Monday, June 13, 2011

Shut Up Shuttin' Up: A Midshipman Argues War Powers, Commenters respond Ad Hominem

A very interesting anonymous post over at Tom Ricks's blog written by a Second Class Mid voicing his concerns in regard to the constitutionality of U.S. involvement in the ongoing Libyan operation. I think the post and reactions show some of the best, and some of the worst in human nature.

Why?  The best way to approach this. Excerpt and comment.

The post is introduced by Ricks. Here it is, in part (emphasis mine):

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.

I wonder at the meaning of the italicized bit. It seems to be either a conceptual confusion or recommending to educators at the Academies that some things just don't need to be talked about, a nuanced 'shut up we don't talk about that kid.'  On the conceptual front we can say this: Surely the question of whether or not an order is legal is dependent upon whether or not the order abides by the law of the land. "War crimes and the like" are a subset of the illegal. But there are actual and potential illegal orders that are not war crimes. Trivial example: I order a junior to hand over the office stapler for my personal use. That's an illegal order, but hardly 'a war crime or the like.' Now, while it is true that things can be murky vis legality or orders, it hardly seems a credible response to this fact about the concept that we should simply refuse to discuss any applications of the concept that are vague in this way. Isn't it wiser to vigorously discuss such cases, in the hopes of clarifying the concept or at least getting clear about its vagueness or ambiguities? Hiding such cases exposes ex-students to risks. The approach Ricks seems to advocate is simply hiding things. It recommends instructors at the academies take the 'shut up kid..' approach. Socrates is spinning in his grave somewhere in Athens.

Whether or not an order abides by the laws of the land, in particular the Constitution is not only an intelligible question, but one that is perfectly reasonable to raise. Even if you believe the Libya intervention sans Congressional approval is not legally problematic, one must admit that it is easy enough to alter the circumstances of the case, creating a hypothetical case where no war crimes are going on, yet an executive order to go to war is questionable legally/constitutionally.

What exactly would be wrong in discussing such a case? Would midshipmen not be well served considering such questions? In fact, it is responsible to expose them to such cases as part of the process of allowing them to give free and fully informed consent to service, isn't it? All third class mids are exposed to discussion of just such scenarios so they can go into service 'eyes wide open', in as full knowledge as possible of the personal nature of that commitment. After all, they will be the ones responsible for executing all orders that come down the chain. If they have a responsibility to say "no" to illegal orders that require "war crimes and the like" but do not have responsibility to say "no" to other sorts of illegal orders, on what basis is this sorting made? If they are expected to swallow it when ambiguous or vague cases of constitutionality of orders come up, once again, they need to be told as clearly as possible why. Ricks intimates that there are several good arguments to that effect, and airing the midshipman's argument is a way to give them voice.  Does this happen in the ensuing discussion? Let's see.

OK, now the actual argument from Midshipman "A":

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.

In their decision to place the power to declare war with Congress, the writers of the constitution sought to limit the ability of the president to use military force as an autocrat. Unfortunately, the founding fathers had never seen an undeclared war and didn't foresee the emergence of such a beast. We are left to deal with this oversight.

The conflict in Libya has now continued for more than 60 days without congressional approval. Not only is this unconstitutional, but it is in direct opposition to the War Powers Act, passed in the wake of the Vietnam War.

Officers of the United States Military take an oath to obey only lawful and constitutional orders and refuse all others. The servicemen and servicewomen who are currently fighting over Libya took that oath. It is their professional obligation and ethical duty to disobey their orders until constitutional and legal requirements are either changed or met.

The pressure that a refusal of orders would place on the President would be impossible to ignore. Even if the ensuing legal debate were inconclusive, no President would likely venture to take action which could result in a similar response. The constitutional balance of power would be restored because a professional precedent would have been established within the military, if not a broader legal one.

Congressman Abraham Lincoln once remarked, "Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us." By giving only Congress the power to declare war, the constitution takes out the personal element that was so often a cause of war in the era of Kings. While President Obama is certainly no oppressor, the trend that he is reinforcing opens up the possibility that the time will come where we will have to contend with a leader who is.

While Congress in the past has authorized uses of force using language that does not include the word "war" on several occasions, and presidents have read appropriations as authorizations, and the history of wrangling over the War Powers Act is, well, chequered, nevertheless, the Midshipman's point here cannot be gainsaid.

The controversy is there. He is right to notice it. He is right to be concerned about the Libya intervention, as a matter of concern, as possibly illegal by the letter of the WPA.

While one may disagree with the recommendations of Mid A, one cannot deny his concern. If the continued participation of U.S. forces in the intervention in Libya is in fact illegal by the letter, then, as far as that goes, there is a reason for the Mid to make the argument he does. There is a reason for any officer in the U.S. armed forces to be concerned that he is executing illegal orders. Be that as it may, one might argue that the situation is hardly unique, and one can reference Korea and Vietnam as obvious cases in point. No doubt one can probably point out appropriations in the present conflict, and argue that they are at least tacit Congressional approval. But, the fact of the matter is that no request has been made of Congress to authorize, and Congress is growing increasingly frustrated. They (or at least one house) have requested a request from the executive. Like I said, even if one is inclined to poo-poo this as politics, one can imagine things coming to a head in this case, or one like it in the future. At that point, Mid A's concerns become quite pronounced and apropos.

One might argue, as has also been done before, that good order and discipline cannot be maintained with every Tom Dick and Harry playing 'ward room lawyer' with the vagaries of the WPA and Constitution, and that the oath of office and prevailing military culture does well to frown on such behavior. The nation is served best by a non-politicized officer corps. Such arguments were tendered for different reasons during the Bush years. Anyone remember the 'revolt of the Generals'? (And Bush did have authorization)

There is something to be said for this argument, and it is probably the strongest argument against Mid A's recommendation. For, we can invoke a sort of slippery slope here. If such actions are permissible in the case of military actions of questionable constitutional legitimacy, actions officers believe are not sanctioned appropriately by Congress, then why limit the 'striking' only to those sorts of perceived illegalities? Officers will be prone to taking such actions against orders more proximate in the chain of command. All hell will break lose, and the military establishment will be reduced to a bickering kindergarten melee.

None of this can be lightly taken.  I think all of this is worth open and frank discussion. That does seem to be the intent of the last two sentences of Ricks' intro. 

So, to summarize: we have this lowly Midshipman venturing to poke his head out of, he's on Summer Cruise somewhere, getting hands-on experience in big Navy. He's been talking to officers out there, and some have misgivings about the Libya operation. He thinks about it, and  musters the moral courage to submit his missive to one of the most widely read military related blogs, and what does he get? A rhetorical swift kick in the ass by commentors, that's what.

The post reflects very well on Midshipman A. It also reflects very well on the Academy. Much care goes into the development of midshipmen moral and legal awareness. Coursework is intensive in that regard. So, Mid A is keenly aware of our history and interpretations of the constitution vis military operations. He is quite right to point out that authorization was not sought for Libya, (one might add, with the not so convincing argument that it was in fact not needed because command was ceded to NATO, and our forces were allegedly 'small enough' to be of no worry vis the War Powers Act.) 

Now, we can perhaps point out to him that his solution is a bit drastic. That would be the foundation of a discussion that would highlight the unique and sometimes morally challenging role of a U.S. military officer, an officer in a military institution under civilian control, regulated by the Constitution. This would spawn a discussion that would yield fruit, no doubt. So, surely, that's the way things went over in FP-Blogo-land, right?


A selection of the finer contributions. One comes from "rubber duckie"

Aha, a sighting of the Sea Lawyer at an early age

"Learning to dislike children at an early age saves a lot of expense and aggravation later in life." Robert Byrne

"How sharper than a serpent's tooth it is to have a thankless child!" William Shakespeare

"Children should neither be seen or heard from - ever again." W. C. Fields

This is sophistic drivel, but I do hope this kid does act on his ideas here and saves the military the expense of commissioning him and then throwing his silly ass out of the Navy
Wow. That one was the first, and Ricks had to call him out. (Although he takes this guy for a 'right winger' for some reason or other. Perhaps he's a regular 'contributor' that Ricks has run into before who has in previous 'comments' given vent to right wingery? Who knows. But, suffice it to observe this: RD's comment is itself indulgence in sophistic drivel, albeit spiced with pithy quotations. There is no argument. Big brave Duckie waylaying a lowly Mid. Be Proud Duckie. Be very Proud.)

And another fine contribution from someone called "Quang"

Seriously, Midshipman Second Class

Focus on your summer cruise or USMC OCS! Wait, the US Congress never ratified the Paris Peace Accords so it did not have to withhold it. Ah, there's the rub. Rubber Ducky, my bet is he goes Navy.
I know I'm one to be talking, but....smartass. And once again, little argument. What exactly is the connection between a peace accord and a congressional approval of military operations? No doubt, it is left unsaid, because it is Soooo obvious to the enlightened, and Quang does not deign to enlighten the benighted quivering Mid he has so ably vanquished with his rapier wit. Brave Sir Quang.

Now amongst the dreck are some comments that seem to have a handle on civility. Here are some good ones:

First, from "Grover 721"

more frustrated with comments than actual article

Good on him/her for actually having an opinion and asking the question. If for no other reason than to entertain me for 5 min while I take a break from work.

I have an urge to defend my former stomping grounds based off some of the comments seen above. Reminds me of the days following graduation when we begin to work our way into the mix with the other new officers only to find a deep resentment of academy grads. I don't care about the reasons why or the ignorance behind most of the comments. I would like to say that very much like every other officer program (OCS, ROTC....) USNA has its good and bad products.

While everyone is quick to dump on this kid (still learning by the way), I must say that they have already proven to me that they are probably pretty good at multi-tasking. Thats worth something right?

And another civil individual, "Orazor"
Let me get this straight: a future officer in the Navy composes a well-written and thoughtful opinion on the use of executive power, and all we can do is write snarky and condescending remarks about it? Congratulations, Best Defense readers, you've just reached a new low.

Good on him/her - the military needs more individuals willing to think critically. In time, that skill will be honed by experience and further study; just because the opinion is ill-formed now doesn't mean that we should discourage intelligent discourse.

 Well said.  "Shut up, we don't talk about that kid" is not sufficient.

And..Uh...yep. Mids certainly are accomplished multi-taskers.