[Grovenet] The law

[Phoenixacm at aol.com]

In theory that sounds nice, Walt.   It also sounds like you've never been in 
the military.   Do you imagine that service members carry a copy of their oath 
around with them and parse the syntax every time they are given an order?   
No, they don't.   The oath is taken once by an officer, and at every 
reinlistment (3 years? 4 years?) by an enlisted person.   

It's similar to the Hippocratic oath - a good general guideline for behavior 
but not something you will be prosecuted for violating.   Do you sue your 
doctor because you had side effects from the medication s/he gave you and the 
Hippocratic oath says, "First, do no harm?"   You may sue your doctor for 
malpractice, but not for violation of the Hippocratic oath.

The oath of service is not part of the UCMJ, it's part of the administrative 
regulations of the military.   Do you imagine that the entire military is run 
from the regulations in one five inch binder?   Oh, no.   There is a wall of 
binders that govern the running of the military.

The Geneva Convention does require that a service member not obey unlawfull 
orders.   The question then becomes:   What is a lawfull order?   If the 
Justice Dept states that waterboarding is lawfull, the average person has every 
reason to believe that it is lawfull.   If your conscience dictates otherwise, and 
you decline to obey based on your belief that the order is unlawfull, you can 
expect that you will be arrested and tried for disobediance of a direct 
order.   With the Justice Dept's memo on file, you will be found guilty and 
sentenced.   You have flushed your military career.   When you get out of jail, good 
luck finding a civilian job.

Personally, I'm all for civil disobediance.   What civilians fail to recogni
ze is that the consequences of civil disobedience are much more severe in the 
military than in civilian life.   Remember, the military is an environment 
where you can become a criminal simply by being late.   If you have been ordered 
to be on time and you aren't, that's disobedience of a direct order (a 
violation of the UCMJ).   Even worse, if you are late and the ship has already left, 
that's missing movement, another violation of the UCMJ.

I have very little patience for civilians who judge the behavior of 
individual military members ("They should obey their oath instead of their officers.") 
without a clue about military regulations, obligations and consequences.   
It's like saying waterboarding is illegal because it interferes with an 
individual's pursuit of happiness.   That's a nice idea, but completely irrelevant.   
Waterboarding should be illegal because it is torture and ethically 
unacceptable.

Jane B-P




> According to the letter of the UCMJ, even the Justice(?) Department's
> "legal opinion" is specious. The Oath of Service reads:  "... I will
> obey the orders of the President of the United States and the orders
> of the officers appointed over me, according to regulations and the
> Uniform Code of Military Justice..."
> Note, a service person is sworn to obey the orders of superiors
> "according to regulations and the Uniform code of Military Justice."
> That is, those orders must be given in accord with regulations and
> the UCMJ. The regulations and UCMJ specifically forbid torture.
> The UCMJ also contains provisions that allow any service person to
> refuse to obey an unlawful order.  This is risky for enlisted
> personnel and lower-ranking officers, of course, since you might be
> heavily punished or dishonorably discharged long before you were ever
> exonerated on appeal, and  the lower your rank. the  more heavily the
> odds of exoneration are stacked against you. But unlawful means
> unlawful, and unless the Justice Department can lean on the Pentagon
> to rewrite the regulations and the UCMJ, any military person has both
> the right and the obligation to disobey an unlawful order.
> Walt
> 
> >No, allegiance is not the issue.   I have seen the Uniform Code of Military
> >Justice, it is about five inches thick.   Needless to say, I have not read 
> it
> >(that is to say, I have not read all of it, just parts that were 
> immediately
> >relevant). 
> >
> >How many laws (of any kind, federal, state, etc.) would you feel confident 
> of
> >interpreting without the advice of legal counsel?   The Justice 
> Department's
> >memo is the advice of legal counsel.   The service members doing the
> >waterboarding would not have allegiance issues, but, of course, some
> >would have
> >conscience issues.
> >
> >Jane B-P
> 




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