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Yesterday the Los Angeles Times published an op-ed entitled “What Will the Military Do If Trump Gives Unconstitutional Orders?” The article was written by a West Point graduate named ML Cavanaugh, who recently retired from the military. He is the co-founder of an organization named the War Institute at West Point.
In his article, Cavanaugh reminds of the old saw that every U.S. soldier takes an oath to support and defend the Constitution. He asks: “Given Donald Trump’s threats to use the military against his own enemies, some wonder with dread: What will the military do if the president gives unconstitutional orders? While nobody would ever want such a challenge, I am fully confident that Americans in uniform will honor the highest duty we swore, which is to the Constitution.”
Cavanaugh is wrong. In a crisis, every U.S. soldier will obey the orders of his commander-in-chief, even if unconstitutional. That’s because in a crisis, no soldier is going to be taking any time to examine whether the orders he is issued are constitutional or not. Every soldier will take the position that it is not his responsibility to determine whether an order is constitutional or not. After all, in his mind he is a soldier, not a lawyer. Equally important, when a soldier obeys the president’s orders, in his mind he is supporting and defending the Constitution. That’s because the president has been duly elected under the Constitution. Thus, whether Cavanaugh wants to admit it or not, despite the oath he takes the soldier’s loyalty is actually to the president, not the Constitution.
The best proof of this phenomena is Cavanaugh himself. In the first sentence of his biography on his personal website, he states, with obvious pride, that he “earned two Bronze Star Medals and a Combat Action Badge for his time in the Iraq War.”
The Iraq War? Isn’t that the war that was waged without the congressional declaration of war required by the Constitution? Every soldier knows — or should know — that the Constitution requires a congressional declaration of war before the president can wage war against another nation. Given such, the president’s order to invade Iraq was clearly unconstitutional.
Yet, what happened with Cavanaugh — and, for that matter, every other soldier — who was ordered to invade Iraq? Every one of them dutifully followed the unconstitutional order of his commander in chief. And in their minds, they were supporting and defending the Constitution because the president was duly elected by the people under the Constitution.
Moreover, keep in mind that Iraq never attacked the United States or even threatened to do so. It is undisputed that the president and his military were the aggressors in this war. A war of aggression is an illegal act under the terms of the Nuremberg War Crimes Tribunal. It’s a virtual certainty that every West Pointer is taught the terms set forth at Nuremberg. Yet, not one single soldier disobeyed the president’s illegal order to invade and wage war against Iraq.
What Cavanaugh fails to comprehend is that in a “crisis” environment, soldiers don’t sit around studying their their navels or the Constitution. Just like the “emergency crisis” after the 9/11 terrorist attacks, they immediately follow orders. They do whatever they are ordered to do to protect “national security” and, in their minds, they are behaving as “patriots.”
This is precisely why our American ancestors hated standing armies, which was the term they used for what we call a national-security state — i.e., a vast, permanent, all-powerful military-intelligence establishment whose ostensible job is to keep us “safe.” Our ancestors understood clearly what the American people today do not understand — that the greatest threat to the lives, liberty, and property of the people lies not with with some external threat. It lies with a nation’s very own standing army or national-security establishment, which will loyally, faithfully, and blindly obey orders of the president, especially if there is a “crisis” involving threats to “national security.”
Finally, I would be remiss if I failed to note the courage of Lt. Ehren Watada, who was, not surprisingly, treated as a criminal and a “bad guy” for refusing to obey the unconstitutional and illegal order of the president to deploy to Iraq in 2006.
