Posted on 12/05/2008 8:49:36 PM PST by OL Hickory
I received in an e-mail a question. (I answered it,) (see Below)
It basically asks: If a Reservist,National guard member becomes mobilized AFTER Jan 20th and gets put on one of the following orders, can he/she decline due to an illegal order being issued by a non qualified president?
Title 10 U.S.C. 12302 provides that, in time of national emergency declared by the PRESIDENT, up to 1 million members of the Ready Reserve can be called to active duty for not more than 24 consecutive months. Similar to the previous authority, DOD stated that this statute could also provide access to reservists for a domestic emergency, although it has never been used for this purpose.
Title 10 U.S.C. 12304 provides that, when the PRESIDENT determines that it is necessary to augment the active forces for any operational mission, up to 200,000 members of the Selected Reserve can be called to active duty for not more than 270 days. (Note: The FY 2007 Military Authorization Act changes the maximum from 270 days to 365 days). This is known as Presidential Selected Reserve Call-Up (PSRC) authority. This provision also states that no unit or member may be ordered to active duty under this authority to provide assistance to either the federal government or a state in time of a serious natural or manmade disaster, accident, or catastrophe. Thus, this authority cannot be used to access reservists for domestic emergencies.
I replied back I think (besides a court marshal,loss of rank and a possible dishonorable discharge) this was grasping for straws and If called man up and go. You took an oath to defend against all enimies foreign and domestic...Not just for free college..Was I right?
Hope no servicemember is betting their career (or freedom) on this one paying out.
Once a President-Elect takes the oath of office on the 20th, he’s the President. The only thing that can remove him (or her)is an impeachment preceding the house and a conviction in the Senate, no if, no buts and no ands.
Your friend, if bold enough to not show up could be court-martialed under at least four violations of the UCMJ that come to mind immediately, probably many more - things like disobeying a direct order, missing a movement, unauthorized absence, dereliction of duty, the list goes on and on.
Interesting question. I’m on the Inactive Ready Reserve list, so I’m in the same situation.
I’m supposed to obey lawful orders; and, as an officer, I’m sworn to defend the constitution.
I’m positive that, if I refused to report for duty, I would get a dozen charges slapped on me, unrelated to Obama’s legitimacy. So, I would report....
But, I wouldn’t like it; and, I would be demoralized.
Mr. President Elect, tear down this wall of silence. Do it for the morale of this country’s armed forces.
Can you imagine...young kids who joined just for college
using this??? Unfortunately I can....In basic training (LONG TIME AGO) We had a female soldier who refused weapons training due to she couldn’t kill anyone, and her recruiter
told her she wouldn’t have too.
I’m not related to this case. I was just one of the first to comment much along the lines you did.
Yeah. Any one who wants to spend time in the brig can do so. But Obummer is the president on 1/20/09 unless something WAY beyond the discretion of the average soldier happens.
Your answer would be correct. And the UCMJ doesn’t have an appeal process to the USSC.
Not military, but... I have a bit of common sense.
Anyone trying to dodge service - especially using this as a justification - would be in a world of hurt.
An Army MP (Airborne, too, I think) used to live a couple doors down from me. I’d rather not imagine what he looks like while doing his job. ;)
Not to split hairs, but the decisions by the Military Courts of Appeal are subject to review by SCOTUS. A writ of certiorari would be filed by defense counsel just like a civilian case.
Hmm, then why did they make us swear an oath to support and defend the Constitution? I guess they still do that.
At some point, "I was just following orders", does not cut it, Google Nuremberg Trials
Easy decision? Heck no, but whoever said it would be easy? But that is what you swear to do. Against All Enemies, which could someday, include a usurper.
Yes it does, via the Court of Military Appeals, which is like a Federal Circuit Court for the Military.
Sort of like the signers of the Declaration of Independence. Ben Franklin, who was one of them (he also signed the Constitution) is supposed to have said
We must, indeed, all hang together, or most assuredly we shall all hang separately."
-In the Continental Congress just before signing the Declaration of Independence, 1776.
Yep, and domestic.
Ever wonder why that was put in there? Curiously, it is not in the President's oath, which is specified in the Constitution, but is in the oath taken by both military and civil officers, of both the US and the states, including legislators and judicial officers, (lawyers and judges, I watched both my daughter and son in law take a very similar oath, as newly licensed lawyers/officers of the court). In fact the requirement for such an oath comes from the Constitution itself:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;
While the enlisted oath speaks of 'obeying orders', the officers oath does not. See The Oath of Office from the Air War College. The officer's oath has not changed since 1868, and the "foreign and domestic" part was put in in 1862. The language was not added to the enlisted oath until 1962, although before then the oath was to "The United States" and against "against all their enemies whomsoever;" or similar language in earlier versions.
This is going to be fun.
A President has already declared a state of emergency......Bush already has......
Good poinbt, but in my own personal belief system I serve a higher God than the zero and frankly this country and it’s people are larger than any one man.
The zero can not be a dictator in our present form of govt.
He’s only one man and frankly he’s not that smart a guy!
But when that one man has the media, the legilstive branch of government, and about half of the population (not to mention whoever, if anyone, is pulling strings behnd the curtain) on his side, he becomes very powerful. I think he can effect great change, and not in a good way. I don’t expect this group to act within the confines of our government as it exists today - they’ve already shown they’re not prepared to do that.
Plenty of people felt that Iraq was a bad idea, and that the President didn't have the authority to conduct said war, since War had not been declared formally by Congress. I was involved in arguements along this line. In Iraq. I understand that some people will always look for a legal escape to a political disagreement.
So, your reservist friend can grumble and complain all he likes, but unless he intends on becoming a fugitive, the law will compel him to serve at the discretion of his Commander in Chief.
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