a bill signed into law, officers are required to obey the lawful orders of the CINC.

  • Big D

    Skippy: El Dorado Canyon occurred fully within the limits imposed by the War Powers Act. Operation Desert Storm operated under a congressional AUMF, fulfilling the conditions required by the War Powers Act. So did OEF and OIF.

    So, what’s your point, again?

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