"Serving the President"

Today it was once again possible to hear both serving officers of the armed forces and the newspeople who cover them speak of their belief that military and naval officers "serve the president."  This time the mention was in connection with the "discovery" that Petraeus and Odierno have decided (some time ago) that they will not vote in the national election.  Odierno was taped saying that voting would be a bad idea because to do so would compromise his ability to "serve the president" whomever that might be.

It was actually a very old custom of the US Army that regular officers did not vote.  My father did not vote until he retired from the Army.  That custom has not been followed for a long time, but the reason that Odierno gave is not the reason that was contemplated in the past.

In days of old, it was understood that members of the armed forces served the constitution and through that instrument they served the federal union.  That is quite different.

The principle is simple.  The president is not sovereign.  He is the instrument of the constitution as are the members of the armed forces.  The president has no authority or right to order anyone in the armed forces to do anything that is unconstitutional or indeed illegal.  If he does, then he need not be obeyed and such an order is proof in itself of a "high crime."

The present administration in Washington has done everything in its power to persuade that, in effect, the president IS sovereign.  This is a lie and a pernicious doctrine that, if accepted, would make us all the servants of a king or perhaps a queen.

I have had old army friends argue to me that they DO think of the president as king and that they must think thusly because how else would they know whom to obey.

I think it must be said that such ideas are unworthy in those to whom the constitution and the people have entrusted so much.  pl

http://en.wikipedia.org/wiki/Sovereignty

Comments

[lina]

There was a recent discussion here about putting "the classics" back into modern education. I'm seeing more of a need for basic U.S. history and old fashioned "civics." Certainly people serving in the Armed Services should be made regularly to take a refresher course on the Constitution to remind themselves what they are protecting and defending. Members of Congress could also use such a course.

[Will]

otherwise the President could pardon himself before he was impeached and removed from office and he would be in the position of being able to do no wrong.

in fact an absolute monarch can do no wrong hence the maxim "the king can do no wrong."

Bush cold not pardon Scooter until he had been convicted.

[Cujo359]

I don't understand this idea. I've never had trouble despising people even when I didn't get to vote against them. I've also respected some public officials in spite of having not voted for them.

In short, whether I vote for them is only one way of showing whether I do or don't respect someone and their opinions.

Meanwhile, it's sad and ironic that some of the people whose job it is to defend our political process don't feel they can be a part of it.

[dilbert dogbert]

The DOJ is infected with those people also.

[Col USMC]

COL Lang, I have been following your blog for at least four years and have finally decided to join the dialogue in order to let you and your other readers know that I agree completely with your comments regarding members of the armed forces serving the constitution. As a serving commissioned officer I was shocked upon reading GEN Odierno's remark, especially when you consider the number of occasions he's either reaffirmed his own oath of office or administered it to others. I can assure you I understand my oath of office just as you did and take every opportunity to explain this concept to our citizenry wherever I go and to ensure there is no question in the minds of the officers I lead. Best regards.

[Homer]

PL: This is a lie and a pernicious doctrine that, if accepted, would make us all the servants of a king or perhaps a queen.

In my mind, when I read `king' or `queen' I quickly thought of Elizabeth II who can supposedly trace her royal lineage, her `right to the throne', back 1500+ years.

When I think of Bush, who was `elected' (under historically abnormal circumstances) and those who `serve' the POTUS instead of the US Constitution, words and phrases such as `Führer', `Reichskanzler', and `Ein Volk, ein Reich, ein Führer!' come immediately to mind.

[dlb]

If Presidents want to be regarded as sovereigns then we may want to employ an appropriate modern version of Thalavettiparothiam. Seems only fair and reasonable.

[FDChief]

Thank you for reminding us what all too many of my fellow soldiers have forgotten - that when we raised our hands were swore to protect and defend not the President, not even the People, but the Constitution of the United States against ALL enemies, foreign AND domestic. Which would include those elected officers of government who presume to set themselves in the place of that very Constitution.

That these soldiers include the most senior officers is, of course, despicable and an indictment of the way we have chosen to select and promote our military leaders.

[William RAISER]

Col. thanks for this and related posts. Makes me think more deeply and pay closer attention to statements like those you quote. I appreciate the lesson.

[jon]

At hearings, other recent appointees have made reference to their fundamental charge as 'serving the President'. It is frequent enough to wonder if it is not, in fact, a policy of the administration to encourage or require fealty to the person rather than to the office.

Perhaps Lina is right, and this is a matter of poor education and an ignorance of basic civics. I remember clearly that my junior high school class was the first where Civic was not a required course, or even offered. At the time, I thought that everyone should simply know how democracy and government operated. I have since had time to consider and revise that opinion. We now have a citizenry that is profoundly ignorant of its rights, responsibilities, and of the operations of government. We suffer greatly for this.

It has been observed that among the many problems that Nazism bestowed upon Germany, perhaps the most significant was the alteration of the military oath. Rather than swear to the state or to the constitution, or even to the off ice of the leader, the military swore a personal oath to Hitler. Given a strong tradition of honor, and perhaps in fear for the consequences, most officers could not later bring themselves later to act contradictory to orders that were illegal, immoral, and even destructive to the German state.

The US military has a remarkable record of being nonpolitical, and of serving a civilian commander in chief. It also has a strong tradition of legal behavior. I know that the religious right is trying to make inroads that would jeopardize this status, apparently with great success at the Air Force Academy.

Reestablishment of the primacy of the Constitution and the rule of law is essential for the safety of the nation. Or we should be honest and establish an empire and appoint a Caesar.

[Eric Dönges]

Homer,

the word "Reichskanzler" explicitly does not fit, because it is a post similar to that of the British Prime Minister, or the U.S. President - i.e. the person picked to run the executive on behalf of and responsible to the sovereign.

[Serving Patriot]

COL Lang,

Thank you immensely for these words:

The president has no authority or right to order anyone in the armed forces to do anything that is unconstitutional or indeed illegal. If he does, then he need not be obeyed and such an order is proof in itself of a "high crime."

This has been one fundamental disagreement between my beliefs and the actions of so many of our military leadership throughout the past 7 years. It seems to me that senior uniformed leaders were well accustomed to "serving the Constitution" during the Clinton-era. Since Bush's selection to POTUS (also done extra-Constitutionally), these same leaders have shirked their duty and acted illegally by carrying forward numerous questionable orders. What we now know about the machinations of Wm. Haynes against the unified JAG Corps is the proof.

It is the DUTY of officers like Pace and Myers to oppose that which they know to be ILLEGAL instead of finding ways to make those acts legal (again, "enhanced interrogation" is the prime example). One cannot expect the colonels, majors, first sargents and corporals down the chain of command to refuse the President's orders - that is one of the first duty's of senior leadership. The best those far down the chain can do when confronted in this way is to seek to avoid carrying out their work (e.g. contentious objection, desertion), do what they are told in the minimum manner, or simply seek comfort in serving their comrades while cursing their situation. American soldiers are not dummies; many recognize their dilemma and must deal with their ever growing cognitive dissonance somehow (for some, it is becoming more political - witness Obama's financial support from the military - for others, sadly, it is simply checking out of their tortured life).

I for one am glad Odierno and Patraeus are making such a "sacrifice" for their nation by not voting. That they are doing it for what I consider to be transparently selfish, ego-inflating and wrongheaded reasons ("serve the President") serves to further illuminate their professional failure as you point out. It also highlight's their cowardice in that now they have a pre-made excuse to "serve" a new administration that, given their temperament and personae, they would not have ever voted for.

In a perfect world, the nation's most senior military leaders will be held to account for failing their duty and their subordinates. Sadly, in our world today, they will simply continue to live, for the rest of their lives, on the government retirement (dole) - earning more than 90% of their fellow citizens for simply doing nothing (while in many cases, earning many multiples of that retirement by schilling for defense-connected industry).

Thank you again for this post and for this exceptional "Committee of Correspondence." It is a thoughtful haven for the many who still serve the Constitution - and not the "Sovereign".

SP

[TomB]

Seems to me this is an area in which some latitude is required.

For instance, one could criticize Colonel Lang's father for not voting (and thereby not "doing his civic duty") based on the clearly fair idea that he could vote any way he wished so long as he dutifully carried out every lawful order of whoever won. So it would seem that by his saying he "didn't vote" this was really just shorthand for his saying that he didn't even want to start thinking in partisan terms, which of course is emminently honorable.

And I suspect if pressed something similar may be true for those who say they "serve the President." I.e., what they're really meaning is that they serve the *office* of the President, not the men or women who inhabit same. That is, by saying "the President" they are using the term more colloquially.

Nevertheless, such imprecision can be dangerous.

On another note however Will wrote:

"Bush cold not pardon Scooter until he had been convicted."

And I don't think that's true (although Will may have made that as a statement of what he'd like to see be true.) But in any event remember Ford pardoned Nixon before Nixon had even been charged much less convicted, thus making any prosecution meaningless in a way.

(Although, one could argue, even though one has been pardoned that doesn't mean one still can't be prosecuted for it and a guilty verdict couldn't be handed down, with the Judge then simply having to refuse to implement that verdict in a judgment of conviction due to the pardon. Could make a nice moral point for sure, and maybe that should have happened with Nixon. If so though it might be hard to say the same ought not have happened to Clinton too. In any event I kind of like the idea at first thought.)

Cheers,

[bstr]

Dear Sir, this question of who the military serves brings the culture wars of the United States into focus. Yesterday a Congresswoman from Minnesota called for an investigation of Anti-Americans serving in Congress. We do not need to look deeply into the past to recall the Army as under investigation for "commies and dupes" based on the same inflamatory rhetoric. In the movement to personalize the nation in the form of the President, the national service for Ronald Reagan stands as a metaphor for that movement. The tools of fear are hard at work in the service of a "Unitary Executive." A friend has carried a small copy of the Constitution on his person for years. Yet his concerns with Islamic terrorist cause him to follow Bush blindly and to proudly distribute literature portraying Obama as a Muslim.

[Dave of Maryland]

Abu Ghraib is the perfect example of the military system as it exists, not as we would like to imagine it. In theory soldiers have an obligation to disobey illegal orders, but in practice, disobedience comes with a heavy price.

I would be interested in hearing practical solutions.

[Cieran]

Colonel:

Thank you for this insightful post. As always, it's a pleasure having the opportunity to spend some quality time contemplating your thoughts.

I would offer two related considerations.

First, this tendency to confuse "the Constitution" and "the executive" is fundamentally un-American, and ought to be treated as such.

The military is not merely a job where one reports to a supervisory executive: it's a calling where one serves an infinitely larger purpose, and an appropriate means to help those who serve remember what they serve would be the institution of some appropriate form of accountability, e.g., a formal reprimand to General Odierno.

Being held accountable for poor judgment really does help clarify one's mind, and given the substantial responsibilities that come with Odierno's position, the penalties for ill-considered words and deed should be equally substantial.

Second, what continues to astound me is how so-called Christians can place their hand on a Bible and take an oath to serve the U.S. Constitution, and then break that oath so readily, whether via sins of omission (e.g., this particular lapse of judgment by Odierno) or of commission (e.g., Bush administration policies that gut the Fourth Amendment).

Comments like Odierno's ought to make us wonder why we allow such members of our government to behave in manners that are both un-American and un-Christian.

We, the people, deserve a lot better than this.

[rjj]

We have pissed away our inheritance.

This might be added to the sovereignty link:

Civics teaches slogans. We need history to understand what they mean.

Despite its historical significance, however, Magna Carta may have remained legally inconsequential had it not been resurrected and reinterpreted by Sir Edward Coke in the early 17th century. Coke, Attorney General for Elizabeth, Chief Justice during the reign of James, and a leader in Parliament in opposition to Charles I, used Magna Carta as a weapon against the oppressive tactics of the Stuart kings. Coke argued that even kings must comply to common law. As he proclaimed to Parliament in 1628, "Magna Carta . . . will have no sovereign."

Lord Coke's view of the law was particularly relevant to the American experience for it was during this period that the charters for the colonies were written. Each included the guarantee that those sailing for the New World and their heirs would have "all the rights and immunities of free and natural subjects." As our forefathers developed legal codes for the colonies, many incorporated liberties guaranteed by Magna Carta and the 1689 English Bill of Rights directly into their own statutes. Although few colonists could afford legal training in England, they remained remarkably familiar with English common law. During one parliamentary debate in the late 18th century, Edmund Burke observed, "In no country, perhaps in the world, is law so general a study." Through Coke, whose four-volume Institutes of the Laws of England was widely read by American law students, young colonists such as John Adams, Thomas Jefferson, and James Madison learned of the spirit of the charter and the common law--or at least Coke's interpretation of them. Later, Jefferson would write to Madison of Coke: "a sounder whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties." It is no wonder then that as the colonists prepared for war they would look to Coke and Magna Carta for justification. (source)

Bit of trivia. The publishing history of his Institutes is interesting:

Sir Edward Coke is most remembered for his forceful championship of the supremacy of the common law. He defended the common law against the prerogative power of the crown and the encroachments of ecclesiastical jurisdiction. In 1628 he published the first of four volumes of Institutes, which delineated some of the basic rights of an individual in a stable legal order. The last three volumes, which included an analysis of the Magna Carta, were so incendiary that they were suppressed by King Charles I for almost a decade after Coke's death. These books, as well as his case reports, were accepted as first principles of law. (source)

Charles I heard he was working on a book on the Magna Carta. As Coke lay dying his chambers were ransacked and his manuscripts confiscated. At the beginning of the English Revolution, Parliament ordered their recovery, and they were published posthumously in 1642. (source)

Coke was 78 when Institutes, the First Part was published. Even dead he was a pain in the ass to the Stuarts. Clearly it is necessary to be a pain in the ass; if only it were sufficient.

Apologies for excessive cut-n-paste.

[John Waring]

Thank you Col. Lang for your civics and history lesson. Our nation's historians have given us, in these past several years, a treasure trove of books on our founding fathers. Works have come out on John Adams, Alexander Hamilton, Benjamin Franklin, and George Washington. Gentlemen, do yourselves a favor and read anything Joseph Ellis has written on George Washington. Those of us with a few years under their belts will come away astouded at the greatness of these men, particularly the towering greatness of George Washington. In perhaps the single greatest act of statesmanship in our history Washington gave us our democracy by resigning as Commander in Chief of the Continental Army. He refused to allow his officers to make him a king or dictator. General Washington set the precedent that prisoners in our custody were to be treated humanely. Citizen Washington presided over our constitutional convention in Piladelphia. In the presidency's first two terms, George Washington established the happy precedents by which we still run our affairs of state. He, at the evening of his life, practically alone among the planter class of Virginia, had the courage and foresight to free his slaves, thus showing his contemporaries how to avoid the bitter chalice of the Civil War.

Gentlemen, if we steep ourselves in the history of our founding period, we will realize we have lost our way during the past eight years. We are refusing to walk the paths of our forefathers. We are refusing to stand on the shoulders of greatness. We are permitting nineteen lucky thugs, and the most insidious Machiavelli of our history, the dishonorable Richard Cheney, to subvert the Constitution of the United States. Col. Lang said it best. Cheney simply does not like our present system of government. It is precicsely in times of crisis that George Washington must be our lodestar. In comparison with the Revolutionary War, the Civil War, or World War II, 9/11 simply does not stack up as a existential threat to the Republic. Yet you and I have permitted small men, the current occupants of the White House, to use the subsequest crisis atmosphere to subvert the Consitution of the United States. I for one refuse to surrender my patrimony for a bowl of porridge. Gentlemen, we need to re-dedicate ourselves to the proposition of liberty. We must respond to her clarion call. While we have breath in our bodies no king shall stalk our land. No unitary executive theory, nor signing statements, shall subvert our laws. No agency of government shall listen in on our private phone conversations. No torture-enabling memoranda, written in secret, shall destroy the garment of righteouness worn by our armed forces for 200 years -- that prisoners in our custody shall be treated with humanity. We have had a remedy at our hand yet we have refused to take it up. President Bush and Vice President Cheney have commited high crimes against the Constitution of the United States, yet you and I have refused to bring them to book.

Shall we begin the process of renewal, Gentlemen, or shall the pathology of the past eight years be our patrimony?

Very sincerely yours,

John W. Waring
247 Coach Road
Cheraw, SC 29520

[Patrick Lang]

Mr. Waring

We thank you for the elegant intervention in this discussion.

However, it may not surprise you that I think your statement " He, at the evening of his life, practically alone among the planter class of Virginia, had the courage and foresight to free his slaves, thus showing his contemporaries how to avoid the bitter chalice of the Civil War" is an eloquent but overly simple explanation of the occurrence of the war of 1861-1865. pl

[Mad Dogs]

It doesn't strike me as unusual that in the Military, just like in most corporate organizations, it is considered politic to "accommodate" one's Master's little "idiosyncrasies".

Servile you say? Many find this approach to be most rewarding.

Not honorable you say? Well, to some, honor isn't everything.

And it would also seem that to many on that authorative, daddy-worshiping Right, bowing to one's liege lord like the strutting frat-rat Junya, is far more preferable than to kow-towing to "just a piece of paper."

Or am I misinterpreting this:

"Stop throwing the Constitution in my face," Bush screamed back. "It's just a goddamned piece of paper!"

This information comes from three West Wing sources who say a fourth White House employee in the meeting told them the President of the United States called the Constitution "a goddamned piece of paper."

All hail King George and his Regent Richard!

We sheep have grown fat and must be shorn!

[J]

Colonel,

Sadly it appears that Petraeus and Odierno have taken their 'oath' they swore to the Constitution as nothing more than empty words on their parts. How can such individuals look at themselves in the mirror each morning knowing that they have betrayed the very trust bestowed upon them by the citizenry (to protect and defend our Constitution, NOT to protect and defend a temporary Caligula a.k.a. prez).

[jamzo]

mccain uses the name patraeus as though he was part of mccain's campaign team

i welcome the announcement that the generals will not be voting in the election

i was dismayed at mccain's political gimmick and welcome the generals asserting their "non-patisanship" in this way

i regret that the generals will not participate in the election as citizens, but there were not many courteous ways for patraeus to escape the link that mccain worked so hard to establish

it is only recently that the military vote was braodly accepted

the right of the military voting has been as contentious as that of non-property owners, women and blacks

"In 1968, the Republican National Committee appointed absentee voting
chairmen in 45 states and the District of Columbia to register and mobilize the estimated 3.5
million military voters.89"

there is an account of the evolution of military votign as this link

http://www.vote.caltech.edu/media/documents/wps/vtp_wp53.pdf

CALTECH/MIT
VOTING TECHNOLOGY PROJECT
A multi-disciplinary, collaborative project of
the California Institute of Technology – Pasadena, California 91125 and
the Massachusetts Institute of Technology – Cambridge, Massachusetts 02139
MILITARY VOTING AND THE LAW: PROCEDURAL AND
TECHNOLOGICAL SOLUTIONS TO THE BALLOT TRANSIT PROBLEM

[Paul]

Col. Lang's anaylysis is correct. Odierno’s comment is interesting; maybe he has a guilty conscience for having served and carried out the illicit orders of a “king and his court”?

A case can be made that the Iraq invasion was semi-legitimate in that the country was still reeling and worried as a result of 9/11 and its possible aftermath. The administration’s pre-invasion posturing was swallowed by most, but not all, of the public. The passage of time showed that Bush et al were lying about Iraq. Since then Cheney and his helpers have infected the discourse with the notion of the unitary presidency which, according to them, gives Bush absolute and unconstitutional king-like power. The exercise of that power has spawned much illicit activity: torture, rendition, surveillance, etc. etc..

Woodward’s book (The War from Within) is instructive about the surge, its authors and role of the “commanders on the ground”. It seems that the surge was the brainchild of civilians from AEI (yes, Keane was/is a civilian when he inserted himself into the surge debate), Cheney, and the NSC led by Hadley. The commanders on the ground opposed it. Bush/Cheney reached into ranks and pulled Petraeus from under the nose of the JCS/Centcom to lead the action in Iraq. General Schoomaker was appalled and soon re-retired. Admiral Fallon was so pissed off he resigned. Perhaps Schoomaker and Fallon realized they were given illicit orders.

We’ve heard plenty about the surge. It was supposed to offer breathing room for Maliki to get his act together. The alleged “benchmarks” that would herald progress have come and gone, mostly unfulfilled. Petraeus doesn’t say if the surge is a success or a failure; “…the security situation is fragile” as he is wont to say. We are now watching State and DOD grovel with Maliki to stay beyond 31-December-2008.

What the hell is this all about? What was the real objective of the surge: satiating Bush’s ego, clamping down on gangsters, or solidifying and protecting American oil interests? Something smells. Iraq was never the central front on terrorism; the real front is Afghanistan and that is crumbling by the minute for lack of attention. The nation is in the dark about both wars, and the current economic situation may cause both to be cancelled for lack of funds.

The soldiers, marines, sailors and airmen and women carrying the load have been poorly served; they suffer in silence while the leadership dithers. The Iraq caper and the negligence of Afghanistan have to be deconstructed to get to the truth. Punishment must be swift and severe for the commander in chief and his willing acolytes for the foolishness and illegal conduct that has wrought death, destruction, injury and the squandering of treasure. Who will be held accountable; and McCain wants to continue?

There should be a law forbidding civilians like Keane from interfering with on-going military actions; General Casey was certainly not amused by that interloper. In my judgment, the surge and Keane’s lobbying insures that Iraq will be hand-delivered to Iran soon.

[paul]

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[TexLex]

> ALL enemies, foreign AND domestic

I am in considerable awe of the other posters on this thread, but it seems to be an appropriate time to ask about something that has puzzled and worried me in the past:

What, in the understanding of you who have taken the oath, constitutes a domestic enemy? What identifies a domestic enemy, and what were you who took the oath obliged to do about such a person?