A midshipman asks: Before it is too late, should I refuse orders to continue the unconstitutional attack on Libya?

I certainly don’t endorse all the comments posted on this blog, nor even all the guest columns. Case in point: I disagree with the argument below, because I don’t think we want our corporals and lieutenants to try to be constitutional lawyers weighing each order they receive. (Or even our generals, like Douglas MacArthur, who got fired in part for following by his own reading of the Constitution.) I think people need to be taught that the issue of “legal orders” applies to war crimes and the like, not to whether one believes the executive branch has abided by the War Powers Act.

Yet I believe the column below is worth reading. If we try to crush such discussions, they will take place only furtively, and so become ill-informed.

By “A Midshipman”
Best Defense guest correspondent

I’m a Midshipman at the Naval Academy and have been talking with officers from the submarine that launched most of the American cruise missiles into Libya. We’ve had some interesting discussions about the legality of the operations at this point and whether the personnel still engaging the enemy there are breaking their oath to obey only legal orders. 

President Obama’s decision to avoid seeking Congress’s permission to continue America’s role in the Libyan conflict marks one more step in the long march toward a balance of power within the federal government that is more Napoleonic than democratic. Since the Vietnam War, President’s have not felt obliged to seek a Congressional declaration of war before committing American lives to conflicts abroad. Every sitting President since Nixon has ordered the military to battle without going through the channels prescribed in the Constitution.

In their decision to place the power to declare war with Congress, the writers of the constitution sought to limit the ability of the president to use military force as an autocrat. Unfortunately, the founding fathers had never seen an undeclared war and didn’t foresee the emergence of such a beast. We are left to deal with this oversight.

The conflict in Libya has now continued for more than 60 days without congressional approval. Not only is this unconstitutional, but it is in direct opposition to the War Powers Act, passed in the wake of the Vietnam War.

Officers of the United States Military take an oath to obey only lawful and constitutional orders and refuse all others. The servicemen and servicewomen who are currently fighting over Libya took that oath. It is their professional obligation and ethical duty to disobey their orders until constitutional and legal requirements are either changed or met.

The pressure that a refusal of orders would place on the President would be impossible to ignore. Even if the ensuing legal debate were inconclusive, no President would likely venture to take action which could result in a similar response. The constitutional balance of power would be restored because a professional precedent would have been established within the military, if not a broader legal one.

Congressman Abraham Lincoln once remarked, “Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.” By giving only Congress the power to declare war, the constitution takes out the personal element that was so often a cause of war in the era of Kings. While President Obama is certainly no oppressor, the trend that he is reinforcing opens up the possibility that the time will come where we will have to contend with a leader who is. 

The author is a third year student at the U.S. Naval Academy who has decided not to be identified more precisely.