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An Example Has Been Made: Pour Encourager les Autres
The now-fired Secretary of the Navy apparently sought to provide cover to senior NCIS, legal weasels, and an admiral over the SEAL teams, as they sought to slap the Commander in Chief in the face and cover up their own alleged criminal wrongdoing (now subject of another IG investigation). No military officer, of any rank, would tolerate such gross insubordination from a subordinate: “Sir, you didn’t put in a written order, so I didn’t have to do it.” Oh, but it was just a tweet, and we don’t like his tweets, and besides… Nonsense! In the words of Justice Scalia: “pure applesauce!”
The first two-star general for whom I directly worked gave me a great lesson in followership. He called attention to the way a staff training team reacted to him. The staff training team existed to exercise and develop staff in support of their commanders. The moment the commanding general opened his mouth, team members all had their notebooks out, pens poised and proceeded to write down every single word he said.
The general explained that that showed the doctrinally correct view of general officers’ words. All the words were to be treated as important guidance to their staff. The trainers now had the general’s words and were checking everything the staff did to see if it conformed, to see if the general’s staff was operating competently and correctly in support of the general.
In other contexts, the general coached me to read into phases and topics raised or not, to see if higher headquarters were reinforcing existing guidance (repetition) or changing direction or emphasis. I was expected to report back promptly every time he sent me out as his deputy, his empowered representative. I was expected to inform him and the senior staff, already anticipating possible shifts in our planning and operations, so that we would be a leading command rather than being dictated to in very small words and short sentences in large bold print.
Conservatives, even TruCons, used to have a basic notion of the inviolable subordination of our military to civilian authority, in the person of the Commander in Chief, the president of the United States. Military officers, way back at the end of the Cold War, when we were wondering what would become of all that fancy equipment, all those formations, all those senior positions, even wrote to themselves about the dangerous lure of military and civilian faith in the military over all other institutions. I strongly suggest you read the then influential, award-winning 1992 article “The Origins of the American Military Coup of 2012.”*
Never mind that the author, an Air Force officer, naturally made the Army the center of the villainy; the alternate history, the cautionary tale, still bears consideration today. Duke Law School thought it important enough to republish in 2010, the second year of President Obama’s presidency. Then we were treated to January 2017 musings by one of Obama’s defense officials that the senior officers who had risen to the top under Obama would conduct a coup against the brand new president, whose election had shocked the Washington elite.
3 Ways to Get Rid of President Trump Before 2020
BY ROSA BROOKS | JANUARY 30, 2017, 9:26 AM
…The fourth possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders.
But Trump isn’t subtle or sophisticated: He sets policy through rants and late-night tweets, not through quiet hints to aides and lawyers. He’s thin-skinned, erratic, and unconstrained — and his unexpected, self-indulgent pronouncements are reportedly sending shivers through even his closest aides.
What would top U.S. military leaders do if given an order that struck them as not merely ill-advised, but dangerously unhinged? An order that wasn’t along the lines of “Prepare a plan to invade Iraq if Congress authorizes it based on questionable intelligence,” but “Prepare to invade Mexico tomorrow!” or “Start rounding up Muslim Americans and sending them to Guantánamo!” or “I’m going to teach China a lesson — with nukes!”
It’s impossible to say, of course. The prospect of American military leaders responding to a presidential order with open defiance is frightening — but so, too, is the prospect of military obedience to an insane order. After all, military officers swear to protect and defend the Constitution of the United States, not the president. For the first time in my life, I can imagine plausible scenarios in which senior military officials might simply tell the president: “No, sir. We’re not doing that,” to thunderous applause from the New York Times editorial board.
We all know perfectly well that “insane” is a standard leftist slur, now embraced by the left’s TruCon lapdogs. We all understand that the whole point was to treat the pesky Electoral College results as illegitimate, to use the full power of the Deep State, including the top state-side military headquarters to incapacitate and remove the Deplorables’ president, treating the man as the symbol of all these weasels hate about us.
Rosa Brooks’ biography is especially relevant and telling now. She wrote those words in January of 2017 to encourage the people left in place in the Pentagon, where she had been the top lawyer for the bureaucrat in charge of policy:
Rosa Brooks is a Senior Fellow at the New America Foundation, a columnist for Foreign Policy, and a law professor at Georgetown University. She previously worked at the Pentagon as Counselor to the Under Secretary of Defense for Policy; in 2011, she was awarded the Secretary of Defense Medal for Outstanding Public Service. Brooks has also served as a senior advisor at the US Department of State, a consultant for Human Rights Watch, and a weekly opinion columnist for the Los Angeles Times.
Read the Wikipedia entry for Rosa Brooks, intended to be positive, for the rest of the story, the more extreme activities, and associations. Understand that she is outside but still helping influence the government. Note that Georgetown is renowned for producing federal “civil servants” with career and political ambitions. Secretary of Defense Mark Esper, a West Point graduate, infantry officer, and combat veteran who served 10 years on active duty and then completed his military career in National Guard and Reserve service, retiring as a lieutenant colonel, has now fired the first shot back from the top of the Department of Defense, in firing the Secretary of the Navy.
Esper said he had previously advocated for allowing the Navy review to go forward. But when [President] Trump gave him a “verbal instruction” to stop the process, he did so.
Esper did not say explicitly that he disagreed with Trump’s order.
Once Trump gave the order, Esper said he responded, “Roger. I got it.”
He has made clear that further insubordination and coup-like behavior will be punished, will be career-ending. All rational Americans should applaud this action and this message.
* Regrettably, and without explanation, the U.S. Army War College has shoved most of the back issues of Parameters down the memory hole. For many years, you could easily access the back issues in PDF format. Now you can only reach back through 2012. These were important articles, documenting what our Army officer corps was thinking at the time. They were all online, all searchable, no new work needed. Gone, apparently.
Published in Military
Why did the Navy hide the fact that the two deck officers on the USS McCain were females and not speaking to each other as they drove the ship into a collision with a civilian ship, killing seven sailors ? The male captain and admiral were punished.
Why was Kara Hultgren pushed through pilot training and given her wings in spite of repeated failures?
https://en.wikipedia.org/wiki/Kara_Hultgreen
An Accuracy in Media reports others quoting CDR Tom Sobiek, commanding officer of Fighter Squadron VF-124, as saying of the four female pilots in his squadron, “The women are going to graduate regardless of how they performed” and “the Navy was in a race with the Air Force to get the first female fighter pilot”. It quotes Sobiek denying making any such statement. “That is a flat **** lie,” he said. “And whoever told you that, if they were under oath, should be taken to task.
The truth has to be surrounded by a bodyguard of lies.
Clifford, this does not seem to be a helpful answer.
I’ve never served in the military, and have very limited knowledge of military law, mostly from some CLE courses about 8-10 years ago, and a law school class over 20 years ago.
I would expect that military law, like civil and criminal law, is quite complicated. I wouldn’t expect an E-1 to know everything in the UCMJ. I wouldn’t be surprised if the UCMJ is so lengthy and complex that no one knows, or fully understands, everything in it.
There may be some instances in which an order is obviously unlawful, but my expectation is that in most circumstances, this is not clear at all. This leads to the really difficult question — who decides whether an order is unlawful? Each subordinate, individually?
To follow up on an example in the OP, what if the President did order an invasion of Mexico tomorrow? Would that be an unlawful order?
Yeah, Cliffy gives an unsatisfactory answer here, like all Army officers. ;-)
I was a newly minted E-1 once, fresh out of OSUT (similar to basic, but cooler because #tanks), and I can tell you: I had no idea how to tell if an order was lawful or not. I would like to think that if someone told me to shoot an unarmed civilian I’d have said no. But I don’t know that I would have.
At the same time…Trump’s orders were not unlawful. He said “Don’t hold that Trident Review Board.”
Actually it’s not. The entire UCMJ is online. There are only 58 articles (77 through 134) which are known as the punitive articles and stand as grounds for courts martial. Most are pretty straight forward. Only Article 133, “Conduct Unbecoming” is vague enough to allow vindictive prosecution. A lot of things covered under 133 would not result in career ending punishment in civilian life.
The amazing thing about the Gallagher case is how it was bungled from one end of the spectrum to the other. Everyone involved, from NCIS to the JAGs to RADM Collin Green has FUBARed this from the get-go.
Green comes from a prominent Democratic family in Maryland and has been on a crusade to change SEAL “culture” for a long time. I suspect he wasn’t real popular among his fellow SEALs but that’s only conjecture on my part. I know he’s purged other SEAL leaders he felt were not in line with his thinking.
Kurt Schlichter nailed this one to the wall.
My military experience is almost as rudimentary as it gets: two years of Junior ROTC in high school. I knew that the soldier/sailor is on the hook to obey all lawful orders and disobey all unlawful ones about halfway through the first semester. The standard for determining the difference was the “reasonable person” standard.
That is a lot of responsibility to heap on some 18 year old who might not yet need to shave every morning. It is a profession fraught with peril: that’s why they issue you weapons.
EJ, I very much doubt that it is simple. “Only” 58 articles?
Here is a link to the pdf of the Manual for Courts-Martial United States (2019 Edition). A simple manual, just 772 pages. 772 pages!
It includes the mere 58 articles of the UCMJ, in section IV, with explanations. Just 151 pages of statutory text and explanation.
Quick — what is the definition of “rape of a child” under the UCMJ? How does it differ from “sexual assault of a child” and “sexual abuse of a child”? What is the age of consent? (This is in Article 120b, page IV-91 et seq of the pdf linked above.)
What are the elements of malingering (Art. 83)? Breach of medical quarantine (Art. 84)? What is the difference between desertion (Art. 85) and absence without leave (Art. 86)?
How about jumping from vessel into the water (Art. 87(b))? This is prohibited if it is done “wrongfully and intentionally.” What would make it “wrongful”?
What about use of contemptuous words against the President, the Vice President, the Secretary of Defense, Congress, the Supreme Court, a Governor, or the National Security Advisor? (Article 88.) Does this apply to all military personnel, or just commissioned officers, or commissioned and noncommissioned officers?
Do you think that more than 1% of our military personnel would know that I inaccurately inserted protection for the Supreme Court and the National Security Advisor into the “contempt toward officials” statute? Or that this statute — which applies only to commissioned officers, by the way — also applies to contemptuous words against the Secretary of a military department, the Secretary of Homeland Security, and the legislature of any State, Commonwealth, or possession?
Or that the prohibition on the use of contemptuous words against the Governor or legislature of a State, Commonwealth, or possession only applies to the jurisdiction in which the commissioned officer is on duty or present? So it’s OK to be contemptuous of the governor of California while you are in Arizona, but not while you are in California.
This is pretty fun. As a lawyer, I find enough complexity in the UCMJ, even in a brief review, to give rise to years or even decades of study and litigation.
[Cont’d]
On the issue that I raised in #32 above, the question of who decides whether an order is lawful is governed, at least in part, by UCMJ Art. 90, which imposes criminal punishment on anyone “who willfully disobeys a lawful command of that person’s superior commissioned officer.” In time of war, this can be punished by death.
Here are excerpts from the explanatory notes:
Notice that this implies that an order that directs the commission of a crime is not the only type of order that would be “patently illegal.”
So when faced with a potentially unlawful order, the subordinate acts at his peril, and the decision regarding lawfulness will be made by the military judge, after the fact (not the court martial board, I guess). Remember that if the subordinate obeys an unlawful order, he can be punished; but if he disobeys a lawful order, he can also be punished — in time of war, by death.
What about the content of the order? Well:
Clear as mud to everybody?
[Cont’d]
Actually, that last bit is quite clear. If you’re in another country and your CO ordered you steal from the locals that is an illegal order. If you need something in pursuit of a military objective, for example “commandeering” fuel from the locals, may be considered a legal order.
There’s a lot about war that’s messy. Trying to lawyer it is just stupid. And you can’t fix stupid.
Then there are the catch-alls in the UCMJ, which are a marvel of vagueness.
Art. 133 says:
The explanation is about a page, and only gives examples. These include dishonorable failure to pay a debt (which would be OK if honorable, apparently); cheating on an exam; using insulting or defamatory language to or about another officer; being drunk and disorderly in public; public association with known prostitutes (I guess private association is OK, or at least not listed as an example); failing without good cause to support one’s family; and a generic “committing or attempting to commit a crime involving moral turpitude.”
Man, even the examples include a catch-all.
Then there is general Art. 134, stating in part:
There are 16 pages of explanation for this, in small print.
There is a “preemption doctrine” applicable to Art. 134, prohibiting its application to conduct covered by Art. 80-132. For example, a larceny-type offense (covered by Art. 121), in the absence of the intent required by the larceny statute, cannot give rise to an offense under the general Art. 134.
Examples of offenses listed in the manual as Art. 134 offenses — only in the explanation, not in the statute itself — include animal abuse, neglect, or abandonment (including a sexual act with an animal); bigamy; writing a bad check; child pornography; dishonorably failing to pay a debt; disloyal statements; drunk and disorderly; extramarital sex; fraternization; gambling with a subordinate; negligent homicide; indecent conduct; and others.
The explanation of these Art. 134 offenses generally includes an element:
This could be pretty funny in some circumstances. I could imagine a defendant argument that sure, I had extramarital sex, or maybe sex with a goat, but it did not prejudice good order and discipline and was not of a nature to bring discredit upon the armed forces.
I’m going to stop. I’ve persuaded myself, at least, that the UCMJ is very complex, as I suspected.
EJ, I think that you were responding to my discussion of UCMJ Art. 90. Your one example is clear. There are many other examples that are unclear.
The explanation that I quoted, about a “lawful” order, included: “The order may not, without such a valid military purpose, interfere with private rights or personal affairs.” I find the outer limits of this to be exceptionally vague.
Can a soldier be ordered to break off his relationship with a girlfriend? This would interfere with personal affairs. But maybe it’s a troubled relationship that is affecting his performance. Would this provide a “valid military purpose” for the order?
Sorry to belabor the point. Looking, even briefly, at the UCMJ led me to conclude that there is nothing simple or straightforward about it. It is extremely complicated.
I do agree with Spin’s two comments noting that there is nothing about President Trump’s actions regarding Chief Gallagher that would be an “unlawful” order or otherwise justify the former SecNav’s criticism of the President.
I highly recommend Dakota Meyer’s book, “Into the Fire,” which describes how the Obama military operated in Afghanistan. The JAG rules saved his life as he was restricted to base as punishment for shooting at Taliban mortarmen who were lobbing shells into his fire base. He was punished because they were not wearing uniforms, which Taliban do not wear. As a result, he was not allowed to accompany his Civil Affairs team into an ambush where they were killed. He and a motor pool sergeant then rescued a bunch of guys who were pinned down in the village. They requested artillery but it took hours to get the OK for it.
https://www.amazon.com/Into-Fire-Firsthand-Account-Extraordinary/dp/B009GBVDSC/
Intention not to return.
Yes, if the soldier’s “girlfriend” is the wife of another military member.
@zafar: You’re missing the point. Even a Private E-1 is expected to know the difference between a legal and an illegal order–and, check it out: if the E-1 isn’t sure, he can go to a JAG, who is not rated by nor beholden to the local chain of command.
@ejhill: I know Green personally; he was the last commander of my current unit (at which I’m a contractor, don’t want to create the impression that I’m still a steely-eyed, barrel-chested ‘Murican freedom fighter). I’m not a fan of RDML Green. But…
He took over Naval Special Warfare (NSW, i.e., SEALs) knowing it was a hot steamy mess. He knew it would be a thankless job from which he would probably get relieved before he could make lasting (necessary) changes to NSW. I would ask for a citation on his looking to “change SEAL” culture, but it doesn’t matter. Most senior SEALs are quietly panicking because, uh, their culture is in need of some serious changing.
Eddie Gallagher ain’t no hero. That doesn’t mean he wasn’t getting railroaded.
And, I hate to say this, but I don’t blame anyone that doesn’t change a military course of action based on a tweet. Now, the SECNAV should’ve sent a priority message (through the message system, not email) asking for clarification, guidance and intent. The fact that SECNAV didn’t do so shows that he’s inflexible, not that he has any mutinous disregard of POTUS.
He wasn’t fired for Gallagher; He was back channeling behind the SecDef. Which is why the SecDef says he fired him.
True – The Navy JAG sending malware via email to the Defense team for Gallagher in order to monitor their communications and defense strategy kind of gives that game away.
Then, after the Navy JAGs lost, despite the malfeasance, they gave each other medals.
This is the offense that did in Kelly Flinn.
I don’t know why you hate to say it. It’s a reasonable position. But Esper said Trump spoke to him personally and told him to stop the TRB.
@arizonapatriot, my lay, citizen-soldier view is that the UCMJ is there to put out what is, and is not, acceptable behavior in a military unit.
However, it is there to not only provide a codified code of justice. It is also their for military commanders to maintain good order and discipline.
So, if it sounds like some of the articles are vague, or open to interpretation–they absolutely are. It is a subjective standard written to give a commander the ability to balance both the good order/discipline of his unit, but also to ensure that the code of behavior levied upon the American citizen-soldier is not capricious or wanton.
The way you interpreted the USMJ as written, is there a friction between those to goals, yep.
Is it an outstanding tool, for both Commanders and their troops? Yep.
@cliffordbrown, thanks for a most enlightening post which I, living proof that once military (USAF, SAC, long ago) always military, especially appreciated in this strange time in our history as the greatest Nation ever created is hearing the kind of insubordination which would have been considered unthinkable not many years ago. I have specific reference to Lt. Col. Vindman’s absolutely outrageous, in your face, right out in the open, questioning the authority of his Commander in Chief for all the world to see. I have not, at this writing, read all the comments, so this point has probably already been made, but how in the world this little weasel has not been brought up on charges is way, way beyond me; I can only assume someone, somewhere in the chain of command, is planning to begin the process of reminding him that he is not, no matter what all his fellow travelers in the Georgetown Cocktail Circuit may tell him, the exalted source of all intellect and power in the military, nor even in Ukraine, which come to think of it, would have been doing us a favor if they could have talked him into taking the thrice-offered position of Defense Minister!
Thanks also for the cite to the Dunlap article which I have printed out and will read hopefully this afternoon while everyone else around here is cheering on some team or other without special enthusiasm as, alas, LSU doesn’t play until Saturday! :-(
Thanks again, Jim.
PS: I love the name the inimitable Roger Kimball gave Vindman: “Polly Prissy Pants”! Fits him to a “T”!
We’ve found cancerous cells, but we’ve not even diagnosed the extent of the cancer or made a plan for removing it.
I’m not even sure what that would look like. A proclamation by the President about how things need to be under every president? A judicial ruling that a sitting president may clean house as he wishes? A radical disloyalistectomy with – ideally to me – prohibitions for future government work and possible loss of pensions?
When I think of our military’s loyalty to the former president in contrast to the rest of our government’s disloyalty to the current president I dream of the kind of purge that will make future people who get paid from the pocket of every other American think very hard before behaving illegally, unethically, or unfaithfully. You want to work against the government? Do it on your own dime.
True.
But it’d be fun to catch them and rain fire on the perpetrators.
So…if there were a higher proportion of local levies did you have more or fewer security troops killed. And was there a difference in which security troops (foreign or levied) were killed?
Pretty sure not.
Depends on whether Congress has declared war on Mexico, doesn’t it?
duplicate
Jonah Goldberg conclusively refutes the McCain theory of “torture:” label enhanced any tough, (actually effective) interrogation technique “torture,” criminalize all such actions, then claim that selfless men will stake their lives and their families’ reputation and material futures on men like Goldberg rallying to rule in judicial proceedings, after the fact, that the actions were illegal but excused in this instance.
No one with an ounce of sense bought that fraud when it was advanced 2003-2008. Now the Goldbergs and Frenches, who once claimed concern about the administrative state, have shown a naked political will overriding all else.
And no, David French is not worthy to lace the boots of Chief Petty Officer Gallagher, Army Major Mathew Goldsteyn, or First Lieutenant Clint Lorance. French,who leveraged his law degree to get into the military the easiest way and into the relatively safest position, while burnishing his conservative credentials, UNLIKE the truly noble Tom Cotton, is a part of the plague of lawyers on our military that got real warriors killed and maimed.
Well, Spinny, actually I gave what I thought a pretty clear answer. You, like any lieutenant by the way, did not have a clear or sophisticated set of claims about unlawful orders, but you and I both knew that there was such a category, and that “just following orders” was a leftist trope, not an American military reality, including in Vietnam.
Now, the question of Mexico, raised by the leftist lawyer who helped cripple our military during the Obama administration, and who was signalling to the collaborators left in position:
We all already know the answer, if we can just step back from the mind clouding hatreds of the moment: “Pancho Villa,” “Black Jack Pershing.”
Of course it is lawful for a president to respond to a clear and present danger with military action. The cartels are out of control? Threats to our citizens, cartel killings of Americans? Another punitive expedition would be squarely inside what other presidents have done. And, that expedition require immediate Congressional notification so Congress could weigh in, possibly blessing and possibly ending the military action.
This is not new. It is not arcane. “Invade Mexico” is an incredibly bad example.
No. If by “invade Mexico” you mean a punitive raid after a cartel, for example. See “Pancho Villa” and “Black Jack Pershing.” This stuff actually is not new at all. We have a lot of history to work with.