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Z1911
09-08-2013, 08:46 PM
So, with all the recent publicity regarding whether or not firing missiles into Syria to "punish" Assad, I've noticed a few things:
- Apparently, firing missiles into another country constitutes an act of war
- Unless there is a clear, present, and imminent danger to the US or her citizens, the law requires a president to get approval from congress to initiate such acts of war
- While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.
- The president has also said that regardless of what congress does, he feels he has the authority to order the missile strikes

Here's my question:
Presuming congress does not grant him permission (likely), yet the president opts to order the missile strikes anyway (probable, but now an unlawful order), and given what LOAC (Laws of Armed Conflict) says regarding unlawful orders (and the following/carrying out thereof), at what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?

On the presumption that most of us on this forum have the reading and comprehension capability greater than a high school graduate, I would request any responses to steer away from the "Smarter people than you are making decisions", or "You can't make that determination because you're not a lawyer". IMHO, those kind of responses are at best, condescending, and at worst, insulting.

imnohero
09-08-2013, 09:10 PM
what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?


My opinion, the very person, Secretary of Defense or JCS on down, that believes it is an unlawful order. That said, it is a bit much to expect the "button pusher" to question the legality of orders that have been through multiple layers of command. I don't think it's a matter of "they are smarter"...but rather one of trust in leadership. As lower ranking, or lower organizations, we are supposed to be able to trust those in leadership to only issue lawful orders. Especially on a subject like bombing another country. Obviously, given history, we know that sometimes unlawful order are issued and followed. <sad>

As a complicating matter, before POTUS issues such and order, he has legal advisers review it. I do NOT want to go down the "water boarding" rabbit trail, but as an example the Bush Admin. had a ream of legal opinions about whether it was legal. Was the SrA prison guard at Gitmo supposed to buck the entire chain of command? Such a person, I would submit, doesn't have the power to stop systematic abuse. The best such an individual can do is say "I believe that order is unlawful and I will not obey"...probably at the risk of their career, if not prison time.

Gonzo432
09-08-2013, 09:27 PM
This is why DoD has so many lawyers.

Absinthe Anecdote
09-08-2013, 10:07 PM
Z1911

I don't think that Obama really wants to strike Syria and that is exactly why he punted to Congress. He can now blame the outcome on them regardless of what happens.

I don't think he will defy Congress on this because it gets him out of that terrible red-line statement.

technomage1
09-08-2013, 10:12 PM
Careful, this kind of thinking can get you fired.

Http://en.wikipedia.org/wiki/Harold_Hering

Bunch
09-08-2013, 11:32 PM
So, with all the recent publicity regarding whether or not firing missiles into Syria to "punish" Assad, I've noticed a few things:
- Apparently, firing missiles into another country constitutes an act of war
- Unless there is a clear, present, and imminent danger to the US or her citizens, the law requires a president to get approval from congress to initiate such acts of war
- While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.
- The president has also said that regardless of what congress does, he feels he has the authority to order the missile strikes

Here's my question:
Presuming congress does not grant him permission (likely), yet the president opts to order the missile strikes anyway (probable, but now an unlawful order), and given what LOAC (Laws of Armed Conflict) says regarding unlawful orders (and the following/carrying out thereof), at what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?

On the presumption that most of us on this forum have the reading and comprehension capability greater than a high school graduate, I would request any responses to steer away from the "Smarter people than you are making decisions", or "You can't make that determination because you're not a lawyer". IMHO, those kind of responses are at best, condescending, and at worst, insulting.


First, I dont think the President will authorize use of force without Congress approval. All the latest info that is coming out from the WH points towards that...


“The president, of course, has the authority to act, but it is neither his desire nor his intention to use that authority absent Congress backing him,” Deputy National Security Adviser Tony Blinken told NPR’s Steve Inskeep this morning.

Privately, other senior administration officials have been saying the same thing for days: Absent another major development in Syria, they find it inconceivable that the president would move forward with an attack if Congress fails to authorize it.

http://hotair.com/archives/2013/09/06/obama-advisor-he-wont-attack-syria-if-congress-votes-no/

If Obama decides to go it alone after Congress votes no I don't see how can a service member can cite LOAC in order to not follow an order. IMO LOAC regulates how armed conflict is conducted and doesn't deal with the legality of a particular conflict. If he decides to authorize force we still need to follow that order, if he order us to start killing Syrian civilians we should not follow that order because thats a violation of LOAC.

Thats not to say that a member can't claim conscientious objector status and be ask to be separated from service.

waveshaper2
09-09-2013, 02:33 AM
New Poll; Majority of Americans Approve of Sending Congress to Syria: http://www.theonion.com/articles/poll-majority-of-americans-approve-of-sending-cong,33752/

wxjumper
09-09-2013, 03:46 PM
- While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.


Actually, the President was right. He can send troops for up to 60 days without Congressional approval.

From the War Powers act:

The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

sandsjames
09-09-2013, 04:58 PM
Let's assume for the sake of argument, that Obama's order to launch a strike on Syria is illegal.

Then, the combatant commander orders his Naval commander to execute the strike...

The the Ship commander orders the strike....

Then some weapons officer pushes the button...

This is a good question...are all of the subsequent orders and the pushing of the button illegal, or only the first order given by the President? I'm voting for only the first order given is illegal...from the standpoint of the guy pushing the button, all he really knows is that his duly appointed commanding officer ordered him to attack a military target. I don't believe he has an obligation to analyze the political environment from which that order originated...in fact, to have people doing that would be quite detrimental. Maybe that order came from a classified session this guy was not privy to.

While the excuse, "I was only following orders" is generally not a defense to war crimes...unless the strike on it's face is a war crime, i.e. a strike on a school or hospital, let's say, then I think the button pusher has a legitimate defense...it's not really his place or duty to figure out whether the POTUS is acting within constitutional authority. I don't think it's in our best interests to have every foot soldier questioning whether or not the Pres. has the authority to order the attack.

It's tough. It's too bad (sort of) that PYB isn't around to give his thoughts on this. On one hand, should we all be fully educated on the Constitution when it comes to this sort of thing and, if yes, then should we make the decision at our level? On the other hand, we have to, at some point, trust the officers giving us the orders and assume that by the time it gets down from the CiC through the chain of command that we are good to go. It's sort of the same situation as Libya. After the 60 days we should have all realized that it was no longer a legal action. But, at that point, what move do we make?

Rusty Jones
09-09-2013, 05:26 PM
It's tough. It's too bad (sort of) that PYB isn't around to give his thoughts on this. On one hand, should we all be fully educated on the Constitution when it comes to this sort of thing and, if yes, then should we make the decision at our level? On the other hand, we have to, at some point, trust the officers giving us the orders and assume that by the time it gets down from the CiC through the chain of command that we are good to go. It's sort of the same situation as Libya. After the 60 days we should have all realized that it was no longer a legal action. But, at that point, what move do we make?

Considering the fact that the US Supreme Court's interpretation of the Constitution is the only one that matters, there's really nothing you can do.

As a military member, you should obey any order that does not put you in violation of the UCMJ. Many people have taken it upon themselves and refused to deploy to Iraq and/or Afghanistan, and where are they now? Sitting in prison.

OtisRNeedleman
09-09-2013, 06:27 PM
Careful, this kind of thinking can get you fired.

Http://en.wikipedia.org/wiki/Harold_Hering

My first thought. These days, with the media and Congress being the way they are, someone asking a similar question might NOT get squashed like a bug.

20+Years
09-09-2013, 06:46 PM
Its not for us to interpret if the conflict itself is legal or not. If that decision was left to the soldier, sailor, airmen level, we'd be screwed.

Class5Kayaker
09-09-2013, 10:08 PM
Your question reminds me of ABC's short-lived series Last Resort, about a nuclear sub crew that refuses to follow orders (later revelaed to be invalid). You could compare it to other movies in the past like Crimson Tide, Wargames, etc.

http://spinoff.comicbookresources.com/wp-content/uploads/2012/09/last-resort-promo2-570x320.jpg

I think anyone under POTUS shouldn't be held accountable for following an "unlawful" order in the scenario the OP has described though. The LOAC rules are meant to cover the situations where a squad leader tells his soldiers to open fire on an Afghani elementary school, not firing tomahawk missles at a Syrian military target.

Pullinteeth
09-10-2013, 01:24 AM
You would think wrong... Just askKarl Dönitz... He committed no war crimes but was found guilty of war crimes because he followed what the U.S. and U.K. recognized as the SOP for naval warfare.

imnohero
09-10-2013, 01:36 AM
Its not for us to interpret if the conflict itself is legal or not.

I'm going to have to respectfully disagree with this. It is up to everyone to interpret the legality of both order and the conflict. It must be done in an educated rational way, but it must be done.

But the truth is, most of us aren't up to the task. Even if we had the legal education background, we don't have access to ALL the information necessary to make an informed decision. This why we rely on (read: trust) our leaders far up the chain of command, including POTUS, to make the correct legal decisions. That's why we all take oaths, that include words like protect, loyalty, obey, fidelity, truth, allegiance, etc.

The biggest problem in the last 30 years, is that those in D.C. have forgotten that they owe the people they send to die, as much loyalty and fidelity, as we owe them. You want to talk about being screwed, start there.

Bunch
09-10-2013, 04:39 AM
I'm going to have to respectfully disagree with this. It is up to everyone to interpret the legality of both order and the conflict. It must be done in an educated rational way, but it must be done.

But it has been done over the past 30 years and the end result is service members going to jail almost everytime they have tried this. The only recent exception to this was the case of Army 1st Lt Ehren Watada who question the legality of the US war in Iraq using almost the same arguement theorized here. His first court martial ended on a mistrial, attempts at a second court martial were put to stop when Obama took office in 2008 and was discharged by the Army in 2009. But that case failed to set a precedent given the fact that one other soldier has received jail time for refusing to deploy to Iraq that case went to court in 2009.


But the truth is, most of us aren't up to the task. Even if we had the legal education background, we don't have access to ALL the information necessary to make an informed decision. This why we rely on (read: trust) our leaders far up the chain of command, including POTUS, to make the correct legal decisions. That's why we all take oaths, that include words like protect, loyalty, obey, fidelity, truth, allegiance, etc.

In the Watada case and the most recent ones that tried to justify not deploying to Iraq because of personal objections to it they had access to some of the best lawyers that ACLU and other entities like it could provide and they still did jail time.


The biggest problem in the last 30 years, is that those in D.C. have forgotten that they owe the people they send to die, as much loyalty and fidelity, as we owe them. You want to talk about being screwed, start there.
I think the onus resides on the court. They have resisted time and time again to take up cases that deal with the War Powers Act and the last time a court took up a case involving the War Powers Act it was so summarily dismissed that I think it will close the door for Congress to assert their power of the Act through court for good.

Ehren Watada case :http://en.m.wikipedia.org/wiki/Ehren_Watada

Soldier sentenced for refusing to deploy to Iraq (2009):http://couragetoresist.org/17-victor-agosto/737-afghanistan-resister-victor-agosto-gets-only-30-days-jail.html

Clinton War Powers Upheld: http://www.washingtonpost.com/wp-srv/national/daily/june99/dismiss09.htm

Clinton, Kosovo and the final destruction of the War Powers Resolution: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1474&context=wmlr

20+Years
09-10-2013, 03:16 PM
I'm going to have to respectfully disagree with this. It is up to everyone to interpret the legality of both order and the conflict. It must be done in an educated rational way, but it must be done.

But the truth is, most of us aren't up to the task. Even if we had the legal education background, we don't have access to ALL the information necessary to make an informed decision. This why we rely on (read: trust) our leaders far up the chain of command, including POTUS, to make the correct legal decisions. That's why we all take oaths, that include words like protect, loyalty, obey, fidelity, truth, allegiance, etc.

The biggest problem in the last 30 years, is that those in D.C. have forgotten that they owe the people they send to die, as much loyalty and fidelity, as we owe them. You want to talk about being screwed, start there.


And yet I would disagree with your disagreement. To allow each service member to decide for themselves if a conflict is legal would cause anarchy in the ranks. Personal agendas and motivations would obviously influence each persons answer. Years of training as a team to complete a desired mission would be washed away by each persons opinion of legality.

Chief Bosun
09-10-2013, 03:51 PM
If we go down this slope, then anyone in the military could refuse to obey an order they believed was illegal and get off without punishment. That means someone else like Private Bradley Manning could say he thought that in the context of a given situation the order to not disclose classified information was illegal and he could shoot his cakehole off about it to anyone he pleased that would listen.

USAF-Controller
09-10-2013, 04:02 PM
If the President decided to launch missile strikes without asking Congress, he is legally within his right to do so. Why are we even talking about this?

imnohero
09-10-2013, 04:04 PM
I don't recall saying "no punishment"...of course your going to get punished, whether the conflict or order is legal or not. It's always going to be looked at as "failure to obey" by the chain of command. And I would argue they count on fear of punishment/jail/discharge as an effective tool to keep people from questioning orders.

That doesn't change the moral responsibility of the individual.

UncaRastus
09-10-2013, 04:07 PM
I believe that if I were ordered to do something blatantly unconstitutional, that I would refuse the orders at the first statement of that order. With the war powers act on the President's behalf, I would have found it hard to refute going on a police action in a foriegn country.

Having said that, if I were ordered to disarm American citizens in the USA, or was ordered to take quarters in a citizen's house, the first would be against the 2nd amendment, while in the second case, that would abrogate the Posse Commitatus Act.

I state the 2nd amendment because the Supreme Court found that the American people (minus felons) do have the right to bear arms. No matter whether you agree with that decision or not, that IS the law of the land.

Of course, states may decide differently.

oldgrndr@
09-10-2013, 06:06 PM
I believe that if I were ordered to do something blatantly unconstitutional, that I would refuse the orders at the first statement of that order. With the war powers act on the President's behalf, I would have found it hard to refute going on a police action in a foriegn country.

Having said that, if I were ordered to disarm American citizens in the USA, or was ordered to take quarters in a citizen's house, the first would be against the 2nd amendment, while in the second case, that would abrogate the Posse Commitatus Act.

I state the 2nd amendment because the Supreme Court found that the American people (minus felons) do have the right to bear arms. No matter whether you agree with that decision or not, that IS the law of the land.

Of course, states may decide differently.

Taking quarters is also addressed in the 3rd amendment, depending on the circumstances.
Although many states have been forcing thier will on the people to decide differently the 9th amendment lends a different light. Although the 2nd specifically enumerates the right of the people, even were it not the 9th guides that we still have the right of arms. And the 10th helps a little in that it can also argue in favor of the people.

UncaRastus
09-10-2013, 10:47 PM
Well said, oldgrndr@!