[Grovenet] The law

Thu Apr 3 11:30:17 PDT 2008

As a matter of fact, Jane, I WAS in the military.  And, despite the 
best efforts of the powers that be, military people do not live in a 
vacuum... they are generally well aware of the news and the law and 
ethical questions.
Does a Justice Department "legal opinion" trump established law? Not 
by a jugful. Established law can only be overturned by long debate, 
ending with a decision by the Supreme Court. The transient 
appointeees in the Justice Department... and this gang can't be any 
too transient for my tastes... can only hold sway until their 
decisions are legally challenged and negated.
Can an EM be "shafted for life" for his refusal to obey an unlawful 
order? Absolutely. But in a matter such as this, where serious 
ethical questions are involved, the brass is not likely to force the 
issue because any appeal, the higher up it goes, is likely to drag 
the entire question of torture into the limelight, along with the 
names of who gave what orders and when. A few lower-ranking officers 
are likely to be thrown to the wolves in consequence, but even that 
is bad for morale.
It comes down to a matter of individual courage and integrity. Some 
enlisted people did blow the whistle on Abu Grahib and other 
violations. Were they royally shafted in consequence? Was their 
punishment, if any, equal to the punishment of those poor enlisted 
slobs who went along enthusiastically with illegal orders, and were 
then scapegoated by the military as soon as the feces hit the fan? It 
would be interesting to know.
Walt

>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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