Wednesday, May 11, 2016

David Codrea: Are Enough Oath Takers Oath Keepers?

The former can make for an interesting hypothetical discussion: Must the Constitution be a suicide pact?


Anonymous said...

I know this is an unpopular opinion on SSI....but I believe most will follow orders; especially if the penalty for not following them is a firing squad.

Look, history may not exactly repeat itself, but it rhymes. All those other soldiers from the past that waged genocide on the Native Americans, ran death camps all over the world under communist regimes were all fallible human beings.

Most of us are familiar with the Milgram Experiment (those who aren't....Google it)...which showed way back in 1963 that up to about 65% of people will obey authority figures up to an including killing someone on their orders.

That is telling about humanity in general.

To believe that we've somehow "evolved" beyond that in the last 50 years is laughable.

DTG said...

The argument itself is flawed due to the misuse of 'legal' and 'illegal' versus 'lawful' and 'unlawful. As a retired First Sergeant, who's had a lot of time with the UCMJ (aka, 'The Maroon Harpoon'), these are my thoughts on the argument itself as posted on the OK site at Codrea's piece:

Huge error here in terminology, which leads to a huge error in understanding the subject:

– Orders issued in the military are either ‘lawful’ or ‘unlawful.’
– All orders are ‘legal’ if issued from a superior by position or rank to a subordinate because of the formally recognized chain of command and rank structure within the military.

A particular order’s violation or support of the US Constitution, the UCMJ (which supports the constitution from a military standpoint by criminalizing (to one degree or another) violations of the Supreme Law of the Land), or the Oath is what makes the order ‘unlawful.’ As such, an unlawful order cannot be obeyed without consequence.

We were trained (and I understand this type of training has been all but abolished) this way due to Nuremberg, the trial results, and the subsequent ruling that we had a ‘duty to a higher power’ when carrying out orders.

As such, at least in my day, the military was trained that each member, by virtue of taking the Oath, had a sworn duty to only obey those orders that were ‘lawful’ and to refuse to obey ‘unlawful’ orders (it’s that ‘support, defend, and protect the Constitution thing…).

We also were trained that we had the responsibility to know the difference, and that should we make the wrong call, we’d most likely have to deal with the consequences.

Contemporary examples: My Lai & Kent State.

Fast forward to today and an example: A US military unit patrolling a US city/town/village/hamlet receives a legal order to shoot any civilian encountered after dark without exception (that mean women, children, infants carried in the arms of the mother, etc). The order is legal, but it an unlawful order based upon the violations of the 4th and 5th amendments, let alone the Posse Commitatus Act (yes, I know, it’s toothless now thanks to the Patriot Acts 1 & 2 and the NDAA, save for order of precedence and which actually supports the Constitution and the Oath). If the unit refuses to carry out the order and doesn’t shoot any civilians they see (in this example), they are, in fact, correct in doing so.

If our military folks today can’t see this, we’re well and truly FUBAR’d.


To answer the question, will our troops obey unlawful orders, unfortunately, I believe the answer is, "yes, they will." I would hope to be convinced otherwise, but the lack of education in military law by all the branches, and the subsequent mistaking blind obedience for 'obedience to the Oath' does not give me hope...

Fred said...

History shows that gov will have zero difficulty finding millions that will take, torture, and kill for it's glory. Will current police participate? They will if they want their job, but no worries, there are plenty of folks that enjoy harming people, they are easy to find.

skybill said...

Hi Mike, Matt and Dave,
Reading the "Takers...." and the "29 stumps" one thought was riding at the front of my mind... Phil Zimbardo's "Stanford Prison Experiment." ...........

Note that I usually close my posts with "Got Gunz....OUTLAW!!!!" I used to toss in a few (????) but I stopped doing that because.... "WE're all "OUTLAW'S" now....You Know!!" Picture if you will, "The Cheshire Cat" sitting up in the tree saying "That" to Alice.

When "THEY" come, and "THEY" will, to your and my door, the concept of maintaining the"Moral High Ground" and "NOT SHOOTING FIRST!!!" will be a mere footnote of History.

'Have "The Day off...".....considering these thoughts.....'think I'll head to the "Range" and engage in some "Recoil Therapy!!"

And, sometimes I think, perhaps instead of "Old Glory" or "The Stars and Bars"............. it's time to hoist "The Jolly Roger!!" 'Just something to think about.

Got Gunz........OUTLAW!!!,

PS "Tick-Tock....Tick-Tock...."

Chiu ChunLing said...

BAIER: Mr. Trump, just yesterday, almost 100 foreign policy experts signed on to an open letter refusing to support you, saying your embracing expansive use of torture is inexcusable. General Michael Hayden, former CIA director, NSA director, and other experts have said that when you asked the U.S. military to carry out some of your campaign promises, specifically targeting terrorists’ families, and also the use of interrogation methods more extreme than waterboarding, the military will refuse because they’ve been trained to turn down and refuse illegal orders.

So what would you do, as commander-in-chief, if the U.S. military refused to carry out those orders?

TRUMP: They won’t refuse. They’re not going to refuse me. Believe me.

BAIER: But they’re illegal.

TRUMP: Let me just tell you, you look at the Middle East. They’re chopping off heads. They’re chopping off the heads of Christians and anybody else that happens to be in the way. They’re drowning people in steel cages. And he — now we’re talking about waterboarding.

Okay, I'm not a Trump supporter, but I don't think he's a total fool. Read the above text carefully and consider this question.

Do you think that the situation Trump describes in the Middle East might have some bearing on whether or not waterboarding people guilty of such acts is legal?

Like I said, my problem with Trump is that I believe he adopts various sound policy prescriptions as part of a media game to politically discredit them by acting like a buffoon generally. I don't believe he'll really go around doing half of what he says he'll do, and the other half he'll do in the most half-assed way he can (and we've all seen just how half-assed he can be when he tries). But let's all put that aside and focus on Trump's answer to the charge of waterboarding being illegal.

Don't even opine on whether you agree or disagree. Do you think the situation Trump describes, terrorists chopping off heads of Christians and anybody else that happens to be in the way, drowning people in steel cages...does that situation have any bearing on whether it might be legal to waterboard those terrorists?

Now, my opinion is that terrorists who engage in such activities cannot enjoy the legal protections afforded by the Geneva Conventions, that in fact the Geneva Conventions specifically stipulate that people engaged in such atrocities shall not be accorded protection as lawful combatants. That is the primary enforcement mechanism of the Geneva Conventions, after all. But a lot of people disagree, though I can't begin to understand their legal argument if they even have one, it mostly seems like appeals to emotion to me. Still, positing for a moment that there is a basis for reasoned dispute about whether it is legal to use enhanced interrogation against people engaged in atrocities, is Trump's answer (which I take to be completely insincere) not relevant?

Let me change it up a bit. If there were some "III%" group running around chopping off Christians heads and burning people in cages and blowing their heads off with det cord, would you seriously object to them being designated domestic terrorists and dealt with in a manner that put expedient limitation of their ongoing activities a bit ahead of scrupulous observance of the due process rights accorded to, say, a guy selling loosies on the street corner?

Chiu ChunLing said...

I would sound a cautionary note and demand that there be significant oversight mechanisms, but I would not seriously object. I would be vigilant about the danger of government applying the same treatment to the guy selling loosies on the sidewalk, but until I saw that happening I'd only say "let's make sure we don't start doing this to everyone".

You can call that attitude unprincipled or treasonous or whatever you like, but for me it makes a difference exactly how bad a crime really is. The whole reason we have government in the first place is because some crimes are bad enough that it's worth having an way to commit organized violence on a potentially massive scale to prevent those crimes. In fact, it's the same reason I think that people should own guns, including those specifically for hunting (cause some animals are dangerous enough that a bow and arrow just won't cut it, and even the bow and arrow is because some animals can outrun me, or I'd just use a knife).

I'm not saying that a discussion of whether most military and police will really honor their oaths isn't worth having. But let's try not to introduce an unsound premise at the outset. Whether or not you believe, ultimately, that waterboarding terrorists is necessarily illegal, there is a serious argument to be made and we should have that argument before leaping to the conclusion that anyone who thinks sometimes it could be legal is an oathbreaker willing to gun down Americans for exercising their fundamental rights like free-speech and bearing arms and stuff. I'm not denying that such oathbreakers exist, nor that I feel particularly kindly towards them, I'm just saying we might want to take the time to distinguish them from guys who think it could be legal to waterboard someone involved in committing atrocities to help expedite putting an end to those atrocities.

Anonymous said...

The best indicator of what will happen is, what has happened. What does world history tell us will happen? How it will happen? There are many example of this, too many in fact, which is why our country came to be in the first place. The best exemplar is probably the Soviet Bloc.

The Soviet bloc was built upon LIES, told to their people and their troops. Those lies were enforced by FEAR, so that no one, even if they knew the truth of what was happening and how it was being done, DARED utter a word because the cost of doing so was far too high.

Thus, a very inefficient command economy was created wherein the upper crust of the communist party and their immediate subordinates, rode around in Zils etc. while everybody else got to walk and stand in line, in the snow, waiting for what little food stores and products didn't go into the special party stores, reserved for approved party members.

ALL OF IT, was done at the muzzle of guns and the men who were willing to do anything they were asked, including murder and torture on a grand scale. Remember, they lied o their troops in order to induce them to act.

I see the very same things within our country and our military and police today, although not as robust as the Soviet version and in it's toddler stages. We no longer have a Constitution and Bill of Rights guaranteeing freedom and liberty to our people. What we have are Marxist and opportunists dismantling and destroying those principles and laws, for their oun purposes and they are not doing it to benefit the "people" but themselves, just like in the good old Soviet Bloc.

Done by men willing to do anything for a sandwich and a warm coat. Doubt you that those men exist today?

Unknown said...

Great article. Great comments.

David Codrea said...


Chiu ChunLing said...

It occurs to me that in the haste of composition I made some errors affecting my meaning.

I referred to putting life-saving expedience, "a bit ahead of scrupulous observance of the due process rights accorded to, say, a guy selling loosies on the street corner?" I meant to say, "a bit ahead of scrupulous observance of the same due process rights for the terrorists as would be accorded to, say, a guy selling loosies on the street corner? The omission of the italicized differences allows a reading of the sentence entirely contrary to my intention.

This is exacerbated somewhat by saying, "nor that I feel particularly kindly towards them," in reference to serious oathbreakers. It should read "nor implying that I feel particularly kindly towards them," so as to avoid the attribution of "denying" used in the previous clause.

Hopefully this clarifies any confusion about whether I was in any way suggesting that the fact that some people were committing atrocities should or legally could be used to deny any persons not involved in those atrocities their legally recognized rights.

I fully agree with the third Geneva Convention, "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." While the exact definition of a competent tribunal is not clarified, I would presume it disqualifies any tribunal which commonly or persistently made incorrect determinations allowing persons factually eligible for protection under the Conventions to be denied such protections (the reverse error, sometimes allowing people factually ineligible for protection to claim it, may be unavoidable as such persons will no doubt often seek to cause an incorrect judgment and may well succeed despite the best efforts of any human agency).

Chiu ChunLing said...

On another note, I've consistently used "legal" rather than "lawful" in this discussion. While there are certain distinctions between the terms, for my purpose I am referring to actions being in accordance with legislation or equivalent authoritative documents, rather than attempts to draw abstract principles prior to legislation. Not all orders are legal, even if issued from a superior by position or rank to a subordinate, because there are in fact legislative restrictions on the legal authority of superiors over subordinates. But certain orders may be legal in the narrow sense of being in accordance with the legislative definition of the authority by which they are issued, but still be unlawful by principles superior to that legislation. Similarly, an order may fall outside of the legislatively prescribed authority by which it was issued, but still be in accordance with the principles of law.

For example, a situation might arise where an officer would order his men to distribute weapons to persons who otherwise would be left defenseless against likely enemy attack. This order may well be outside the legislatively prescribed authority of that officer, but nonetheless be a lawful means of protecting innocent lives. In other words, it should be legal according to the underlying purpose of the law, the reason legislation exists, but the legislation is inadequate or flawed. Examples of the opposite situation also exist, where an order should be illegal but isn't.

Situations of flawed legislation are a commonplace, however I adopt the legal theory by which legislation which is not authorized by the legal authorization to legislate (much like orders which defy the legislation granting authority to issue orders) is illegal. So while a legislative directive that military units not distribute weapons to foreign nationals without prior authorization might be legal, a legislative directive allowing the commission of war crimes would be invalid, by the stipulation of the Constitution concerning treaties which are Constitutionally valid. That is to say, for an order to be legal, the entire transmission of legal authority to issue that order must be unbroken through all intervening layers of legislative authority back to the foundational legal document (regardless of whether that foundation is itself lawful). An order cannot be legal if the authorization to issue it is illegal, I cannot legally write myself a commission as an officer in the U.S. Marines or assign myself command rank, and to hold that my illegal legislation to that effect meant it was legal for me to issue orders binding upon Marines under the USMJ would be ludicrous. From a legal perspective, it is no less ludicrous to suppose that any legislation which contravened the limitations of the legal authority by which the legislators were authorized to legislate might be a valid basis for making legal orders that would otherwise not have legal force.

This is not to say I have never instructed Marines on how they should act in some situation. Just that I would never presume to order them about as if they were legally obliged to obey me.

MikeH. said...

Matt, I am interested as to your thoughts as they pertain to the military.

Perhaps a bit on the naïve side; I would at least like to think the majority of military personnel and LEOs would offer up the one finger salute and walk away if given those orders. I believe, over the last seven years, there have been enough examples of both being severely screwed over by the CINC and the DOJ to make it perfectly clear that damn few are among the chosen few. And none of the chosen are serving military or LEOs.

Of course, my "go to", when discussing matters such as these, is and always will be... look up "The Tiny Dot" on YouTube.


Anonymous said...

U.S. Soldier exposing MARTIAL LAW at Texas Government Meeting (May, 2016) Jade Helm

FedUp said...

Never been an Oath-Maker, but I remember 2005.

Let's say a JAG lawyer had briefed me on how it was OK to 'provide backup' (in other words, threaten to machine-gun crime victims if they resisted armed robbery) to NOPD while they committed door to door armed robberies, but it wasn't OK for me to physically take the guns myself.

I might have pointed out the fact that when one guy points a gun at people while his accomplice has them put their watches and wallets in a pillowcase, both guys are guilty of armed robbery. I also might have tried to find out who gave the JAG those criminal orders he was passing on to me before I shot him in the face and went off in search of the one who gave him the orders.

I might point out that while I do not know how many National Guard soldiers were given those orders (probably less than 100, maybe less than 25), I do know the number of them who did anything about it (zero).

Anonymous said...

I took the Oath (the first time) in 1974. I have not seen any indication that the Oath expired nor seen any need to join an 'organized' group to still be governed by the principles of that Oath.
Has anyone looked into the financials of OK? It would NOT surprise me to find that there is a lot of 'overhead' involved vice sticking to principles. WWP comes to mind.
Oh yeah, almost forgot, lots of parsing of terminology regarding 'illegal' and 'unlawful' - bottom line, wrong is wrong regardless of how it is dressed up.

OTB MCPO sends.............

Chiu ChunLing said...

I think that there are issues of both moral clarity and personal courage which come into play.

We can't do much about the cowardice of those who obey criminal orders out of fear, other than try to make it clearly more dangerous for them to comply than to resist. That won't happen instantly or in a particularly coordinated fashion, even if we tried to do so.

The issue of moral clarity is something we can usefully impact, and that starts by eliminating inappropriate moral equivalences from our thinking. We need to draw a line separating waterboarding people who commit atrocities from directly violating the Constitutional rights of Americans who haven't committed any crimes.

JAG06 said...

As noted above, failure to obey a lawful order is a violation of Article 92 of the UCMJ. All orders from a superior are presumed lawful. If the order is unlawful, that is an affirmative defense at court-martial to a charge of failure to obey under Article 92. BUT as an affirmative defense, the burden is on the accused to overcome the presumption and prove that the order was in fact unlawful. So, any service member disobeys an order at his own peril, even an order he believes might be be unlawful. Most service members - even those properly trained on the law of armed conflict - will be more concerned about relatively certain prospect of a court-martial for failure to obey the order than of some future war crimes trial, and they will obey the order. Following the order is the default. (Moreover, the winners are usually not tried for war crimes.)

Anonymous said...

People are sheep. Military members are no different. The military does not defend any our our rights, they can only try to take them away.

tjbbpgobIII said...

I was told once by a 1st sgt. that illegal orders still have to be obeyed. Whoever receives those orders may still be able to act stupid enough to foul up those orders, or at least that is what I think he was trying to say.