The Troops Don’t Support the Constitution
by Jacob G. Hornberger, October 10, 2005

Every U.S. soldier takes an express and solemn oath to “support and defend the Constitution.” That oath, however, is a sham because the troops do not support or defend the Constitution. Instead, when it comes to war the troops follow another oath they take — to obey the orders of the president, and they do this without regard to whether such orders violate the Constitution.

A textbook example involves President Bush’s war on Iraq.

The Constitution prohibits the president from waging war without first securing a declaration of war from Congress. By waging war on Iraq without the constitutionally required congressional declaration of war, the president violated the Constitution.

Some people pooh-pooh the violation, perceiving the Constitution as simply a technical document that can be violated whenever the president feels that “national security” — or even the welfare of foreigners — necessitates it.

Some also make the claim that when Congress delegated its power to declare war on Iraq to the president (on the eve of the 2002 congressional elections), that delegation served as an adequate substitute for an actual declaration of war on Iraq.

They are wrong.

The Constitution is the supreme law of the land that we the people of the United States have imposed on our federal officials. Like it or not, U.S. officials are supposed to comply with its restrictions on power. If U.S. officials don’t like a particular constitutional provision or if they feel that it is outdated, the proper remedy is to seek a constitutional amendment, not ignore the provision.

Moreover, the Supreme Court, which is the final arbiter of constitutional interpretation under our system of government, has long held that no branch of the federal government can lawfully delegate its constitutional powers to another branch of government. Only the Congress, not the president, is authorized to declare war, and without that declaration the president cannot lawfully wage war on another nation.

We should bear in mind that had the president complied with the declaration-of-war requirement, the Congress might well have discovered in the process that the president’s WMD claims were defective. The Congress might also have concluded that invading a sovereign and independent country for the purpose of “spreading democracy” — a war in which tens of thousands of innocent people would be killed and maimed — could not be justified under moral principles.

“But we can’t refuse orders of the president. He’s our commander in chief,” say the troops. “It’s not our job to determine what is constitutional or not. We deployed to Iraq, like it or not, because the president ordered us to do so.”

Setting aside the moral implications of that position, doesn’t that mindset reflect that the oath that the troops take to support and defend the Constitution is in fact a sham? The troops know — or should know — that the Constitution prohibits the president from waging war without a congressional declaration of war. They also know that the Congress never declared war on Iraq. Nevertheless, they obeyed the president’s orders to attack Iraq.

The president’s war on Iraq reflects why our nation’s Founding Fathers opposed standing armies. Members of a professional army, who have vowed to obey the orders of the president, are unlikely to say no when the president orders them to attack another country.

On the other hand, a nation that relies instead on well-trained citizens (i.e., citizen-soldiers) to defend itself from a foreign attack would stand in a different position. Citizen-soldiers, while willing and prepared to rally to the defense of their own country in the event of an invasion, would be much less likely to answer the president’s call to leave their families and give up their jobs to attack a country thousands of miles away from American shores.

Isn’t it ironic that, even as the troops waging war in Iraq exhort the American people to support them, the troops, by invading Iraq without the constitutionally required congressional declaration of war, have failed to support the Constitution?

http://www.fff.org/comment/com0510c.asp

The troops are caught between a rock and a hard place. The War in Iraq is surrounded by endless contraversy, including questions of a constitutional nature. You're going thousands of miles away from home to fight a war you can't win, for people who could care less about you and what you're trying to accomplish, over an issue that was found to have been nonexistent. So, what are the troops supposed to do? It simply isn't in the cards to launch a military coup against the federal government. The people wouldn't want it and you would never successfully organize such a thing in today's world. The only decision is whether to obey orders or not. Not doing so isn't an easy thing to deal with, but I admire those who stand up for their beliefs and do so. I can't condemn those who do not.

http://www.thenation.com/doc/20060717/brechersmith

That is a story that covers the experience of a soldier who has refused to fight in Iraq for that purpose. I am not saying one way or another where I stand on this particular issue, because, to be honest, I am not sure where exactly I stand since I have not done thorough research of LT Watanda's case. But it gives some insight as to what a person who makes this decision will have to endure.

It appears from a Wiki article on this individual tha the trial ended with a mistrial and there was an injunction to not allow another trial. This was current as of November. Wiki isn't a valid source in my opinion, but I am sure you can research the links for the sources if you are truly interested in what has happened. http://en.wikipedia.org/wiki/Ehren_Watada

It is inappropriate to assault  a volunteer force like this.  The argument over the legality of the war with the hindsight that not only was our nation's intelligence wrong, but that of the entire world community turned out to be incorrect can not be forgotten.  You should also not forget that the nations that pushed the hardest to  delay the start of the war (France, Russia, and China) were also the nations that had been illegally selling Hussein weapons during the imposed ban by the UN.  They had their own reasons to avoid the start of the war, namely their blatant disregard of international law.  That being said, in its current state, we are winning in Iraq.   Politically the Iraqis must do what is best for them.  The way "out" of this war is the path to victory.  The agreement we should reach with Iraq is to begin to bring the great majority of our troops home as the Iraqis build up their forces.  We can not simply leave after the effect of the war on the Iraqi people.  At the bare minimum at this point it is our responsibility to make sure that Iraqis have a strong security force capable of taking care of themselves.  For every troop the Iraqis add to their force, we bring one home.  We can continue to provide logistical and tactical forces upon the request of the Iraqis themselves.  It's clear by now that we have won the military operations and simply need to help the Iraqi Armed Forces develop.  If the Iraqi parliament learned from our Congress, we shouldn't be holding our breath for them to reach the types of political developments that our own government (i.e Democrats) expect from them.  Help them protect themselves at this point.  We routed the Al Qaeda in Iraq organization by working with the Sunnis and the Iraqi government has begun taking them into the fold as they themselves have begun to rout the Mahdi army.  Morally, this is the equivlanet of helping a home  rebuild itself after an errant drug raid.  Granted it's much deeper than that and based on all available information at the time, and with Congress's blessing, this war started.  We should not forget that.  We should also recognize that when a war is launched, we should not simply bail out and leave the Iraqis in complete ruin, through our hands up and say, "our bad."  Should the war be drawn to a conclusion based on what the Iraqis themselves desire and keeping in mind that we have achieved our military objectives?  Yes.  However, there is a proper and moral way to do this.   We should also downsize our embassy there as we bring troops home and the Iraqi Army's forces grow in number.