First Principles

In search of the Unified Theory of Conservatism

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Traitor or Patriot? Soldiers and Constitutional Law

February 25th, 2009 · 8 Comments

During the Bush Administration, there were a few members of the military who deserted their country and their brothers in arms.  In order to justify their treason, they decided on their own that the Iraq war was Unconstitutional.  Their legal reasoning was absurd, but more importantly, they didn’t have the authority or standing to make those decisions.  In pushing the line between the military and its civilian superiors, they dangerously threatened our entire Constitutional scheme, begging liberal judges to legitimize the concept of coup d’etat.

When I was in law school, I wrote extensively about one of these criminals named Ehren Watada.  I was unsparing in my criticism of him, and stand by that criticism now.

Now, there are at least two soldiers on the other side of the political spectrum who have decided to mimic these tactics.  Like the deserters on the left, no matter how we might feel about the current Commander in Chief, these soldiers deserve nothing but our scorn.

The poster child for this little revolt is 1st LT Scott Easterling.  His legal argument is that President Obama hasn’t proven to LT Easterling’s satisfaction that he’s a “natural born citizen” as required to be eligible for the Presidency, and therefore he is an “impostor” whose orders must not be followed.

But LT Easterling isn’t responsible for vetting candidates and accepting them onto state ballots.  He’s not the Chief Justice of the Supreme Court who swore the President in.  That’s not his judgement call to make.  He’s entitled to his opinion, certainly, but to publicly repudiate or refuse to follow the orders of the CinC when he’s on active duty is a crime, and he should be held accountable for it.

I find the Constitutional arguments unavailing.  (For a discussion I had on another blog about it, see the post and comment thread here.)  But really, it’s beside the point with regard to these guys’ actions.

On the lefty side, the deserters claimed the Iraq War was Unconstitutional for a variety of reasons.  Others more amorphously decided the war constituted a war crime, and made a moral judgment that it wasn’t the right thing to do.

One of the arguments I always made to answer this was to have them imagine a General who thinks the President is derelict in his Constitutional duty to keep Americans safe because he wouldn’t order a pre-emptive strike on Iran’s nuclear production facilities, and so orders it anyway.  Would they accept the General’s own Constitutional or moral judgment?  Should he be excused or praised for “following his heart”?

And then in the midst of a claim of principle is the naked partisanship.  There is an argument that has been made that McCain would also have been ineligible due to his birth in the Panama Canal Zone – any thoughts on whether LT Easterling would have refused to follow the orders of a President McCain?

One of the foundations of a free society is that the military is under the total control of an elected civilian government.  The military is a powerful force, and world history is littered with the corpses of civilizations and nations whose military leadership realized they had the physical might to ignore the political establishment and even take their place.  To accept a precedent of soldiers ignoring a President they don’t like is to invite a great evil on our system.

I think it matters if the President is ineligible, just as it would matter if it turned out he was only 26.  But that question is already being explored in a multitude of courts by civilian activists, who have every right to make those challenges.  And the important thing is that they are seeking an adjudication by someone with the authority to make a binding determination upon which others may act – they are not already acting (in terms of accepting the President’s lawful authority and following federal law where applicable) as if their lawsuits have already been won.

What matters even more (at least to me) than the relatively technical question of where Obama was actually born is that he was legitimately elected by a majority of American voters (and more importantly, State electoral college votes).  Easterling refers to the President as an “usurper” and an “impostor.”

But Obama didn’t usurp anyone.  The man in the White House is the same person those wide-eyed hopeful voters cast their ballots for.  (That the tax cutting, gun protecting, transparency demanding, budget hawk Reaganite of the campaign trail isn’t manifesting himself now that he’s in office is a surprise only to the wilfully ignorant, and in any event is a political question rather than a Constitutional one.)

Once elected, the election was certified.  He was sworn in by the nation’s top judge (twice).  The old administration completed a turnover, and left town at the appointed date and time.  Like it or not, Barack Obama is the duly elected President of the United States of America (at least until the Supreme Court determines otherwise), the office holder all military officers swear an oath to obey the orders of.

It is unclear what the two soldiers in question are actually doing right now.  Watada refused to deploy with his unit, and so he was prosecuted for missing movement.  Just what orders have been as yet refused from Obama is unknown.

What they have done is agree to join one of the lawsuits alleging Obama isn’t eligible to be President, which alone would seem to violate the Uniform Code of Military Justice’s prohibition on badmouthing the President or members of Congress (at least doing said bad-mouthing in some kind of official capacity).  At the very least, I would argue it’s conduct unbecoming an officer.  In any event, I hope they’re prosecuted, booted, and aren’t rewarded by the Obama haters the same way deserters in the past eight years were lauded, lionized, and supported by the Bush hating socialist left.

Our nation has enough problems with a President who doesn’t know what he’s doing, an economy in the midst of the whithering bombardment of socialism, and enemies launching ballistic missiles and firing up nuclear reactors.  We don’t need a military coup and a Constitutional crisis on top of the rest of it.

Besides – if this lawsuit is successful, Joe Biden becomes the President.  Does anyone really want that?

Tags: Constitutional Law · Military Service