Government and Military’s Faithfulness to Constitutional Oaths

By Scott Lazarowitz

Should those working in government and military be expected to obey the U.S. Constitution they have sworn to support and defend?

For instance, in domestic policy Attorney General Jeff Sessions wants to enforce federal drug laws even in states whose voters approved of some drug legalization, a violation of the Constitution’s Tenth Amendment regarding policing authority. The Constitution doesn’t even authorize the federal government to get involved in drugs, period. The AG is also violating the due process clause when he directs law enforcement to steal cash from citizens regardless of whether they are charged with any crimes.

And when it comes to foreign policy, even the military and its Uniform Code are clear on the ideas of swearing or affirming to support the U.S. Constitution and following lawful orders.

All U.S. military enlistees swear or affirm an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” to “bear true faith and allegiance to the same … according to regulations and the Uniform Code of Military Justice…”

Now, the Uniform Code of Military Justice, or Title 10 U.S. Code Chapter 47, indicates that military personnel must obey “lawful” orders. For example, if accused of “willfully disobeying a lawful command of his superior commissioned officer,” a serviceman may be punished accordingly. And if accused of “willfully disobeying the lawful order of a warrant officer, noncommissioned officer, or petty officer,” a serviceman may be punished accordingly. And the law specifically states that one who “violates or fails to obey any lawful general order or regulation,” or who has “knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order,” the serviceman may be punished accordingly.

Note how military personnel must obey “lawful” orders. Therefore they are not legally obligated to obey unlawful orders, by superior officers, or even by the President of the United States.

And all military officers, such as the current Secretary of Defense Gen. James Mattis and former Homeland Security Secretary and now White House chief of Staff Gen. John Kelly, also swear or affirm an oath similar to enlistees when commissioned.

The President of the United States also swears an oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Now, when military and other government officials swear an oath to support and defend the U.S. Constitution, does that mean they are obligated to support and defend each and every article, section, clause and amendment of the Constitution? Obviously that would have to be the case.

But just how much have U.S. Presidents including Donald Trump been “preserving, protecting and defending” the U.S. Constitution?

The Bill of Rights consists of the first ten amendments of the U.S. Constitution. Sadly, there are those who consider themselves “Constitutionalists,” yet they believe that these “rights” only apply to U.S. citizens.

The Bill of Rights recognizes rights which are inherent in all human beings, rights which preexist the formation of any government, or the formation of any nation, in fact. For example, all people have the right to defend themselves against aggressors, and they have the right to possess the means of self-defense they believe to be necessary. “The right of the people to keep and bear arms” is one of those inherent rights which preexist government.

If foreigners invaded the U.S. most Americans would think that taking arms against the invaders would be justified. That is everyone’s right. But when it comes to the right of the people of Iraq to defend themselves against the U.S. invaders there, many Americans have been conditioned to believe that no, the Iraqis don’t have such a right to self-defense. Sadly, most Americans including “gun rights” advocates probably applauded U.S. troops going door to door in Iraq to steal their firearms.

Obviously, being a citizen of the United States of America is not a requirement to have natural rights which are inherent and unalienable.

And all people have a right to due process and presumption of innocence by the ruling government which controls the judicial apparatus.

This right to due process means that the accused have a right to require the accuser to present evidence against the accused, and in a public setting, and the accused has a right to defend oneself against accusations which may very well be false accusations. The accused has a right to confront the accuser and challenge the accuser’s testimony or evidence which may very well be fabricated. And the accused has a right to show evidence or present testimony which may exonerate the accused.

Those are basic individual rights, because anyone can accuse anyone else of anything. This includes Presidents, military generals, judges, and policemen. No one should be empowered to be accuser, judge, jury and executioner.

Sadly, some people are very authoritarian in their mentality, and they have a blind faith in the decisions, assertions, and accusations of or by government bureaucrats, military generals, government police, judges and U.S. Presidents. Authoritarians believe that if the President and others say that this person here is a “terrorist,” he therefore doesn’t have “rights”  and thus it’s okay to put the accused in a prison and detain him indefinitely and even torture or kill him.

Taking the government’s word that someone is a “terrorist” is dangerous because the government could have any one of us detained, tortured, indefinitely imprisoned or killed, and for whatever reason the bureaucrats or their enforcers claimed.

For instance, out of 779 prisoners held at the unconstitutional Guantánamo prison in Cuba since 2002, over 700 of them have been released, because they were innocent and there was no evidence against them. Only 5% were captured by U.S. troops, but 86% were turned in by Afghan villagers who were paid bounties by the CIA. According to investigative journalist Andy Worthington, George W. Bush and Dick Cheney knew that “the vast majority of Guantánamo detainees were innocent” and that senior intelligence analysts believed that such Guantánamo detainees were “mistakes” and “had no connection to terrorism whatsoever.” Some of the detainees who were released had given false confessions, which is the real purpose of bureaucrats violating the Eighth Amendment and using torture in the first place.

But many people blindly believe the word of government authority, that someone who is accused by the government of something is therefore guilty of the crime.

So for many years now U.S. military and bureaucrats have been violating their Constitutional oaths by violating the unalienable rights to due process of many innocent people. The wars themselves that U.S. bureaucrats have started these past 25 years have also been violations of Constitutional oaths. Aforementioned military bureaucrats James Mattis and John Kelly have also been complicit.

During the first U.S. government war of aggression on Iraq that President George H.W. Bush started in 1991, then Lt. Col. Mattis led the 1st Battalion, 7th Marines which forced the Iraqi army out of Kuwait.

However, the U.S. Constitution doesn’t authorize the U.S. government to get involved in conflicts between foreign populations or governments. The Constitution also doesn’t authorize the U.S. government to have any military bases on other territories such as Kuwait which are not U.S. territories.

The U.S. military bombed Iraq and its civilian water and sewage treatment centers during that 1991 Gulf War, which, with the sanctions the U.S. government imposed, caused the Iraqis to have to use untreated water and that led to high rates of disease and hundreds of thousands of deaths throughout the 1990s.

Then the U.S. government’s post-9/11 war on Iraq caused hundreds of thousands more civilian deaths, white phosphorus and all, causing horrifying birth defects in Iraq.

Yet, more recently regarding “invasions” across U.S. borders, Gen. Kelly was quoted as stating, “The border is, if not wide open, then certainly open enough to get what the demand requires inside of the country. Terrorist organizations could seek to leverage those same smuggling routes to move operatives with intent to cause grave harm to our citizens or even bring weapons of mass destruction into the United States.” How ironic, to say the least.

Gen. Kelly was a commander of the 1st Marine Division and “Task Force Tripoli” in Iraq in 2002-2003, and returned to Iraq in 2007-2008.

During the wars in Iraq and Afghanistan of 2001-2017, while commanding the Marine Expeditionary Force in Afghanistan James Mattis oversaw the prosecution of several servicemen accused of killing or assaulting civilians. All of the accused pleaded guilty or were convicted of the war crimes, yet Mattis had the charges against several dropped and commuted the 8-year sentence of one of the murderers who pleaded guilty.

Mattis himself had, allegedly, committed war crimes with the murders of civilians when he ordered the assault on a wedding party in Iraq that U.S. officials asserted was a “suspected foreign fighter safe house,” although video helped to verify the victims’ claims. (And the U.S. military’s war on civilians continues unabated — and virtually unreported by mainstream media.)

Regarding the U.S. military’s invasions of Iraq and Afghanistan, Mattis was quoted as stating, “Actually it’s quite fun to fight them, you know. It’s a hell of a hoot. It’s fun to shoot some people. I’ll be right up there with you. I like brawling.”

The truth is, those generals and thousands of troops and commanders had no moral case to invade Iraq, either in 2003 or in 1991.

Following World War II, the Nuremberg Trials established that “planning, preparation, initiation or waging of a war of aggression” is in and of itself a war crime.

When federal bureaucrats have so much disregard for their Constitutional oaths and for the due process rights of innocents, and with the possibility of civil unrest and martial law in America, military and local law enforcement should be urged to disobey any unlawful order by any superior officer or even the President, such as to unlawfully detain innocent people or unlawfully confiscate firearms, without due process.

Scott Lazarowitz is a libertarian writer and commentator. please visit his blog.