... don't, however, justify Jacob Hornberger's complete failure to understand the difference between legal and illegal orders, or his strange idea that American volunteer citizen-soldiers would cheerfully obey all orders no matter how horrible.
However, let’s not forget that ever since 9/11, the Pentagon has considered the domestic United States to be part of the worldwide battleground in the war on terrorism, which has empowered the military to round up Americans as enemy eombatants and treat them accordingly, as they did with American citizen Jose Padilla — that is, with torture and the possibility of indefinite military detention.
Thus, given the right circumstances, such as another 9/11 attack, there is nothing to prevent the Pentagon from ordering the 3rd Infantry Division to sweep into cities and towns across America and round up enemy combatants. When confronted by critics with the Posse Comitatus Act, all the Pentagon would have to do in response is declare, “Ever since 9/11, we have possessed the power to treat terrorism as either an act of war or a crime. On authorization of the president, we have declared the people we are rounding up as enemy combatants, not criminals. Therefore, our actions are justified and constitutional. We are protecting our nation and our national security.”
And make no mistake about it: The troops would faithfully and loyally obey the orders of the president to effect such round-ups. While the troops take an oath to support and defend the Constitution, in their minds that is equivalent to obeying the orders of their commander in chief. That phenomenon was reflected by the willingness, even eagerness, to obey the president’s orders to invade and occupy Iraq despite the fact that there was no congressional declaration of war, as required by the Constitution. It has also been reflected by the willingness of the troops to establish the Pentagon’s prison camp at Guantanamo Bay for the precise purpose of avoiding the application of the Constitution and the Bill of Rights as well as interference by the federal courts that the Constitution established.
Let's parse that last paragraph a bit, shall we?
The troops would faithfully and loyally obey the orders of the president to effect such round-ups.
Assertion more than topic sentence; let's see how he fares in proving it.
While the troops take an oath to support and defend the Constitution, in their minds that is equivalent to obeying the orders of their commander in chief.
Er--no. As a matter of fact, all troops receive extensive training in disobeying illegal orders. That's led any number of officers, NCOs, and soldiers to question their use in the drug war and the border war. There is and there has to be a presumption of good faith among the troops when ordered to go to war, but Hornberger's two examples don't even come close to proving it....
That phenomenon was reflected by the willingness, even eagerness, to obey the president’s orders to invade and occupy Iraq despite the fact that there was no congressional declaration of war, as required by the Constitution.
What Hornberger doesn't mention here is a lot of relevant stuff. For one, nobody in Congress has ever made a case that the war was illegal in an impeachable sense, despite the protestations of bloggers and commentators that such should be done. Not even during the late Presidential campaign did either major Democratic candidate question the legality of the war--one of them admitted that they voted for the use of force, and the other simply contended that she sent us into "the wrong war," not an illegal one. At some point in the future there may well be a finding that the invasion and occupation were illegal--but you cannot set a standard for the military of disobeying orders that Congress and the Courts do not find to be illegal at the time.
As for that eagerness--Hornberger mistakes high morale and professionalism for juvenile eagerness.
In short: this sentence does not just fail to prove his point, it is materially wrong. Soldiers could have been (and, if memory serves, a few were) legally court-martialed for refusing orders to go to Iraq. That might have been a correct moral choice, but you don't find that many Mohammed Ali's in a given generation.
It has also been reflected by the willingness of the troops to establish the Pentagon’s prison camp at Guantanamo Bay for the precise purpose of avoiding the application of the Constitution and the Bill of Rights as well as interference by the federal courts that the Constitution established.
Unlike Iraq and Afghanistan, the Gitmo operation is run--and has been run--by a very tiny cadre of specialized troops, not more than .001% of the total military. Drawing conclusions about the whole from this small part is not just presumptuous, its downright intellectually dishonest.
Moreover, the existence of Gitmo has never been legally challenged by the Congress, either. Yes, specific technicalities about the court procedures and the international law violations of holding people there without basic legal rights have been raised in the Courts, but....
... Hornberger's argument is essentially the same as arguing that a prison guard should be held legally accountable for confining somebody who is released on appeal after it is discovered that the police violated his or her Miranda rights.
The guard is responsible for obeying the rules and provisions of the laws and regulations about how people should be confined, not deciding who should be confined.
All of which, I'd remind Mr. Hornberger, is a damn sight different that being sent, en masse, into American cities and towns with the mission of rounding people up.
I'm not saying that the troops would disobey such an order, because an intensive part of their training will be repeated sessions with JAG officers and others to explain to them why the military thinks such conduct is legal and constitutional.
The fact that the military will find it necessary to employ such instructional methods on its own troops is an indication that, given cold, the Pentagon is not sure those orders would be obeyed.
If the Pentagon gets its way (and Barack Obama does not nix this program as he should within a week of 20 January), the 3rd Infantry Division will be raised to a strength of 25,000 troops. These troops will be stationed stateside and exposed to the entire milieu of media and--more importantly--their family and friends and fellow American citizens for months and even possibly years before such an order would be given.
Unlike Jacob Hornberge, I have tremendous faith that the men and women of the 3rd Infantry Division will begin to struggle with the potential consequences of this new mission, and that there will be officers and NCOs who stand up and ask difficult questions, plant seeds of doubt about the Constitutionality and morality of that mission.
I believe that, if such an order were ever actually given (short of a complete descent into fascism), the General Officer who issued it would have profound misgivings about whether or not it would be followed.
I have significant confidence that there will be battalion commanders, brigade commanders, and possibly even a division commander with the good sense and moral fiber to say these words: "Sorry, sir. I resign or you can court martial me, but I will not carry out that order."
I believe that because I spent twenty-one years serving with men and women of that caliber.
Jacob Hornberger is wrong.