Yes, it would be. You’re talking about constitutional First Amendment rights but that same constitution makes the President the “Commander-in-Chief” of the U.S Armed Forces? What you propose is inherently unconstitutional. I think it goes like this. If you’re a police officer then you are the apart of the military arm of either the county or the State. As an officer, you take orders that come either from the Mayor (through his Police Chief) or the Governor (through the Attorney General). In this case, it is the officer’s job to obey the orders of his superiors. If you have some police officers that don’t listen to orders and some that do, you have a collapse of an emergency response. When we’re talking about the Army, it’s constitutionally simple: The President is in charge and you do whatever he says. Though it is chilling to think about, I hope even if the President ordered a bomb to be dropped on American soil that the Armed Forces would do it without hesitation. It’s not the job of troops of ponder the morality of their commander’s decision, their job is to execute orders.
Then I ask you the same question; where are the limits? We sent men to Spandau after World War II who “only followed orders,” when those orders were clearly illegal. Dropping a bomb on American soil isn’t necessarily unconstitutional, but cracking people on the head for legally demonstrating is probably unconstitutional. How about, as I said before, arresting the President, the Congress, and the Supreme Court justices? If our soldiers should just do that without pondering the morality (or more importantly, the constitutionality) of that order, I don’t see how our republic can avoid becoming another 1970s Argentina or Chile.
Are you serious? Like you really thought this was meaningful in some way?
‘Person who belongs to group I am trying to demonize did something naughty!’
Did you just make a weak attempt to classify what this man did as naughty?
You’ve got to be kidding me. Because that was really the point of my statement.
Yes, indeed, child rape is naughty.
It shows that the one of the leaders of these morons is not only a child rapist, but a terrorist, What kind of people look to child raping terrorists for leadership?
So because one guy is a child molestor this reflects on all of the other people?
Good to know, I guess then people are justified in their hatred of homosexuals then right?
It’s interesting how signing an oath not to follow unconstitutional orders disturbs you so much. I guess you really LOVE Big Brother. It probably would’ve been nice if there were something analogous to these people in Nazi Germany no? People who won’t simply, ‘follow orders’. Don’t we always use the Nazis as an example of why sometimes morality trumps following orders? Isn’t that what the Nuremburg trials were all about? Isn’t that why geriatric low-level security guards have to wheel in their oxygen tanks to the courtroom? Isn’t that the basic premise? When the government says its time to round up citizens and put them into concentration camps that some people will refuse to follow that order?
As far as I know, no Wehrmacht grunt was ever sent to Spandau. Top military leaders ? Sure. It’s their job to think about what orders they give down the chain. They have a duty and responsibility to consider the impact of those orders. A grunt’s a grunt. Theirs is not to question why, theirs is just to do or die.
And yet we continue to prosecute guards at prison camps.
You bring up an important point; we don’t expect grunts to decide whether the higher-ups’ actions are legal or illegal. So long as the grunt’s actions pass muster under the laws of war, he’s fine no matter what shenanigans his superiors are up to.
But if the grunt is ordered to do something patently illegal himself, we throw the book at him if he obeys it. We prosecuted the SS extermination camp guards down to the lowest level. And more recently, in a much less severe case, we threw Lynndie England and the rest of the Abu Ghraib criminals in jail, and they were about as bottom rung as you can get, and the fact that they were following Karpinski’s orders (which probably came from people even higher than she) counted for nothing.
That’s an excellent point, which leaves as an exercise to the reader whether or not Lynndie England et al.'s case, and that of their superiors all the way up to the VP who was the ultimate source of the illegal orders, were treated fairly and justly.
However, whatever the answer to that may be, and going back to the oathkeepers themselves, how many of those 'orrible 'orrible orders they shake their fists at would be illegal ones ? Would individual soldiers been thrown the book at, were they to obey them ?
Disarming civilians : extremely allowed.
Warrantless searches ? Are you fucking kidding ?
Point 3, all right, that’s contentious, but allowed in general as long as the detention isn’t particularly cruel and unusual.
Imposing martial law ? Legal.
Invading sovereign states ? That’s what war is, I’m sure the laws of war allow for it.
Blockade cities ? allowed.
Detention of civilians ? Allowed until the war’s over, assuming the incarceration conditions are up to specs.
Foreign troops are called “allies”,
Confiscating food for the purpose of starvation is probably a war crime, and finally
Infringing the rights of free speach is the very LAST concern of any army.
So. One, maybe two out of ten. The rest are absolutely legal orders, in the sense the military code defines legal/illegal orders WRT a soldier’s duty to disregard illegal orders. Whether or not they are against the US Constitution is, for the most part, irrelevant, as I’m quite positive soldiers doing their job is generally against the local laws and customs of the country they’re doing their jobs in.
If I’m understanding your premise here, you’re saying that the only laws applicable to grunts are the “laws of war.” Also, you appear to specifically exclude the Constitution from the laws of war. Ergo, an order which violates the Constitution, but which does not violate the laws of war, is legal. So if the grunts’ superiors order it, the grunts can and must treat the United States exactly the same as a foreign country at war with them, and its Constitution and other laws need be given no more attention than the laws of any other foreign country to which the U.S. armed forces may be hostile. Have I got that right?
If so, then my first question is, where in the UCMJ, Geneva Conventions or other laws of war are you finding this?
My second is, if the Constitution does not bind the grunts any more than the laws of any other enemy country (despite their oath to support and defend it), then by what authority do the grunts’ superiors give them orders? It is only because the Constitution makes the President commander in chief that the President and his commissioned officers have the authority to give any orders to the grunts at all. So the Constitution must have some force over grunts operating in the USA, at least to the extent of giving the President the power to command them.
So, the question then becomes which part of the Constitution prevails on the grunts operating in the USA when they come into conflict? Is the President’s commander in chief authority absolute, so that the grunts must obey an order that violates another section of the Constitution (kill all Democrats, imprison all Jews, destroy the Congress and the Supreme Court, or the like)? Or is the president’s authority as commander-in-chief limited to lawful orders, i.e. those that don’t violate another section of the Constitution?
I’m not lawyer enough to be sure, but a glance at Article 92 of the UCMJ seems to suggest the latter: a soldier is legally required to obey only the lawful orders given to him by his superiors. If the Constitution is part of the “law” contemplated by Article 92, which it must be for the superiors to have the authority to issue any orders in the first place, then it would seem that orders that violate some section of the Constitution would not be “lawful orders.” That would also seem to be a much safer interpretation for the survival of a constitutional democracy. At least in Latin American countries, or in Pakistan, constitutional government has more often been ended by soldiers obeying orders to destroy democratic institutions than by soldiers refusing to violate their country’s constitution.
And incidentally, if I’m wrong and the commander-in-chief’s authority to violate other sections of the Constitution is absolute, then why would the grunts have to obey even the laws of war? The Geneva Conventions only apply to American grunts in the first place because they were adopted by the USA under the treaty provisions of the Constitution. If the Constitution is irrelevant, why are Conventions adopted under the Constitution’s authority relevant?
Yup.
It’s a tricky question. Article 92 of the UCMJ defines an unlawful order as an order that would put the soldier following it in position to commit a crime. The court of milirary appeals further clarified :
However, it does not specify under which laws it is “known to be” illegal. The UCMJ ? The laws of the land ? The US civil laws ? The laws of the country in which the order is given ? All of the above ? I think we can assume it’s US law, but in this case, is ordering a soldier to shoot in a general direction an illegal order ? How about driving over the speed limit ?
Further reading on the subject, courtesy of the IDF. Apparently, a distinction is made between an illegal order (i.e. an order to break the law, any law, including the speed limits) and a patently illegal order (war crimes, killing civilians, blowing up churches, etc…).
However, we can avoid this difficult distinction for the purpose of your question :
In basic training, a crusty drill sergeant orders you to empty your fucking locker, NOW !
This is an illegal, warrantless search, and as such a violation of a Constitutional amendment the number of which I can’t recall right now. Can you tell him to blow it up his hairy arse (thus excercizing your First Amendment right) ? Of course not. Thus we have here an example of an order that violates the Constitution, but not the UCMJ code.
See above. I’m no UCMJ lawyer, but clearly some part of the Constitution are waived in the case of soldiers.
And here, we’re back in the “unlawful” vs. “patently/manifestly unlawful” territory. It is illegal to drive over the speed limit, or to shoot/destroy private property - but grunts in Iraq did it every day. If the US Army were to operate within the strict bounds of civilian legality, war would be absolutely impossible, almost by definition. Are circumstances different on US soil ? I wouldn’t begin to claim to know.
However, I believe at least one of the “oaths not to” (martial law) is a well defined case, one that is allowed in particular circumstances. The Constitution itself states : “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”. The later Posse Commitatus Act further restricts military involvment in domestic matters without Congress approval - but IF the Congress approves, then it’s fair game.
Similarly, the PCA makes exception in the case of :
- National Guard units under the direct orders of the State’s governor (see: Kent State shootings)
- Presidential order under the Insurrection Act
- Request from the Attorney General in certain extreme cases
As I understand it, if the Oathkeepers’ wetdream of secession or armed revolt were to see the light of day, the President would be well in his rights to send the troops against them under the Insurrection Act.
Interestingly, GWB extended the scope of the Insurrection Act to include a variety of other things besides, well, insurrection (I didn’t know that). So in a Scy-Fy scenario of a drunk with power Obama deploying the troops and declaring martial law under some dubious pretense, the Oathkeepers would only have their own party to blame…
It is not absolute - far from it. But it is clearly not utterly out of the question either. Therefore, were the Oathkeepers to rebel against any and all orders on their list, when those orders are legal, they *would *be traitors.
As for the Geneva conventions, you’re wrong. International treaties supercede national laws - they have to. Otherwise, one would simply have to make war crimes locally legal to trump Geneva. The US could burn its Constitution and start over from scratch, and it would *still *be bound by the Geneva Convention (which, BTW, even applies to non-signatory parties these days).
And yet… they don’t. Funny how that works, really. You see, once a treaty is signed, it must be enacted into law by Congress, or there is no enforcable power behind it.
While the, ahem, hello, BRICKER Amendment was never passed, most of the contents that would be within it were later ruled accurate by the Supreme Court.
The US Justice system can say whatever the hell it wants to, that doesn’t make it valid in an international court of law. How you choose to go on about enforcing a treaty withing your borders is irrelevant. Quoth the '69 Vienna Convention on the law of Treaties :
Of course, this is mostly a moot point, because in international matters the US policy can be summed up as “might makes right, and we happen to have the might, thankyouverymuch”.
Still.
Any treaty may be withdrawn from at any time. I’d say changing laws so that the treaty is made illegal constitutes a de facto withdrawal.
All right, conceded, but then the other parties are also unbound by the treaty and, depending on the terms of the treaty itself, withdrawal might also entail penalties and reparations to be made. The point is that you can’t sign a treaty, then not abide by it citing conflict with internal laws, while still maintaining the treaty’s validity for the rest of the signatories.
In any case and as a general rule breaking treaties, especially without warning, is politely referred to be “sort of an ill-advised move” in diplomatic circles :).
Besides, as I mentioned before, in the specific case of Geneva every single state is bound. Even if you never signed it, don’t wanna, are directly and specifically ordered to shit on it, got a handwritten note from your [del]mother[/del]Generalissimo, the other guy started it and your nation’s legal cornerstone makes inhumane treatment of civilians mandatory.
As a practical matter, yes - but as a matter of international law treaties are binding.
Then how do you repeal a treaty?
You get all the signatories to agree to repeal it.