ubertuber

host:

You raise good points, and I'll do my best to show you how my thinking works. First off, I acknowledge the right and responsibility of soldiers, airmen, sailors, and marines to not obey an illegal order. However, I hold that in the scope of the oath taken by military members, this war is legal until found unconstitutional - and guess who does that. Not individuals, but courts. Here I am making a distinction between the order to go to war, which on its face is authorized by Congress, and illegal orders issued in a legal (or otherwise) context. In other words, you've got to go to Iraq. But when your superiors tell you to burn down civilian houses every time a soldier dies, you could probably disobey that order and get cleared later. I'm making this distinction, because Congress passed a vote authorizing the President to use force in Iraq. Until this authorization is found by a court to be unconstitutional, it is enough to render the war legal enough to prosecute on. Now your articles suggest that a savvy court challenge to Congress' authorization of force and the President's use of force would be an interesting proceeding to watch, but it just hasn't happened yet.

I also continue to reject the idea that "the military" as a whole (and as distinguished from individual service members) has a right to refuse directives issued by the civilian government. A military that is not under the direct control of our civilian government is a de facto 4th branch of government, and a branch of government that has all of the guns gets to run the show - a la Pakistan.

Ratbastid, I'm gonna side with BOR and say your hypothetical service member has to go to Iraq. The only ways out of it would be to contend that the order was given illegally (which would be hard to prove, since your initial orders are merely to report for duty there, not kill people or whatever), go AWOL (which is obviously not a legal alternative), or file for conscientious objector status. This last is the most plausible, however it requires that you are opposed to any and all war on moral or religious grounds. In other words, no, you don't get to pick and choose which policies you wish to uphold. It's a blanket deal. And filing for conscientious objector status in this case (because of a political opposition) would be a corruption of the purpose of the procedure.

roachboy:

Killer post. I think that "winning" a war wouldn't even absolve you of ex post facto findings of illegality and prosecution. Fantasize with me for a moment about a near future in which we secure Iraq, pacify all insurgents, and witness a stable, democratically elected government which gives us oil for free in perpetuity out of gratitude, and nearby nations salivate for democracy. This would be a successful outcome under any rubric I've heard. However, it would not eliminate a legal proceeding (or impeachment proceeding) alleging that the invasion was undertaken under false pretenses and in violation of Congress and the President's constitutional roles and our various Treaty obligations. Nor would it necessarily absolve military and civilian leaders of responsibility for war crimes committed in the course of a ethical and legal war.

Kind of makes you wonder what would have happened if survivors of Yokohama had filed against McNamara and LeMay for the firebombings in Japan. Obviously this didn't happen, but I believe we now live in a world in which such a thing could happen.

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Cogito ergo spud -- I think, therefore I yam