Welcome to Liberrants, a blog dedicated to editorials, discussions, and studies of all things libertarian. Don't let the title mislead you; it's merely my attempt to be creative in describing myself as a "hopeful curmudgeon" who embraces the goal of the free, peaceful, economically vibrant society envisioned by America's founding fathers. Jump in! Contribute! Enjoy!

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Location: Tucson, Arizona, United States

A critically thinking curmudgeon whose goal, in addition to creatively venting about the imperfect world in which we live, is to induce critical thinking in others. The ultimate goal is to help bring about a peaceful world in which we can all live in freedom.

Tuesday, October 11, 2005

Jacob Hornberger Has it Exactly Right

Jacob Hornberger’s article in today’s LRC reiterates the obvious, that our troops in Iraq are in clear and open violation of their oaths of enlistment/commissioning (you can also access this article here at the Future of Freedom Foundation (FFF) commentaries page).

For those who are not familiar with these oaths, and as a reminder to those of us who have served or are still serving in the United States Armed Forces, here are the oaths of enlistment and commissioning, respectively:

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

"I, _____ (SSAN), having been appointed an officer in the Army/Navy/Air Force/Marine Corps of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)

Note here that the very first thing the oath commits the individual to is the support and defense of the Constitution. This is certainly no coincidence, for the only source of authority for the president, the cabinet, the congress, or the military leadership is the Constitution. PERIOD. All else in the oath is contingent upon the member’s support and defense of the precepts of this founding document, including “allegiance to the same.”

Note also that the charge to enlisted personnel to obey the orders of the president and the officers appointed over them in accordance with the Uniform Code of Military Justice (UCMJ) follows the order to support and defend the Constitution. Interestingly enough, the UCMJ mentions the Constitution only once, in Article 141 which establishes the United States Court of Military Appeals. However, it is clear from the provisions for trial by courts martial, including the right of the accused to a trial by court martial and the prohibition against compulsory self-incrimination that the document is based on the Constitution and the Bill of Rights, however imperfectly applied under the military’s concept of justice. What is obvious is that obedience to the UCMJ takes second or third seat to the charge of supporting, defending and, by clear implication obeying the Constitution itself, without which the UCMJ would have no basis as law.

All of that said, I would like all of those currently serving on active duty or in the active reserves to explain to the nation how they can possibly continue to serve on active duty under an executive that has clearly violated the Constitution by waging war without Congressional declaration (the passive consent of that impotent body DOES NOT COUNT AS A DECLARATION!). By acquiescing to this illegal conflict, each and every member of the armed forces is derelict in their duty to uphold and defend the Constitution of the United States and is thereby subject to court martial, imprisonment, dishonorable discharge and, in a worst case scenario, charges of treason.

The likelihood of my being called back to active duty is extremely small, but I can tell you this much: should the regime attempt to call me back to active duty, I will refuse to serve unless or until the powers that be can prove to me that they are fighting a legally declared war of national defense in accordance with the Constitution. Somehow I doubt they’ll meet that burden of proof.


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