Before it is too late, should I refuse orders to continue the unconstitutional attack on Libya?

Foreign Policy ^ | 13 June 2011 | Thomas E. Ricks

[Palter]

I certainly don't endorse all the comments posted on this blog, nor even all the guest columns. Case in point: I disagree with the argument below, because I don't think we want our corporals and lieutenants to try to be constitutional lawyers weighing each order they receive. (Or even our generals, like Douglas MacArthur, who got fired in part for following by his own reading of the Constitution.) I think people need to be taught that the issue of "legal orders" applies to war crimes and the like, not to whether one believes the executive branch has abided by the War Powers Act.

Yet I believe the column below is worth reading. If we try to crush such discussions, they will take place only furtively, and so become ill-informed.

By "A Midshipman" Best Defense guest correspondent

I'm a Midshipman at the Naval Academy and have been talking with officers from the submarine that launched most of the American cruise missiles into Libya. We've had some interesting discussions about the legality of the operations at this point and whether the personnel still engaging the enemy there are breaking their oath to obey only legal orders.

President Obama's decision to avoid seeking Congress's permission to continue America's role in the Libyan conflict marks one more step in the long march toward a balance of power within the federal government that is more Napoleonic than democratic. Since the Vietnam War, President's have not felt obliged to seek a Congressional declaration of war before committing American lives to conflicts abroad. Every sitting President since Nixon has ordered the military to battle without going through the channels prescribed in the Constitution.

[Palter]

Title shorted to fit into header. Correct title is: A midshipman asks: Before it is too late, should I refuse orders to continue the unconstitutional attack on Libya?

[mbynack]

It’s been tried before and he won’t win the fight. The military provides “Law of Armed Conflict” training that explains the circumstances when you can refuse to follow an “illegal order”. It’s a fairly narrow scope, such as if you’re ordered to shoot non-combatants.

There were a lot of draftees that tried to get out of Vietnam claiming that it was an “illegal war. The same for Korea. Neither one was declared by Congress. I am unaware of any of these people who succeeded.

[Sherman Logan]

Since the Vietnam War, President's have not felt obliged to seek a Congressional declaration of war before committing American lives to conflicts abroad. Every sitting President since Nixon has ordered the military to battle without going through the channels prescribed in the Constitution.

Whether our military actions in Libya are constitutional or legal or a good idea can certainly be debated, but this midshipman shows a very poor grasp of history and of the Constitution.

For one obvious thing, this didn't start with Vietnam, as there was no declaration of war by Congress in the Korean conflict.

For another, the US has been involved in more than 125 military conflicts in its history. I believe over this entire period it has formally declared war only five times.

http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States#Declarations_of_war

In many other cases, such as for the Gulf War, Iraq, Afghanistan and others since the Quasi-War with France, Congress has given its express or implied authorization for the use of force.

But the Constitution in no way says that military force cannot be used without a formal declaration of war by Congress.

The War Powers Act, the one Obama is presently ignoring, was actually an attempt by Congress to insert itself into the President's constitutional role as Commander in Chief, and is itself arguably unconstitutional.

Congress has indisputable power to stop any presidential military adventure in its tracks simply by withdrawing funds for it.

[heiss]

Yes. If POTUS decides to invade Canada and annex Vancouver (just for fun), there is nothing soldiers can do, except follow orders.

Only very specific narrowly defined acts, like direct order to execute civilians can be rejected.

[blueunicorn6]

If a cruise missile hits a bus load of kids, and the press starts making a big deal, then somebody will have to pay. It won’t be the politicians or the admirals/generals. One of my commanders told me, “A commission is just a license to go to jail.” Unfortunately, that can be true.

[Palter]

attempt by Congress to insert itself into the President's constitutional role as Commander in Chief, and is itself arguably unconstitutional.

Congress has the numerated authorty of setting the rules and regulations of the Military. It is more than the usual crap of funds. Only a State or Congress can set the parameters for entering War. Not a President. The Executive has overreached in its powers of the Military.

If Congress sets the limitations on the Military, that is perfectly correct.

[Sherman Logan]

Pretty obviously presidential and congressional powers overlap in this area, as they should.

My point was not that the War Powers Resolution IS unconstitutional, only that it is possible to make a decent argument that such is the case, that by it Congress moves beyond its legitimate constitutional powers and encroaches on those of the president.

BTW, where do you get the notion that a State can decide when to go to war?

[Palter]

A 1 Section 10:

...or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

[MrEdd]

Which would apply to Texas.
If we had a conservative governor instead of a RINO.

[Old Teufel Hunden]

"President's have not felt obliged to seek a Congressional declaration of war before committing American lives to conflicts abroad. Every sitting President since Nixon has ordered the military to battle without going through the channels prescribed in the Constitution."

Article 1 section 8 of the Constitution says that the Congress has the power to "declare war". Notice the word "declare". That's a verb. Not a noun or an adjective. Declaration as used in Declaration of War is an adjective describing the noun "War". In this case, it is describing a partcular act of Congress. This formal process "Declaration of War".

No where in the Constitution does it say "Declaration of War". It says that the Congress has the power to "Declare War". The Constitution doesn't tell Congress how to do it. Whether they do it by a Declaration of War such as WWII, or by a Congressional Act such as the Quasi War or the Barbary Pirates war (all started by the Founding Fathers who wrote the Constitution) is Constitutional.

The Libyan conflict was not started by a Congressional Act and still does not have a Congressional Act for it to continue. IMO, it is unconstitutional. That being said, this sailor would do well to just follow his orders in the performance of his duties. This is a fight the Congress should be having, not a midshipman. As long as he is not ordered to rape, mutilate or torture the enemy etc.. he should obey his orders IMO.

[RightOnTheBorder]

If Boehnor and the GOP would find their balls and pass some legislation explicitly denying Obama permission to carry on with the Libyan war, this midshipman would have an arguement. As it stands, this war is implicitly agreed to by the other branches of government who refuse to stop it.

[oneolcop]

That the Midshipman is thinking about such issues indicates that he has a conscience. That's a good thing, especially for a warrior. Taking a principled stand in opposition to direct orders one deems unlawful comes with a price though. In history, we see examples of those who have taken such stands and the price paid by them. Looking at this problem from a distance -as in reading history, we see that such stands sometimes have the effect desired. However a great price is paid by the refuser. Unfortunately, in most cases, nothing changes until public outcry becomes so great that politicians finally summon the guts to demand that the law be followed. This occurs mostly around election time