There's no gray area. It's just looking for an explicit directive reminding everyone that, while FB is not real life, what you say and do there still counts in real life.
So a guy in the parking lot at work has the IDIOT bumper sticker Like you can find here: http://www.cafepress.com/ obama_idiot_bumper_sticker,394498094 He comes and goes to work in uniform. Kosher? I don't think this kind of expression is acceptable myself. Just saw it today and this thread got me thinking...
So, a thought. And I caveat this statement with I know the regs and UCMJ(well a working knowledge of it). But we all swore to the Constitution and not a person. I believe that is for a purpose. Now, if those people above us are not following the Constitution, is it not our duty to uphold it and call them out? We all had our cute little training about refusing unlawful orders. But does not this still apply? This meant to be a "think of this" than attack my opinion.
IIRC, the ruling from the JAGs at Legal O Skool was that single, normal-size bumper stickers are 1st Amendment protected; it's the idiot who puts a "Bush/Cheney '00" or "Obama/Biden '08" custom vinyl applique across his windshield that will get hammered. But I also think that that ruling was for more generic campaign stickers. As a Legal O, if I saw that a member of my command had a bumper sticker calling the sitting President an idiot, I would be running it by their DivO/LCPO at a minimum, and maybe the XO.
Your working knowledge of ucmj qualifies you as a constitutional scholar? I know mine sure as shit doesn't. There's a mechanism in place already for deciding if the executive and legislature are following the constitution. That's what the courts are for. It's not the job of the military to "call them out" and make decisions about national policy. You want to see what happens when armies decide that is their job, there's plenty of examples in Africa, South America, etc. Those of us in uniform are free to debate and disagree, sure. Disrespect and disobey, you're crossing a line.
If the mechanism is already there then why swear us to it as well? Like a backseater ejecting, if you invoke the Constitutionality rule when not warranted, you'll only get yourself in needless trouble and look stupid. However, everyone develops their own thresholds (radalt showing 150' and pointed at a mountain on a 500' leg with no correction by the pilots after screaming at them isn't usually a specific criteria in the NATOPs) as to when to be their own seat commander. While there are plenty of military junta cases there are also plenty where the military / security force becomes a tool of a bad regime since they were loyal to a person vs principles.
In your mind, what would be a good example of when an individual should step in and determine the constitutionality of an order or policy on their own?
I see what you're getting at, but I think it's a spurious analogy. It seems to be suggesting that we, the armed forces, can decide whether to support the elected government based on our opinions of the particular person in office. You're exactly right that we support the institution, not the person, which is why we don't get to base our support of that institution based on the current occupant. Let's have a sanity check here. I have mixed opinions on the current administration, but I don't for one minute expect an order to come down to NORTHCOM to force everyone to buy health insurance at gunpoint. The "illegal orders" some seem to be fulminating about exist mostly in their heads. The SGT in question gave as an example of an order he wouldn't follow would be one to seize citizens' firearms. Anyone see that in message traffic lately? And even if you believe that deep down the President would really like to issue such an order...he hasn't. And there are plenty of established, independent institutions standing between any one man in office and doing something illegal before we get to the armed forces. I could come up with examples of hypothetical orders that I could not obey in good conscience. Until I actually receive one of the orders, though, as a commissioned officer, I don't have any business questioning the authority or legitimacy of the president's authority as C-in-C.
Excellent article in the Spring issue of the NWCR pertinent to this issue. Though I may not speak as eloquently, I think my opinion is shared by a few... from the article... Kohn cites Major General John J. Pershing’s instructions to First Lieutenant George Patton in 1916: “You must remember that when we enter the army we do so with the full knowledge that our first duty is toward the government, entirely regardless of our own views under any given circumstances. We are at liberty to express our personal views only when called upon to do so or else confidentially to our friends, but always confidentially and with the complete understanding that they are in no sense to govern our actions.” Or in the words of Omar Bradley, the first chairman of the Joint Chiefs of Staff, “Thirty-two years in the peacetime army had taught me to do my job, hold my tongue, and keep my name out of the papers.”
There's a lot more people excited about disobeying "unlawful orders" when they don't realize the corollary. The lawfulness of the order will be determined at your court-martial. If it really was an unlawful order, you'll be acquitted. If not, stand by.
"Oathkeepers" or whatever the hell they want to call themselves these days scare the hell out of me. They view themselves as some sort of constitutional profit come to explain to the rest of us the true meaning of our Founding fathers and how we've all had the wool pulled over our eyes by some vast governmental conspiracy bent on Martial Law and eventually a totalitarian state. Really what they are "advocating" and trying to educate us with is about 2 steps shy of the good ol'fashion coup d'etat. They are blinded by a deluded logic and there is almost no use in even trying to argue with them about it. We had a guy on staff in flightschool that used to have little 20-30 minute workshops during formations discussing the validity of the stand point that we as the military need to "be prepared to take action" or whatever such nonsense." I was very glad to see that guy fired out of a cannon from the Army when the higher ups finally got wind of it.
A condensed, executive version of the article would be great, (and maybe I'll do that after I finish this paper...) but in the absence of something like that and knowing how folks' eyes glaze over at scholarly articles, I'll bring attention to the five-pronged test that Snider proposes for determining the legitimacy of military dissent: If you're looking for a primer on modern (GWOT and post GWOT) civil-military relations, I recommend Owens' book US Civil-Military Relations After 9/11: Renegotiating the Civil-Military Bargain.
The only example I can come up with of an unlawful order being carried out is the post Katrina weapons seizures by the New Orleans PD, with assistance for the Louisiana NG and Oklahoma NG. I'm not sure how the NG being activated by the Federal government vice the state government changes their requirements/oaths, but this is the only glaringly obvious example of an unlawful order. I'm not sure any of the gents who were activated and conducted the searches and seizures spoke out against it, so again, there's no actual court martial to challenge the lawfulness of the order as a precedent. The Courts later found the order to be unconstitutional, and demanded the guns be returned to their owners as soon as possible. The Louisiana state legislature also passed a law forbidding the confiscation of legally owned firearms after the fact. http://articles.boston.com/2008-10-...-second-amendment-foundation-stephen-halbrook
The Louisiana Guard was operating under Title 32 (State control) during Katrina. When I was there, there were lots of non-standard things occurring and folks making up rules they thought were in the best interests of all involved. I know the U.S. Marshals had to respond to a couple of calls of 'squatters' in some of the nicer neighborhoods, which may be why they started arresting the folks in the houses at the end but later released the folks. The U.S. Marshals that I was working with were very concerned with the amount of weapons in and around Louisiana and the basic lawlessness that was happening everyday.
Well, there you go. You receive an extraordinary order under extraordinary circumstances. Obey or refuse the order as your conscience dictates, but you will be held accountable either way. My point holds: our courts are the arbiter of what is and is not constitutional, not the armed forces, and that's exactly what happened, even in an effed up place like Nawlins after the storm.
Summary: disobey or object to what you honestly believe are unlawful orders, but expect your actions to be reviewed later. If you receive administrative punishment, then roll the bones and request court martial if you're convinced you're right. Just don't go wanking to the media if it turns out you were wrong. This "unlawful orders" business is supposed to be for things like being told to burn down the village or machine gunning civilians, not this penny-ante New World Order black helicopter bullshit all the recent cases seem to involve. That stuff gets decided at way higher pay grades.
I always felt I was paid the big bucks to know the difference between a lawful order and an unlawful order (within my area of expertise) and to act accordingly. The "unlawful order" business is not just reserved for big issues like machine gunning civilians or violating the Constitution etc. While those types of examples are much more interesting to discuss, I would suspect that the majority of "unlawful orders" grey area revolves around the more mundane administrative type issues that can still end multiple careers. I always felt an Officer was remiss in their duty to their Command if they did not voice concern over the legality of an order immediately.
Voice concern, sure. But there's such a thing as picking battles and addressing things the right way. No one wins if you throw your career away the first time some skipper misapplies the liberty risk policy, or fill in some other hypothetical.
How much illegal stuff were you dealing with, anyway? Are we talking "You shouldn't claim a parking ticket as a business expense," or are we talking substantial things here, e.g. embezzlement, covering up vast government conspiracies, etc.? I've had to advise commanders on what might be termed "judgment calls" many times, but never had a commander propose something actually illegal, except maybe minor provisions of the 4790 or 3710, which were generally just borne of ignorance, vice intent to do something wrong. Those aren't the kinds of things that would make one go "I REFUSE to carry out that order, sir!"
No, I never dealt with anything Illegal. As the Supply Department Head, my role was to make sure everything we did was legal. Did I have to address potentially illegal proposed courses of action? Sure, spending the wrong dollars the wrong way even for the right reason could be illegal, - unless someone is an expert on all of the fiscal rules, regulations, laws and inherent minutiae - it can and occasionally does happen (see the story of the head of the GSA). Even after doing that job for years, conducting the appropriate research, consulting with other subject matter experts, exhausting options for waivers, memo's or authorities etc. (To occasionally transform the Illegal into the Legal) was just a normal part of the job. At times I had to be the bearer of bad news - Would I have said "I REFUSE to carry out that order, sir!"? - No, that’s a little too Hollywood and overly aggressive. I probably would have went with something along the lines of - "Skipper, we researched X and after contacting A,B,C,D requesting waivers/memo's/authorities etc. etc. I can't find any legal way to do X". Hypothetically, had the CO at that point said, "Well do it anyway", after exhausting my superior social skills (Help me help you not get fired! - or- Dammit! I haven't lost a CO yet and i'm not going to lose you!), I would have requested the order in writing (as taught in Supply Corps School should this type of issue become an issue). If that massive warning gong didn't send the message, then refusing the order would probably be the next prudent step after consulting with the JAG.
Pfft, just take that shit straight to Navy Crimes. "COs RUN AMOK - FORCING FRAUD, WASTE AND ABUSE - SHOULD WE FIRE MORE?"
Navy Crime sis better then making Bloomberg. I thought that GSA hiring the clown for conference was especially classy. http://www.businessweek.com/ap/2012-04/D9U625580.htm
