Angry in the Great White North

Cindy Sheehan writes at MichaelMoore.com (August 25):

Casey took an oath to protect the US from all enemies "foreign and domestic." He was sent to occupy and die in a foreign country that was no threat to the USA.

The implication was clear. Casey's oath was somehow subverted by the "filth-spewer" George W Bush. A typical ploy that clears Casey of any personal responsibility.

What of his responsibilities? Despite what Cindy Sheehan thinks, Casey Sheehan did not take an oath to defend the United States. He took an oath to defend the Constitution, that is, the system that defines the United States, not just the territory. In fact, here is the oath he took:

"I,____________, 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; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God"

Obey the orders of the President and of the officers over him -- Cindy Sheehan skipped that bit of Casey's oath too. That is part of the oath too, since having the military obey the orders of the civilian government is a critical element of the system. Merely following lawful orders, in of itself, constitutes the defense of the system.

Cindy alludes to the argument that soldiers must disobey the illegal orders of their officers:

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

Let's look at the sections of the UCMJ in question:

§ 890. Art. 90. Assaulting or willfully disobeying superior commissioned officer
Release date: 2004-03-18

Any person subject to this chapter who—
(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his office; or
(2) willfully disobeys a lawful command of his superior commissioned officer;
shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

§ 891. Art. 91. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer
Release date: 2004-03-18

Any warrant officer or enlisted member who—
(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
shall be punished as a court-martial may direct.

§ 892. Art. 92. Failure to obey order or regulation
Release date: 2004-03-18

Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.

The text of regulations concerns itself with punishing insubordinate soldiers, with the trapdoor for a soldier who is able to prove that the order he disobeyed was unlawful. It does not compel the soldier to make evaluations of the policies of the President and Congress with the limited information he would have at hand. Chaos would ensue in that case (and the chaos of a rebellious military runs counter to the oath to defend the Constitution).

What constitutes a lawful command? Here is as good a definition as I could find:

A command, in order to be lawful must be one relating to military duty, i.e., the disobedience of which must tend to impede, delay or prevent a military proceeding. A superior officer has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of a military duty or regulation or for a purpose connected with the welfare of troops or for any generally accepted details of military life. He has no right to take advantage of his military rank to give a command which does not relate to military duty or usage which has for its sole object the attainment of some private end.

Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

The President and Congress are within their legal authority as defined by the Constitution to prosecute a war against an enemy. It might be that Saddam Hussein was not the enemy, or was the wrong enemy, or that the evidence that suggested he was the enemy was flawed, but that doesn't affect the lawfulness of the actions of those authorities. Casey might have had doubts, but doubts are not enough to justify disobeying an order that was not manifestly unlawful. The civilian authorities made their determination, the orders were passed to the Secretary of Defense, which were then transmitted to the commander of the combatant command, and on down the chain (see 162).

There is no basis for Casey Sheehan or any other soldier to disobey these commands. Soldiers who have attempted this defense in court have failed to avoid a guilty verdict and punishment under the UCMJ. For instance, take the case of Camilo Mejia, who even claims to have witnessed specific acts considered unlawful under the UCMJ:

A military court in the US state of Georgia has found a soldier guilty of desertion for leaving his unit in Iraq.

The soldier, Camilo Mejia, served in Iraq for five months until October last year when he went on leave, and then failed to report back to his unit.

Mejia, a staff sergeant, said he was a conscientious objector and opposed what he called "an oil-driven war".

He also said he saw civilians killed and prisoners mistreated in Iraq before the Abu Ghraib abuses became public.

The judge ruled that the orders that Mejia had not received an unlawful order:

Lawyers at Mejia's trial had sought to make comparisons with the trial of Sivits and others accused of abuses in Iraq.

Prosecutors said there was no escape from the fact that he had failed in his duty by not turning up and abandoning his troops.

But Judge Gary Smith ruled on Thursday that evidence about prisoner abuse was irrelevant to the desertion charge.

The principle is clear -- the "unlawful order" defense is carefully circumscribed in scope to specific orders given to the solder. The anti-war crowd would like to have people think that every soldier is obligated to evaluate the evidence described in the media (quite possibly exempting Fox News Channel), filtered through unelected and unaccountable groups like Cindy Sheehan's Gold Star Families for Peace, and without access to whatever classified information available to the adminstration and to Congress, and then declare themselves exempt from following orders on the basis that they were in some way "unlawful".

The UCMJ does not work this way, in no small part, I believe, because of the faith of people who drafted the UCMJ had in the Constitution that they were sworn to defend. The checks and balances in that document, and the protections afforded by the various amendments, are designed to prevent the rise of a tyrant. Indeed, the oath to defend the Constitution, and not the president, is part of that protection. To suggest that Casey Sheehan and his fellow soldiers are required to evaluated the entire chain of command, the debate and decisions of the legislative branch, and the character and motivations of the man elected by the people to sit in the Oval Office, undermines the system they are sworn to defend.

Of course, Cindy Sheehan thinks the whole system is morally repugnant, so I figure for her that's the whole point.

[Wizbang notes that Cindy Sheehan has said that the President doesn't really believe that the war in Iraq is a war on terrorism. Of course not -- for her this war has no justification, even mistaken. It is illegal, and was conceived illegally, hence the notion that Casey's oath was subverted.]