Signers of the Declaration of Independence, Philadelphia, 4 July 1776
Here I stand, I can do no other.
Martin Luther at the Diet of Worms, 17 April 1521
Alea iacta est
Cesar on crossing the Rubicon, 49 BC
There is no substitute for victory.
General Douglas MacArthur, April 1951
“I shall return to my native state and share the miseries of my people; and save in defense, will draw my sword on none.”
Robert E. Lee, on his resignation from the Army, 1861
“But the thing that David had done displeased Jehovah”
David, Bathsheba, and Uriah the Hittite 2 Sam. 11:27
Even as my conservative heart soars in admiration for the courage of Lieutenant Colonel Cliff Kent for risking his good name, his rank, his pension, and even his professional standing as a doctor on an issue of conscience, my conservative head whispers, "have a care." Even as my conservative yearning for constitutional justice is quickened, my conservative regard for good order is also alerted.
As with many constitutional, legal, and political questions the real fulcrum is not what the Constitution, the law, or the politicians say, but who gets the say. Early on in our republic Chief Justice John Marshall cleverly contrived an argument which holds that it is the Supreme Court that has the say over the constitutionality of the actions of the other two branches of the federal government. Occasionally this assertion has been challenged, notably by Presidents Jackson, Lincoln and Roosevelt. Sometimes the matter is taken out of the hands of the Supreme Court when, for example, the issue of the right of the state to secede from the union was settled at places like Sharpsburg and Gettysburg without the intermeddling of men in black robes.
In 1861 many of our military officers, most famously among them Robert E. Lee who was actually offered command of the Union forces, were called upon to decide what their oath required of them when conflict arose between their loyalty to their states and their professional duty to the nation. Many followed Lee's example and resigned their commissions because they held that their loyalty to their state must in honor supersede their loyalty to the nation when there was irreconcilable conflict. Robert E. Lee conceded that argument and the argument over the secession at a place called Appomattox. Although properly called, Appomattox Courthouse, the issue is not decided in a court of law or in a hall of Parliament but upon a field of strife.
In keeping with his character, Lee was scrupulous in the manner and procedure of declaring his choice. He resigned his commission explicitly stating he would not draw his sword against Virginia nor would he draw his sword against the union except in the defense of Virginia. After Appomattox there were many radicals who demanded Lee be tried for treason but for reasons both practical, political, and legal he was never so tried but his property was forfeited during his lifetime and its value not restored to the family until after his death, and the threat of hanging for treason was held over him for some time. The question once settled at Appomattox, Lee for his part scrupulously complied in word and deed to the demands of loyalty to America and to the union until his death. Whatever his internal agonies, and there is reason to believe they were great, Lee outwardly reconciled himself to the decision of the battlefield.
My namesake, as I discussed in my "about page," followed a somewhat different course and could not reconcile himself to the union until he had reconciled himself to his maker. Significantly, General Forrest's post bellum biography reflects an assumption that there was no practical public forum in which his cause might find either justice or a fair process.
After the war the Supreme Court occupied itself with tidying up the battlefield and ratifying the decisions made at places like Sharpsburg and Gettysburg. In no sense did The Court undertake to undo the decision made in the field. It was the soldiers and not the court who got to decide that issue.
It is worth noting that Lieutenant Colonel Cliff and has so far acted honorably in the manner and procedure of making his "civil" disobedience. In a sense he is even more honorable in this regard than was Billy Mitchell who deliberately, perhaps willfully, invited his own court-martial by publicly criticizing the service, contrary to military regulations. Lieutenant Colonel Lipton is expressly calling for his own court-martial. He is not leaving open any equivocation of fact for his defense as he explicitly states that he will not obey an order made in the regular course because he believes Obama is not constitutionally qualified to be President of the United States-or at least has not properly demonstrated his entitlement. The Colonel, who was also a doctor, is as scrupulous and honorable as Robert E. Lee in acting on his conscience.
It is worth thinking about the word "civil" in the phrase "civil disobedience" because we are not in the civil arena we are in the world of the military. The framers of our Constitution were many of them classicists and so were well aware of the danger of a Caesar usurping the legitimacy of a republic and, as prophylaxis against such a man on horseback, planted a barrier as wide and clear as the Rubicon between the military and the civil government.
In matters military, the question of "who" gets to decide is explicitly answered in the Constitution: The Commander-In-Chief, a civilian, is the "who" but even he is subject to powers vested in the legislative branch in the power to declare war and in the power to fund armies and navies. The primacy of the civilian over the military has been well established in our republic and confirmed in the matter of firing of General MacArthur as recently as 1951. The civilian control is the president, yet Congress gets to make rules, regulations and laws concerning the makeup, funding, and conduct of the military.
We conservatives should be happy when we see tension between legislative and executive branches over such things as the duty of an officer to report inconvenient facts damaging to the administration in hearings conducted by the legislative branch. This is healthy unless it degenerates into a power struggle in which the military becomes a pawn of one faction or another as it did, for example, in the struggles of the Army-McCarthy hearings. It is healthy because we conservatives do not trust anybody, not one of the three institutions, and certainly not the military itself, with unfettered military power.
In other words, we conservative constitutionalists expect our military to be subservient to the civilian but we also fear the civilian as a source of usurpation when in control of the military, just as we fear a Caesar crossing the Rubicon, so we try to diffuse and check that power over the military by dividing it between the president and the Congress and even between the federal government and the states. We even suffer our Senators to publicly admonish brave generals not to, "call me Madam."
We now have the case of an honorable man, a serving officer and a physician, an honorable man who is behaving honorably, as he tells his civilian masters that they have not behaved honorably. Unfortunately, he must do that not directly against the civilian masters themselves who have dishonorably abdicated their responsibility to vet the constitutional eligibility of a president-elect, but against his military superiors in the chain of command within the military. And therein lies the rub.
A Military officer is nothing if he is dishonorable. It is insupportable that dishonorable men could hold the fate of others in their hands. This is part of our ethos since David, Bathsheba and the unfortunate but honorable Uriah the Hittite. Thus, it is important that Colonel Lakinexercises his "civil" disobedience in a forthright manner. It is a pity that he is driven to do so in the military context, that is, it would have been much to be desired if he had resigned his commission and then spoken out. That would probably avoid risking a precedent that a serving officer can disobey an order made in the regular course because he believes the Commander-in-Chief serves unconstitutionally. The threat to the chain of command and to the civilian control of the military is obvious.
But Colonel Lakin could not make effective his civil disobedience in the civilian world. Once he resigns his commission his 15 minutes of fame is over. It is notable that Billy Mitchell lost much of his ability to reach the public to preach for air power after his resignation. As a practical matter, a military court martial is the only effective way Colonel Lifton could seize the moment to make his point. In doing so he is explicitly assuming the ethical risks of that decision by knowingly exposing himself to court-martial. He honorably assumes the burden of ethical civil disobedience, a lawfully imposed penalty.
Indeed, his decision can be regarded to be all the more honorable relative to the dishonor of so many serving politicians who have left a man of conscience no other option. So far, the Secretaries of our various states have looked the other way and certified the candidate without actually examining his bona fides . The press has abdicated its traditional role to illuminate such questions out of a worldview that says the Constitution can be damned if to do so will advance their yearnings to re-live the glory days of the civil rights struggle. The Congress of the United States certified Obama as president on virtually no inquiry whatsoever and in the face of warnings that Barack Obama might not be a natural born citizen; it cravenly failed properly to investigate the truth and determine his actual status. The courts have not, and no doubt will not, address the issue on the merits. Every institution mentioned can rehearse rationalizations for ignoring this issue while concerned citizens are denigrated and marginalized, but a growing portion of America suspects that at core the motivations of every one of the institutions that failed involved pure but base political correctness which reflexively avoided the radioactive issue of Obama's race.
The Constitution sets up the states, the electoral college, the Congress, and even the courts to decide this question. None will go near it. Our culture has set up the press and our political parties to investigate these matters and report to us. Both national parties and the press will not go near it. Surely, even if one is intellectually convinced that Obama was born in Hawaii and is a natural born citizen, one should nevertheless be intellectually honest enough to say that the system must provide some forum somewhere for determination whether the Constitution has been met. But the system will not. That is why the doctor's actions are honorable. The context allows it.
When the system fails to provide an orderly forum in which the public can repose confidence for adjudication of disputes, it invites civil disobedience, disregard of laws and the undermining of the rule of law, it weakens the Constitution and it makes cynics of patriots. In this case the systems derelections threatens the good order and discipline of the military.
The Doctor has chosen patriotism. The rub is that patriots will not decide the issue. The court-martial of Doctor Lakin, if it occurs, will proceed on a strictly limited set of issues the underlying facts of which will not be in dispute. Unfortunately for the system, and of course for the Colonel, the underlying facts will not be the legitimacy of Barack Obama, they will be whether Colonel Lakin willfully disobeyed a regular order. It is a moral certainty that any military tribunal will not presume to pass on the legitimacy of the Commander-In-Chief. No matter that they have abdicated their responsibilities, the issue must be left to the civil authorities. Their dereliction does not operate by default to land jurisdiction to a military court. A military court does not get the "say" because that would be to turn our constitutional system on its head.
The facts not being in dispute, the military adjudication can only be a finding of guilt. The question is, will the civilian courts hear the matter on appeal and will they will entertain as a defense the disputed constitutional eligibility of the Commander in Chief?
At least Colonel Lakin's stand for civil disobedience solves the issue of standing which has heretofore frustrated every attempt to get a judicial forum to adjudicate the issue. Clearly, anyone standing accused before a military tribunal has "standing."
But standing alone probably is not enough even in a civilian court to make the defense itself available. In other words by way of analogy, Congress might have behaved unconstitutionally in the making healthcare reform because it was actually a revenue law not initiated in the House of Representatives but it is unlikely that a court would excuse someone from its provisions even if it found that the manner of passage was procedurally repugnant to the constitution. That is a different matter from saying that the law itself is unconstitutional. Even less likely is a court to concede that the alleged ineligibility of the Commander-in-Chief can relieve an officer of his duty to obey orders made in the regular course by superiors who are not even carrying out the direct orders of the president of the United States but are issuing orders as intermediate superiors in the chain of command in the normal course of their duties. To rule otherwise would be open the country to chaos.
Under such a scenario, executive orders and the civil side need not be obeyed and every sanction invoked for their breach would have to be undone. The legal effect of every piece of legislation signed by the President would similarly have to be set aside. It is not an exaggeration to say that the country would spin into chaos and is, therefore, inconceivable that a court would go that far even if it were disposed to rule that the Colonel cannot be prosecuted. It is highly unlikely that any court would want to go anywhere near a ruling which might ignite such chaos. The likelihood is that it will duck the question, denying the defense, and holding that the Constitution makes it the responsibility of other branches of government to determine the eligibility to serve as president.
It is in order to draw a distinction from a line of reasoning which says that an officer, or any soldier, is not relieved of culpability for illegal actions even though those actions were done pursuant to direct and otherwise lawful orders. In other words, "I was just obeying orders" is not a defense to war crimes and atrocities. But note, atrocities themselves are malum in se that is they are inherently wrong. The orders sending the Colonel to Afghanistan are not inherently wrong at worst they are . Malum prohibitum What is alleged to be wrong is the provenance of the order, not the order itself as is the case of an order to commit an atrocity.
When politician after politician, judge after judge, institution after institution fails to provide an orderly and decent process the "who" of our system of government breaks down. Colonel Lakin in his way is trying to restore the system. He's doing so honorably and at considerable personal cost. When government as an institution fails to act institutionally, other actors rush in to fill the vacuum.
If there is any dishonor in this tragedy, apart from craven politicians who have failed to do their duty so far, it is to be pinned on the Commander in chief who has hidden behind the privileges and prestige of his office and, most reprehensibly, by the protection accorded to him by his race. He has pushed the country further toward a condition in which the Constitution as the authority which holds us together is put in doubt.
Shame on you, Barack Obama.
