Conflict between US Military & their oath vs. new terror laws

[Indyellen]

I’ve been following with great interest the discussion (mostly in the Pit) regarding the new terror law which passed last week. (Full text of the bill in .pdf form here.) However, elsewhere I have seen the following discussion related to our military personnel & how this law may affect the oaths they swear upon entering the military:

(QWP from Making Light )
Attention US Military Personnel

You are not required to obey an unlawful order.

You are required to disobey an unlawful order.

You swore an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.

The Constitution states (Article VI):

• This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. *

Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:

*Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

2. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.*

Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.

You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. “I was only following orders” is not a defense.

What all this is leading to:

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No “clarification,” whether passed by Congress or signed by the president, relieves you of that duty.

If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:

1. Request that your superior put the order in writing.

2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.

3. Request trial by courtmartial.

You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.

We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.

This post may be quoted in full. A linkback would be appreciated.

Is this a valid position? Does the new law directly contradict the oaths sworn by military personnel? Based on my reading, it does, but I would be interested to hear other opinions.

Note: I purposely put this in GD rather than the Pit, although if it ends up getting moved to the Pit I suppose that’s all right, but I’d rather see a debate. Thanks.

[Monty]

You (and the owners of that website) appear to be confusing order with law. So long as the orders issued do not conflict with law, they are lawful orders. While it is the responsibility of the Soldier to refuse to obey an unlawful order, it is not whithin his purview to declare a law unconstitutional. He may assert a particular law is unconstitutional and then go through the judicial process seeking the agreement of a judge or, better yet, the Supreme Court.

The other thing I think you (and the owners of that website) are missing is that the current administration didn’t rewrite the GC. They proposed legislation to mandate a particular interpretation of said treaty.

[Indyellen]

@Monty

You (and the owners of that website) appear to be confusing order with law. So long as the orders issued do not conflict with law, they are lawful orders. While it is the responsibility of the Soldier to refuse to obey an unlawful order, it is not whithin his purview to declare a law unconstitutional. He may assert a particular law is unconstitutional and then go through the judicial process seeking the agreement of a judge or, better yet, the Supreme Court.

The other thing I think you (and the owners of that website) are missing is that the current administration didn’t rewrite the GC. They proposed legislation to mandate a particular interpretation of said treaty.

Thanks for a clear answer, Monty - that’s exactly the kind of thing I was looking for. If I’m following correctly, since this bill passed, and will become law (when signed), then any orders to follow it are not “unlawful” orders. However if a Soldier has an objection to following such law, then it is up to them to take it up the chain of command to the Supreme Court (if need be).

However, I feel that the point of the statement/article is not that it is up to the Soldiers to determine the constitutionality themselves, but that if they do feel it is unconstitutional, to fight it under that basis.

I am purposely leaving my opinion of the passage of this bill and the interpretation of the GC out of the discussion. (That topic would probably be better suited to the Pit.) Thank you for discussing the technical aspects of the question.