The U.S. Military Is Not Ready for a Constitutional Crisis

The Atlantic – by Ken Harbaugh

I spent nine years on active duty in the U.S. Navy. I served as an aircraft commander, led combat reconnaissance crews, and taught naval history. But the first thing I did upon joining the military, the act that solemnized my obligation, was swear an oath to support and defend the Constitution. How strange, then, that despite all of my training, the millions of taxpayer dollars devoted to teaching me how to fly, lead, and teach, not once did I receive meaningful instruction on the document to which I had pledged my life.

For most of my time in uniform, my lack of understanding about the Constitution was entirely academic. No one I served with imagined that we would ever find ourselves choosing between following orders and upholding our oath. Some were dimly aware that our compatriots long ago had wrestled with these issues. As an instructor at the Citadel, I taught my students about the My Lai massacre, and about the obligation to disobey an unlawful order. But it was theoretical. To my students, Vietnam was a faint echo.

Then, the global War on Terror hit its stride. We began to hear about black sites, where prisoners were detained in secret. We learned about the practice of rendition, in which captives were sent to other countries, beyond the reach of our laws. And we became aware of waterboarding, an extreme interrogation method that simulates drowning. I had left the Navy and was in law school when news of the torture memo broke. This was the George W. Bush administration’s attempt to offer a legal justification for “enhanced interrogation.” I had been through Survival, Evasion, Resistance, and Escape (SERE) school, the military’s interrogation training program, from which these techniques had been adopted. I understood the “enhanced” methods described by the Bush-administration lawyers for what they were: torture.

At the time, I found it unconscionable that legal scholars would be complicit in underwriting our government’s disregard for the Geneva Conventions. But with the benefit of hindsight, though I still find the torture memo appalling, I can at least acknowledge that the Bush administration cared enough about the law to offer the pretense of legality.

The current administration is not even trying. President Donald Trump openly flouts laws at home, while threatening to destroy cultural sites abroad (a blatant violation of the Geneva Conventions). The faint echo of My Lai grows louder every time the president celebrates a U.S. war criminal. For example, Lieutenant Clint Lorance was convicted by a military jury of ordering his soldiers to murder unarmed civilians, after nine members of his unit testified against him. Lorance was not only pardoned by President Trump, but welcomed as a guest of honor at a political fundraiser.

When it comes to defending Trump’s assaults on the Constitution, the best excuse his enablers can muster is that he does not mean what he says. Although his statements may condone illegal actions, such as the murder of noncombatants, the public is told that they do not reflect the government’s actual policy. When it comes to the president’s authority as commander in chief, this defense makes no sense. An order from the president of the United States, issued to a military commander, is de facto U.S. policy.

That does not mean policies cannot be challenged. Indeed, anyone charged with defending the Constitution is morally and legally bound to disobey an illegal order. Given the president’s record of abandoning constitutional norms and of placing his own interests above those of the nation, service members are approaching the point where the chief executive can no longer be afforded the benefit of the doubt when it comes to orders of dubious legality.

Should that point arrive, those charged with carrying out such orders will bear an enormous burden. From my time in the Navy, and from conversations with those still in uniform, I fear that the American military is not prepared. It has failed, at every turn, to provide those charged with defending the Constitution even the most basic understanding of what it means.

The country can, however, begin to correct this. All those who swear an oath to the Constitution should be issued a copy, preferably a pocket version to be carried as a reminder of where their loyalty properly lies. They should receive a basic overview of its structure that includes the relationships among the three branches, and further instruction that treaties such as the Geneva Conventions, ratified by the Senate, are U.S. law. Finally, before swearing their oath, they should have to pass a basic comprehension test.

Some might say that such a curriculum will pose an unreasonable training demand for America’s war fighters. That argument cannot be seriously made. The flight manual for my aircraft, which I was required to know virtually by heart, reached 400 pages. Pilots regularly receive updates that are longer than the Bill of Rights. The Constitution is not that complicated. A course outlining basic constitutional concepts could be taught in a matter of days.

Years ago, as a young Navy pilot, I learned to escape a sinking helicopter at night, to land a plane with its engines on fire, and to lead aircrews into harm’s way. All of this, to uphold an oath. Today, the Constitution is under assault from within. The least this country can do to prepare those charged with its defense is to help them understand what they have pledged their lives, and their honor, to uphold.

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

The Atlantic