Margin of Ehren
A few more thoughts on the Lieutenant Watada court-martial, based on discussion here and at Obsidian Wings. A lot of this is more about the ethics of the case than the legality of it.
Andrew and others worry about Watada’s action flouting civilian control of the military. This is a bedrock principle of American polity and an important one. It deserves to be a factor in judging Watada’s “action.” Those are scare-quotes I will explain.
Some of the ObWi commenters conflate acts of commission and omission in their hypotheticals, which as a libertarian I am loath to do. (One commenter argues that by Watada’s logic, someone could decide to rob Bill Gates and give the money to the poor.) Refusing to join a neighborhood watch group on your block, refusing to go on patrol tonight with the neighborhood watch group you freely joined even though it’s your turn, and robbing someone on your street are three courses with three different moral valences. I’ve ranked them in ascending order of wrongness, where the first is arguably not wrong at all and the last is very bad. Andrew is rightly horrified by one ObWi commenter’s suggestion that it might not be so awful if the American military turned George Bush and Dick Cheney out of office in favor of other civilian leadership. I’d certainly be horrified if Lieutenant Watada had tried to overthrow the government. What he actually did was choose not to do something.
Next, it’s worth asking why “civilian control of the military” is so important. Is it a good in itself, or is it for something? I would say the latter. Okay, what is it for? Why is civilian control of the military enshrined in the constitution? I’d say two reasons. First, the framers wanted to make it as hard as possible to start wars, because they believed promiscuous war had been the ruin of Europe. Thus they scattered the pieces of warmaking authority among the branches of government like the body of Osiris across the breadth of Egypt. Next, the values appropriate to the barracks and the battlefield are noxious values for society as a whole. For these reasons the framers subordinated the soldiery to civilians.
Watada’s particular brand of disobedience – his refusal to deploy – does not tend to make it easier to start unnecessary wars or risk militarizing daily life. Quite the contrary. In theory, “if everybody did it,” or a sizable portion, when the country were threatened with invasion, the country would cease to exist. In practice, were that to happen, the country would deserve to. Consider how Saddam Hussein’s government became, at the end, a regime not many people would fight for.
None of the above is an argument that Watada’s decision was no big deal! or without troublesome implications. But I think the direness of his particular act of disobedience has been overstated.
Another issue is when it was appropriate for Watada to opt out. The prosecution argued that Watada should deploy and worry about refusing a specific illegal order at that time. I see the sense in that. But can’t one also argue that if Watada sees himself inevitably having to refuse illegal orders, that taking the earliest possible exit is the most responsible action? First, responsible to his duty to the law – in the pressure of the moment it’s hard for the best to find the strength to do his duty. Eric Fair in the Post today:
Despite my best efforts, I cannot ignore the mistakes I made at the interrogation facility in Fallujah. I failed to disobey a meritless order, I failed to protect a prisoner in my custody, and I failed to uphold the standards of human decency. Instead, I intimidated, degraded and humiliated a man who could not defend himself. I compromised my values. I will never forgive myself.
Second there’s Watada’s responsibility to his unit and the Army as a whole. He may well have felt that the best time to opt out was when it put minimal cost and risk on his men, which was before leaving the country.
I’m not prepared to say just where the foregoing should impact Watada’s case. The guilt phase? Sentencing? I am saying that we should credit Watada’s seriousness, and doubt that his decision threatens the constitutional order.
Finally: In the first post on Watada’s case I argued at length that I doubted he could make his legal case. It’s important to point out that Watada’s lawyers may be better at that than I am. Therefore the fact that his case looks open and shut to me or anyone else shouldn’t prevent Watada from mounting a defense. He and his legal team may surprise us.
Comment by sean —
February 9, 2007 @ 9:18 pm
If Army officers were allowed to remain in the Army and refuse to deploy, it would have been impossible for Lincoln to fight the Civil War. More generally, an element of civilian control of the military that you ignore is that the elected government gets to choose which enemies to fight, even enemies which have substantial sympathy among the officer corps.
Comment by Hesiod —
February 9, 2007 @ 9:49 pm
Jim, google info on Billy Mitchell.
Comment by Handsome —
February 9, 2007 @ 10:08 pm
I’m curious — and this is a tangent, but I come by it honestly, and with sincere curiousity — why are you so resolutely opposed to a military coupe turning Buscheney out of office, and empowering someone else? I’m not saying I’m in favor of it, I’m simply asking for an explication of your reasons for so adamantly denying it any potential righteousness.
It seems to me that much would depend on the actions the military took AFTER turning the illegal occupiers out. If whowever was then in charge immediately called for a national plebiscite to elect new leadership, wouldn’t that be, in some manner, correct?
Or, well, suppose Congress grows a pair and actually impeaches Buscheney, both of them, simultaneously… and both of them, simultaneously, refuse to recognize the legality of the action and hunker down in the White House, insisting that Congress has no right to impede the unitary executive in time of war? Suppose Nancy Pelosi orders their arrest, but the entire Justice Department goes on an extended lunch break to avoid obeying the order? It’s a Constitutional crisis for sure… and if the military decided to step in on the side of Congress (and the Constitution) would that be so bad? If all they did was effect the removal of two ex-officials (who were never legitimately elected to office anyway) and installing the current lawful Chief Executive?
And, if that’s wrong due to posse comiitatus or something, then, what if the Secret Service does it instead? Is that better? Worse? The same?
I ask because, paranoid though I am, I am only a twenty cent cab ride away from fully believing it’s going to take something like armed force to get the current gang of thugs back out of Al Gore’s office.
Also, because I’m honestly curious as to how you feel about this… well, no, you’ve made that plain. I’m curious as to why.
Comment by Thoreau —
February 9, 2007 @ 10:29 pm
A military coup would mean the end of the rule of law, and it would mean that political questions shall no longer be decided via elections and maneuvering among the 3 coequal branches. That would be objectively worse than anything we face right now.
Now, if they refused to step down at the legally appointed end of their terms, or if they refused to honor the results of a lawful impeachment and conviction, then it would be appropriate for government agents to drag them kicking and screaming out of whatever building they hide in, deposit them on the curb, and salute the lawful successor. That’s very different from the military unilaterally deciding to remove somebody from power.
Comment by Jim Henley —
February 9, 2007 @ 10:41 pm
Thoreau == labor-saving device
Hesiod: I read your link. Can you elaborate on the relevance for me? I honestly didn’t see it.
sean: Absolutely that’s the third leg of the triad and the one that Watada’s actions most threaten. I personally consider it the least valuable of the three, as a bit of “vulgate Godwin” will quickly show, IMHO. IOW, it is possible for a military thoroughly under the control of a civilian government to be aggressive and even genocidal. We’ve seen it happen.
Comment by Wild Pegasus —
February 10, 2007 @ 12:45 pm
I don’t see what the big deal is. If a man signs up to perform hits for the mob, then has a change of heart, should we attack him or be relieved he came to his senses?
- Josh
Comment by Handsome —
February 11, 2007 @ 10:40 am
A military coup would mean the end of the rule of law, and it would mean that political questions shall no longer be decided via elections and maneuvering among the 3 coequal branches. That would be objectively worse than anything we face right now.
Rule of law?
I’m sorry? Are we living on the same planet?
Our government can now lock any of us up, at any time, forever, in a secret location, without filing charges, without getting a warrant, without giving us a trial or access to a lawyer or any outside contact. They can spy on us, they can torture us, they can search our homes at will, they can confiscate our chattels, they can, I presume, rape us and beat us and, I suppose, kill us, if they feel like it.
Oh, I know, I know. They haven’t yet. But there are no longer any laws that prevent them from doing so.
Say ‘rule of law’ again. I dare you.
Thoreau == labor-saving device
Yeah, if all you’re looking for is a frickin’ knee jerk, reflexive cliche response that has no actual bearing on the actual situation we are all currently in, he’s the frickin’ robot housekeeper from DOOR INTO SUMMER. If you’re looking for something insightful, though… well, that’s why the question was addressed to Mr. Henley, who posted the original essay I was responding to.
Sorry to waste everybody’s time with what was obviously a really really stupid inquiry.
Here’s my point, as I probably haven’t made it clear — you’re all aghast at the idea of guys with guns deposing our legitimate, Constituational government by force of arms. Hey, right there with you. But we don’t have a legitimate, Constituational government, we are currently living in a tyranny. You know how you get rid of a tyranny? Check your history. Every single time, it takes guys with guns. (I don’t mean to be sexist. I’m happy to accept the help of women with guns this time around, too.)
We no longer have rule of law. If we want it back, it will take people with guns to give it to us. As we’re Americans, we really feel we’re entitled to have someone else do all the heavy lifting for us in this and every other regard. So, in this case, I’m thinking the military is an excellent candidate to right our ship. And while there may be many reasons that’s not a good idea, ‘rule of law’ is certainly not one of them. That’s just ludicrous.