Army Officer Accuses Generals of 'Intellectual and Moral Failures'

[SWJED]

Thanks much for joining the SWJ and SWC.

Just put up LTC Yingling's SWC post to the blog.

Sean Meade over at Tom Barnett's blog was quick to pick it up.

Dave D.

[slapout9]

Hi Marc, according to the US Constitution Article 2, Section 2, the President is the Commander in Chief of the Armed forces. Sooooo how can you support the Constitution and not obey the President??

[Shek]

Hi Marc, according to the US Constitution Article 2, Section 2, the President is the Commander in Chief of the Armed forces. Sooooo how can you support the Constitution and not obey the President??

If the President ordered you to seize Congress. A highly unthinkable prospect these days, but one not so far fetched probably when the Constitution was being drafted, and illlustrative of the fact that the ultimate oath is to the document and not the person.

[marct]

Hi Slapout,

Hi Marc, according to the US Constitution Article 2, Section 2, the President is the Commander in Chief of the Armed forces. Sooooo how can you support the Constitution and not obey the President??

When is the President not the President? Answer: when s/he breaches the Constitution.

Let's just take the example of illegal orders: would it be lawful to obey the order of the President to commit an act that contravened the Constitution? A second point is that the President derives his/her authority from the Constitution and not vice versa, so sovereignty derives from the Constitution and not the President.

Marc

[Culpeper]

Hi Slapout,



Thanks for posting the link...



Hmmm, I would read this as obeying the orders of the President according to regulations and the Uniform Code of Military Justice. Given the way it is worded, I would read it as the constitution as the primary source of sovereignty while the President runs second limited by regulations, the UCMJ and, above all else, the Constitution.

Marc

Yes, and the UCMJ is a lot tougher than civilian law. For example:

933. ART. 133. CONDUCT UNBECOMING AN OFFICER AND A GENTLEMAN

Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

934. ART. 134. GENERAL ARTICLE
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

This is just A COUPLE OF ARTICLES. You guys starting to see the risk Mr. Yingling has taken upon himself?

Also, you left out the part about the President being the Commander-in-Chief of all the United States Armed Forces. The State of New Mexico has a New Mexico Defense Force. Its Commander-in-Chief is the Governor. You are an officer in this branch of service at the will of the Governor. Commander-in-Chief means exactly what it conveys. He can fire anyone he wants. Ask the ghost of Douglas MacArthur. "MacArthur was relieved of command by President Harry S Truman in April 1951 for insubordination and failure to follow Presidential directives."

FIRED!

[slapout9]

Hi Culpepper, I didn't leave out about the commander and chief??

Hi Shek, The way I feel right now about Congress I would not have a problem with it but I get your point.

Hi Marc, illegal orders, thats a good question. Here is my problem with the way everything has been worded it sounds as if the duties of the President are contained in a separate document as opposed to being part of the "higher standard" in this case the Constitution. I don't see them as being separated, they are all part of the same whole. That said I think the question of his issuing legal or illegal orders would have been solved in a large part if we had a debate "before a war" and if Congress issued a formal Declaration of War to include proper manning,money,equipment and so forth as was done in WW2.

[Culpeper]

Hi Culpepper, I didn't leave out about the commander and chief??

No problem. I was quoting Marc's response to you.

[marct]

Hi Slapout,

Hi Marc, illegal orders, thats a good question. Here is my problem with the way everything has been worded it sounds as if the duties of the President are contained in a separate document as opposed to being part of the "higher standard" in this case the Constitution. I don't see them as being separated, they are all part of the same whole.

I agree with you about them being part of the same document; basically an integral part of the whole as it were. Still and all, they are only a part: established by it.

That said I think the question of his issuing legal or illegal orders would have been solved in a large part if we had a debate "before a war" and if Congress issued a formal Declaration of War to include proper manning,money,equipment and so forth as was done in WW2.

Again, I agree with you. A lot of the problems could have been averted in that case.

Marc

[BScully]

The most common criticism of the piece is that I did not address the role of civilian authorities more explicitly. While I don't think a serving officer should publicly criticize civil authorities, there is a more substantive question here. Who does society hold responsible for the application of non-military instruments of power to achieve the aims of policy?

LTC,

Welcome and thanks for posting. As a civilian working in a non-DoD agency, I agree that this is a critical question. I would say there is a lot of blame to go around on this one. From various past administrations, to Congress, to the bureaucracy, and in some ways the general public themselves.

However, moving beyond the blame game, I would say that right now we need to identify who should be responsible for fixing the problem.

Rudy has his answer as has been discussed in another thread on this forum, which Newt apparently agrees with, despite the lack of details. NSPD-44 and the State Department's Office for the Coordinator of Reconstruction and Stabilization were the administration's attempt to wrestle with the issue. The NSC is now looking for a War Czar...with no luck. And I don't recall hearing anything out of Congress recently on this issue.

Personally, I don't think anything will change on the civilian side until both Congress and the President reach agreement on how to proceed. And more importantly, how to proceed in a serious manner. Hopefully Rudy's proposal starts a real dialogue on how to structure the federal government to ensure the civilian agencies fully support U.S. National Security (though I'm not holding my breath).

Thanks again,
Brian

[Dr Jack]

Although LTC Yingling’s article is entitled “A Failure of Generalship,” the remedies he proposes indicate that there are two institutions that have not fully lived up to their Constitutional obligations – the General Officer Corps and the United States Congress. According to the Constitution, there are significant war powers that reside solely within the Congress:

Article I, Section 8 (excerpts).

The Congress shall have Power … (to) provide for the common Defence…

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress…

LTC Yingling’s article does not criticize any particular General Officer, which could be a violation of Article 89 of the UCMJ, Disrespect toward a superior commissioned officer. He also does not offer any criticism of the senior civilian leadership or of Congress as an institution, which could be a violation of Article 88 of the UCMJ, Contempt toward officials. He has carefully walked the tightrope in his article.

What he has clearly done, IMHO, is to provide an argument for the General Officer Corps and Congress to work closer together in the execution of warfighting – in line with each respective group’s Constitutional obligations. The General Officer Corps should be more forthcoming with their professional opinions in consultation with Congress, and Congress should be more forthcoming in their oversight and engagement.

Even though I don’t fully agree with all of LTC Yingling’s recommendations, his article is consistent with the officer oath of office (my underline for emphasis):

Oath of Office (USC Title 5, Sec. 3331)
… I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

[Jimbo]

Slapout: Top oath is for enlisted soldiers, bottom oath for commisioned officers. Note that there are differences in the language.

Culpeper: having served in one organization you mentioned, and currently serving in another you reference, apples and oranges. So the difference between the governor of New Mexico as the state commander-in-chief (also C-in-C for the NG when not on federal duty) and the President of the US as Commander-In-Chief have different hire and fire powers that diffentiated in tehir roles by their respective constitutions. So your illustartion is somewhat off the mark.

[Culpeper]

Culpeper: having served in one organization you mentioned, and currently serving in another you reference, apples and oranges. So the difference between the governor of New Mexico as the state commander-in-chief (also C-in-C for the NG when not on federal duty) and the President of the US as Commander-In-Chief have different hire and fire powers that diffentiated in tehir roles by their respective constitutions. So your illustartion is somewhat off the mark.

Not to disagree with you but to illustrate why I'm somwhat off the mark, the New Mexico Defense Force is not the New Mexico National Guard and cannot be "federalized" by the President of the United States, which I know you are aware of but want to clarify. You provide no examples of the differences for a state governor as a commander-in-chief compared to the President as commander-in-chief. The governor can fire his personnel at his discretion and the President can fire his personnel at his discretion during times of armed conflict and by trial during peacetime. My example of using the New Mexico Defense Force and the Governor was an attempt to simplify the subject matter of the powers for a commander-in-chief.

Section 20-5-3 NMSA 1978. Composition; enlistment; appointment.

B. The officers of the state defense force shall be appointed by the governor and serve at his pleasure. They shall be chosen from the public and private leadership bases within local communities so as to best enable the community to efficiently muster and lead its people and protect its assets and well being.

Section 20-1-4 NMSA 1978. Governor to be commander-in-chief; enforcement of New Mexico Military Code.

A. The governor shall be the commander-in-chief of the military forces, except so much thereof as may be in the actual service of the United States; and may employ the military forces for the defense or relief of the state, the enforcement of its law, and the protection of life and property therein.

As for the President as Commander-in-Chief and dismissal of officers...

The President's power to dismiss an officer from the service, once unlimited, is today confined by statute in time of peace to dismissal ''in pursuance of the sentence of a general court-martial or in mitigation thereof.'' But the provision is not regarded by the Court as preventing the President from displacing an officer of the Army or Navy by appointing with the advice and consent of the Senate another person in his place. The President's power of dismissal in time of war Congress has never attempted to limit.

So, as you suggested there are some differences. But the ends to the mean is still at the discretion of the President. The loopholes are in place.

[slapout9]

Jimbo, Why are there two different Oaths? That just leads to the confusion. One wants to make it a point to obey the President, the other almost leaves a way out ??

[VinceC]

The separate oaths of enlistment and commissioning date back to the Revolutionary War.

http://www.army.mil/CMH/faq/oaths.htm

The wordings of the current oath of enlistment and oath for commissioned officers are as follows:

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that 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. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

"I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)

[selil]

Marct,

I was always taught that the power went this way...

people --> Constitution --> civilian leadership --> military/bureaucracy etc..

Some people try and say that the Constitution is the law of the land (restricts people and gives power to the government), but it is actually about restricting the rights of government and empowering people instead of government. Specifically the 9th amendment, and 10th amendment limit government power to only those given in the Constitution and put "The People" as the top dog.

Of course we could also say that the Officers oath has a direct violation of the Posse Commitatus act in it "I will support and defend the Constitution of the United States against all enemies, foreign or domestic".

[tequila]

The President can deploy U.S. armed forces in the case of domestic insurrection. Also Posse Comitatus is largely invalidated under the new Insurrection Act that was modified in by the 2007 Defense Authorization Bill.

[slapout9]

Per the constitution the President can commit federal troops in case of rebellion or INVASION by declaration of martial law.

[Jimbo]

One:

The Presidnet nominates officers for rank and congress confirms them in their rank. The President can "fire" commanders which means he can relieve them from command, but cannot fire them from their rank. Officers get relieved of command often enough, but they are not resduced in rank. The American Civil War and WWII provide ample examples of this.

Culpeper,

I know that the state defense forces and the NG are not the same, but when the ARNG/ANG is not mobilized they fall under the same structure with the governor serving as the C-in-C. The big difference for guard officers is that they get promoted by position and time. If there are no major coded slots available in your unit, then you have to go find a unit with a major slot available to get promoted. Furthermore, if you get moved out of that slot the governor can demote you. For example when I was training the 39th BCT out of Arkansas, there were E-6's who had been Captains, that lost their slots because they did not contrbute to the re-elect the governor campaign in 1990 or something like that. Furthermore, the guard officer shave to do federal recognition paperwork. This paperwork is an "agreement" between the U.S. Army/DoD/ Federal Government and the state/individual that certifies that the officer meets minimum federal requirements to hold their rank, that the governot appointed them in, when they are mobilized and placed under federal command. For example, when I was training the 39 BCT (Arkansas, again), the Brigade recon troop commander showed up at FT hood wearing railroad tracks. He never did his federal paperwork. When the unit left FT Hood he was wearing E-6 rank because that was the last level of training that he could prove. There are very different systems as far as appointment into rank and such.

[marct]

Hi Sam,

I was always taught that the power went this way...

people --> Constitution --> civilian leadership --> military/bureaucracy etc..

I've seen the same thing. Still, there is a difference between "power" and "legitimacy" in the sense of the legitimate social use of power. From my reading of it, your constitution legitimizes popular power and constrains its social forms and some of the procedures of its application. For example, you do not directly elect your President and it is quite possible that the one elected under the constitutional strictures actually loses the popular vote.

Some people try and say that the Constitution is the law of the land (restricts people and gives power to the government), but it is actually about restricting the rights of government and empowering people instead of government. Specifically the 9th amendment, and 10th amendment limit government power to only those given in the Constitution and put "The People" as the top dog.

Maybe - there have always been limits on the franchise which restricts who "The People" actually are. Also, I would argue,that you fought a civil war over this issue, and "The People" lost when the federal government was empowered to supersede individual states rights. I think that the tensions go back right to the founding of your country.

Of course we could also say that the Officers oath has a direct violation of the Posse Commitatus act in it "I will support and defend the Constitution of the United States against all enemies, foreign or domestic".

That's always been an interesting loophole to my mind, since it never really defines what "defend" means; is it political defense? Military defense? Media releases? Then again, the oaths go back before the posse commitatus act.

Marc

[wm]

The tension between states' rights and Federal power predates the Constitution. In fact, I seem to remember that The Federalist Papers were written to try to justify a Federal government at the expense of states' rights. Initially the US was run under the Articles of Confederation, not the Constitution.

I am no Constitutional law expert. But when it comes down to it, I always look at the Preamble as the source of understanding what the document is all about.
(We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States
of America.)
It is rather like a combination of the mission and the statement of the commander's intent in an Op Order. All of the rest of the Constitution's articles and amendments equate to the remainder of the execution paragraph, paragraphs 4 and 5 and and the various annexes and appendices. BTW, I think the Declaration of Independance serves as the situation (Paragraph 1 of the OpOrd). We might also choose to view the amendments to the Constitution as fragos after the intial order was issued.

In closing, I'd just like to say that the real issue, as far as I am concerned, has nothing to do with all this legalese. Instead, we need to consider what is the morally right thing to do. I applaud LTC Yingling for having the moral courage to publish his thoughts.