I think you have it completely backward Todd. I heard that exchange. The intent of the question was what would Petraeus do if Congress passed a law that explicitly said that certain military actions were not authorized, and the President then ordered such actions anyway.

As I understand it, an officer is required to disobey an illegal order. And what Petreaus's answer indicated is that in a situation where there was an open public dispute between Congress and the White House about whether certain military actions are or are not covered by existing authorizations, raising tricky Constitutional questions about Congressional war powers and the powers of the Commander-in-Chief, he would have to consult a military lawyer to determine whether the President's order was or was not illegal, and therefore whether it should be followed.

Rather than see this as an expression of some sort of doubt about whether the military is subject to civilian control, I think this is precisely the answer we want Petraeus to give. He appropriately recognizes that just because he is subject to civilian control does not mean the President is some kind of fuhrer. There is more than one civilian involved in civilian control.

I have to say that my impression so far is that Democrats and the left are in serious danger of losing this public debate, not on the merits, but because some of them are engaging in mindless, unfocused and seemingly random character assassination, bouncing half-baked criticisms off every possible wall, and obscuring their own most important and telling criticisms behind a barrage of preposterous crap. Some of the critics have somewhat ridiculously made pre-emptive claims that certain of Petraeus's statements are lies, before he even made the statements. This approach tends to undermine the credibility of those criticisms, to say the least.

I think the left needs to tone down the kneejerk sputtering and spleen, cut the "Betray-us" crap, and hold their fire until they actually know what they are shooting at, and then make focussed, telling criticisms based on the actual content of the claims that are actually made. This ignorant behavior is really making the Democrats and the rest of the left look very bad.

I agree with Todd. The Constitution is extremely clear that the President and the President alone is the commander in chief of the armed forces. They have no choice but to obey any command passed down from the President, and that command is "legal" because the President issued it. It is a different subject entirely from the Iraq debacle.

The correct answer from Petraeus was, "yes, I will obey the orders of my commander in chief". That he couldn't make himself say that is very, very serious.

Hoppy in Sacramento

Rather than see this as an expression of some sort of doubt about whether the military is subject to civilian control, I think this is precisely the answer we want Petraeus to give. He appropriately recognizes that just because he is subject to civilian control does not mean the President is some kind of fuhrer. There is more than one civilian involved in civilian control
******************************************
Exactly right

Absolutely, not all orders are legal.

Maybe it was just the timing for when I was doing my time for Uncle Sam but I remember receiving many briefings about the legality of orders.

The UCMJ even stated how one could be prosecuted for obeying an illegal order.

This is more than just Geneva Conventions at work. Any order that violates US law is illegal.

Therefore, if Congress passes a bill that becomes law and the President orders you to violate that law then you are bound by military law to not obey the order. If I remember, they even drilled us on how to make the statement to the person giving the order so that we would be in compliance with the UCMJ. Beyond the UCMJ, there is also the oath to uphold and defend the Constitution of the US. Therefore the allegiance is not to Congress or the President but to the Constitution and therefore the People of the US.

I congratulate Petraeus for having the answer ready that he would consult an attorney. Maybe he has already been thinking down the road about that specific conflict coming to pass under the Imperialist Bush.

US military officers' oath of office (which is slightly different than the one for enlisted men) reads:

I (insert name), having been appointed a (insert rank) in the U.S. Army under the conditions indicated in this document, do accept such appointment and 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; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

I swear by God this sacred oath: I will render unconditional obedience to Adolf Hitler, the Führer of the German Reich and people, Supreme Commander of the Armed Forces, and will be ready as a brave soldier to risk my life at any time for this oath.

--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

Not to mention that Petraeus said what he was going to say at least twice in the week or so before he said it, once in an article in The Australian and once in an article in the Boston Globe.

Besides, if what he was going to say was that predictably following the president's bogus line on the conditions in Iraq, it seems very dangerous to allow it to go unrebutted until some later date. At that point the battle is lost and the war continues indefinitely into the next presidency. It's media 101.

The ad is a hard hitting negative ad -- like the ones the right slings at us all the time. The phrase "Betray-us" sticks in your head. The press has been saying the word "Petraeus" incessantly and we can thank the right wing for calling attention to the phrase because it sticks right there when you hear his name. It may not be fair to him, but it makes a point about the Bush administration that needs to be made.

Besides, I much prefer the ad to Biden's phony crying in his beer over the poor troops because Biden is going to fund keeping them in Iraq and sending more of them to Iraq and he will cry every time he tells us about his latest trip to Iraq (he's on trip 8 now -- how many more trips to Iraq will Biden make crying over his total inability to have any effect of any kind on this war!)

Hard-hitting is better than surrender.

The one command that the brass should have questioned was the one Commander Bunnypants gave to invade Iraq.

Perhaps we could exit Iraq by invading Syria. An added benefit would be that it might cause the secular/educated Iraqi's to flee back to Iraq.

Hadn't encountered that one, but the Fuehrerprinzip has uncomfortable similarity to the theory of unitary authority. Perhaps I might do well to recall a folk unit of measurement in the Third Reich, the Goeb: the amount of lies that could be issued in one unit time. Great skill was required to distinguish Goeb measurements from measurements in Rusts (named for Education Minister Bernhard Rust), which was the amount of nonsense one could speak in a unit time.

--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

Dan,

I think the left needs to tone down the kneejerk sputtering and spleen, cut the "Betray-us" crap, and hold their fire until they actually know what they are shooting at, and then make focussed, telling criticisms based on the actual content of the claims that are actually made.

Perhaps you can offer some examples of such "kneejerk sputtering and spleen", keeping in mind that Petraeus has been principally criticized for his political op-ed pandering in September 2004, his complete and utter failure at training Iraqi battalions 2004-2005, his cherry-picking of statistics after he got promoted to CG-Iraq in 2007 (no doubt aided by his political effort in 2004) to help Bush yet again, and most recently his grandstanding in front of Congress.

What is YOUR threshold for betrayal of an officer's expected conduct?

I saw Joe Biden on Chris Matthews's show tonight and I thought Biden was spot on - he absolutely nailed the whole Iraq fiasco, and was brilliantly persuasive. He criticized Petraeus and Crocker a bit, but didn't get personal. He smartly kept the focus where it belongs: on the civilian leadership - Bush and Cheney mainly - and the idiot Republican politicians who have supported them through this whole mess. He really cut loose with some holy, righteous anger. (I know ... Biden always seems angry. But this was well beyond the usual level.)

He also spoke very movingly of the soldiers he had met during his eight trips to Iraq. I think the antiwar side has done a pretty fair job so far in preventing the Iraq debate from degenerating into some sort of Culture War with the military, and that's a good thing. The soldiers in Iraq are soon going to be back here in the States, and we want to have as many of them as we can on our side.

I think the line we take toward Petraeus should go something like this:

"Thank you for your testimony, General Petraeus, and your service. You didn't create this fiasco. Your boss did. He's the one who is now hiding behind our military commanders, and who left it to soldiers like you to come here and try to put lipstick on this pig. I appreciate your can-do attitude. But I'm not buying it. Now here's why I am going to introduce legislation to bring this sorry episode to a rapid conclusion, and bring you and the men and women under your command back home to their families."

The facts and reason are on our side. We don't have to stoop to character assassination and name-calling.

When Dan wrote:

"I think the left needs to tone down the kneejerk sputtering and spleen, cut the "Betray-us" crap, and hold their fire until they actually know what they are shooting at, and then make focussed, telling criticisms based on the actual content of the claims that are actually made."

I took him to mean that critics of the current policy should not dismiss out of hand whatever Petraeus was going to say about the current situation before he said it.

If he has said things in the past that detract from his credibility now then of course that should be factored into an assessment of what he is saying now, but only to the extent it is not possible independently to determine the accuracy of his factual claims. The Administration is making this more of an issue by its failure so far to release the methodology used to make those claims.

Petraeus' 'report' is substantively relevant only to the extent he makes specific claims the Administration cites to support its future course of action. What is relevant, as DanK notes in his followup post, is whether, Petraeus or not, the reality of the situation supports the course of action the President alone is responsible for articulating and pursuing.

There is no way the Democrats can avoid having a great deal of attention focused on what they are doing--and not doing, on the war at this time. I would venture that many Congressional Democrats do not entirely welcome such attention.

Congressional Democrats need to act now. The Administration's declared next steps are an abdication. They are incoherent as policy and should be named as a transparent and shameful attempt to play politics with national security by presenting the appearance but not the reality of responding to the public's deep distress at the Administration's lack of direction and competence in its conduct of the war.

Carpe diem. Or the moment will pass. An anxious nation awaits their response.

Do you think He did a poor job in those roles? Or do you think that the reason the war has gone so badly is that it was a wrong and stupid idea to begin with?

Well, Todd's post certainly seems to me like a piece of kneejerk sputtering and spleen. It is a misinformed, half-baked rant about an alleged "disgrace" that never occurred. He basically accused an officer of contemplating treason against the Constitution, simply because the latter recognizes the existence of Congressional war powers, and the legal, constitutional limits on his obedience to the Commander-in-Chief.

Don, do you think some other officer would have done a better job at training the Iraqi battalions? My sense is that the underlying problem was that you just couldn't get enough Iraqis who were really committed to fighting for the weak Iraqi government, and that no amount of "training" would do it. I also think that Washington, having deposed Saddam and established a US presence in Iraq, is not really interested in creating a really potent Iraqi military, and prefers to keep Iraq relatively weak and divided. So the Iraqi troops have never really received the sort of commitment and material that would be needed to turn them into a serious army.

I didn't really see any "grandstanding". I remember the Oliver North testimony, for example. And there was a case of a strutting hambone prima donna, grabbing the spotlight and running with it to lecture Congress with a bunch of right-wing speechifying. Petraeus and Crocker, by contrast, seemed relatively subdued and restrained in their testimony. Yes, there was some spinning. But I thought they answered direct questions reasonably directly. Overall, with the combination of the Petraeus and Crocker testimony and some good hard questioning from the committee members, the truth more or less came out.

I"m sure we can find fault up and down the chain of command. But if ever there was a war where the chief fault lies with politicians, this is it. We shouldn't be scapegoating the military for a war that was not conceived by the military. Move-on should have used its money to run an add about the idiot, lying cowards George Bush and Dick Cheney, hiding behind their generals.

Can you imagine if Ann Coulter or Sean Hannity had dubbed a Democratic candidate with a name like Fred Petreus, "Fred Betray Us?"  Does anyone doubt that they would do exactly that? 

Just like their other childish insults it would be on the front page of every newspaper and would get legs and laughter from the usual suspects.  The moniker would stick, and would be enough to "swift-boat" poor Fred into oblivion. 

Silly?  Yes, but I like it.  In fact, he deserves worse.

Jan

It's come to this: a four-star general muses aloud about whether he is subject to civilian control. He would consult with lawyers and superiors. Not Article 2, Section 2 of the Constitution: "The President shall be Commander in Chief of the Army and Navy of the United States...."

I agree with several posts here. The "Commander-in-Chief" is merely the topmost person in the chain of command. If an order from the President is illegal, it is no less so than an illegal order from a quartermaster colonel.

Assuming Petraeus understood the question to suggest that an order from the Purse-Lipped nonentity might conflict with the law of the land, he answered the question correctly.

Dan,

Todd's post certainly seems to me like a piece of kneejerk sputtering and spleen. It is a misinformed, half-baked rant about an alleged "disgrace" that never occurred.

Todd wrote:
1. "a four-star general muses aloud about whether he is subject to civilian control."
2. ""only a few Democrats on two House committees seemed inclined to dispute with much vigor the assessments provided . . "
3. "That doubles the disgrace."

One disgrace, Todd writes, is that Petraeus wouldn't give a direct answer on whether or not he would obey an unlawful order, and the second is that the Dems are weak (or "fearful" as some say). This hardly qualifies as a "piece of kneejerk sputtering and spleen", does it. I might classify some of my own rants this way, but, come on, Todd was Mister Mild on this one.

Don, do you think some other officer would have done a better job at training the Iraqi battalions?

The point is not what some other general might have done, but what Petraeus did. In September 2004, just in time for the election, when Kerry said the war was going south, and Petraeus was well into his assignment (Jun 04-Sep 05) to train Iraqi troops, Petraeus wrote an op-ed for the Washington Post saying that everything was looking up. "“Six battalions of the Iraqi regular army and the Iraqi Intervention Force are now conducting operations. . .Within the next 60 days, six more regular army and six additional Intervention Force battalions will become operational. . . Nine more regular army battalions will complete training in January”. In September 2005, when Petraeus completed his training assignment, "The number of Iraqi army battalions that can fight insurgents without U.S. and coalition help has dropped from three to one, top U.S. generals told Congress yesterday."

If even you, a non-military observer, knew that there was no possibility of training Iraqi battalions then shouldn't Petraeus have known it, AND SAID SO? No, he is a political, falsifying cheerleader for a failed exercise in US hegemony. If this be not betrayal, what is it?

I didn't really see any "grandstanding".

I don't have a TV but I trust Helena Cobban, who was referring to the House testimony:
"Today it was a joint hearing of the House Foreign relations and Armed Services Committees. I guess the main thing that struck me was the cock-a-hoop way that Petraeus preened his way around the hearing room, gladhanding everyone like a seasoned politician... Whereas Crocker looked anguished, concerned, and very uncomfortable. Also, whenever the Congress members asked questions that were not specifically directed to one or other of the two "witnesses", Petraeus jumped right in and answered them without even seeming to ask Crocker if he wanted to go first. Even when they were on clearly political (as opposed to more military) subjects. It was alpha-doggist discourse-hogging of the first order. Fairly nauseating, all in all."

I did see some videos of the two, and Petraeus did appear cockish while Crocker is clearly in over his head, and obviously no match for Petraeus with his attitude and all his ribbons and medals.

I"m sure we can find fault up and down the chain of command. But if ever there was a war where the chief fault lies with politicians, this is it. We shouldn't be scapegoating the military for a war that was not conceived by the military.

Now we get to the meat of the subject, and as you might say: "I think you have it completely backward." First, nobody's scapegoating the military. The army has a can-do attitude imbued in their very being, and they must think positively about what their mission is. On the other hand, a four-star general with literally years of schooling, including a PhD, who has sworn, not to obey orders but to defend the Constitution, and who is in a key position with all America watching and listening is not "the military". The American people have a right to expect that such a person would be non-political, be effective and be honest. Unfortunately General Petraeus fails all three tests, which is why polls have indicated that most Americans don't even believe him. Sad.

"It's the fellows that go to West Point and are trained to think they're gods in uniform that I plan to take apart."--Harry S Truman

I saw Joe Biden on Chris Matthews's show tonight and I thought Biden was spot on

Geez, Dan, and you were doing so brilliantly.

Joe Biden's sickening slop that pretends he is backing the troops when he is sending them to their deaths by signing a blank check is not admirable in any way that I can see.

Joe Biden admits the occupation is disastrous in the way it is being handled. I disagree totally that we should be trying to engineer ethnic cleansing but at least I agree with Biden that the sectarian violence and anarchy is not something American troops should be trying to referee as they themselves become the targets.

And then Joe Biden signs a blank check to see more troops are killed. What kind of support is that? Don't American soldiers count for anything?

Best, Terry

from the web:
The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).
http://usmilitary.about.com/cs/militarylaw1/a/obeyingorders.htm

I feel about Gitlin the way conservatives must have felt about Saffire. He's losing it. Becoming a parody.

In this case for example, right off the top, he says: "It's come to this: a four-star general muses aloud about whether he is subject to civilian control."

Hello? The Executive is civilian too. And civilian checks and balances are supposed to provide a clear chain of command to the military. What is Gitlin clowning at?

Regardless, on the larger point, if the Executive gave orders in defiance of Congress, and it was clearly a black and white issue without any legal or popular confusion on the matter, then opposition would be nearly unanimous in opposing and probably impeaching. It would a be a huge crisis, but is supposed to be immediately resolved via impeachment.

In reality, it probably wouldn't be a black and white issue, and the public would probably be divided. Not just on the action, but on authority. There are always loopholes and wiggle room and ideological differences.

Which is precisely why it's never supposed to come to that, with the military deciding allegiance. And Gitlin seems to have bumbled into ceding that authority to them, as though our military was run retroactively by the a Nuremburg Chain of Command or something equally backwards.

Not far from: UNITED WE STAND!

Right on. It all needs to be taken back and laid right at the feet of the president.
Off the tops of our heads we all could name a half a dozen reasons why.

Petraeus was picked not for his motivations, but for (whatever the General's reasons) what the shrub could count on him to say. No guess work involved.

Kevin Russell Cook

Paragraph 1 of Tom's post has been the mainstream accepted legal understanding, not controversial except among the unitary Excecutive folks and a handful of others heretofore at the margins of power.

Well of course the Unitary executive theory is crackpot. But that's supposed to be decided by Congress and the Judiciary, not the military.

It's not the military commanders who are supposed to decide nuanced Constitutional matters.

If the President is truly giving unlawful orders, and the issue is clear enough to impeach, Congress is supposed to do so. That maintains clear chain of command for the military.

If the Congress and public can't decide, how can we expect Generals to? And do we really want to cede to the military that power and responsibility? No. There is no clause in the Constitution that the military decides when the civilian government can't. That's called a military dictatorship.

Gitlin really bungled this one. Apparently Gitlin doesn't do nuance or understand the constitution very well either.

Oh, quit your hysteria. The question is basically, "What would you do if you had contradictory sets of orders coming from different branches of government?" Asking a lawyer what the Constitution says is the right and smart answer. Do you really think everything coming out of Congress is clear enough to serve as field orders?

While there's not a direct equivalent in the open literature, it might be worth looking at some past examples of civilian control.

The Joint Chiefs, both less formal than today's JCS but also more autonomous, recommended that chemical warfare be used against the dug-in Japanese at Iwo Jima. FDR, in what may have been the only case in which he used a particular signature, wrote on the proposal All prior endorsements denied. Franklin D. Roosevelt, Commander-in-Chief.

Eisenhower overruled the JCS recommendations that the US support the French at Dien Bien Phu, using nuclear weapons if necessary. He also laid down the law to the Strategic Air Command that the National Command Authority (President and SecDef) were ultimately responsible for launching nuclear war, and there would either be White House level review of nuclear targeting or a lot of Air Force retirements.

General of the Army Douglas MacArthur, and the lesser known MG Edwin Walker, did not fight Presidential removal from command. Even George McClellan resigned his commission before running against Abraham Lincoln. With a possible exception of an incident in Maryland, I know of no US unit that mutinied in support of the Confederacy. Instead, people resigned, some in tears, to report to their state's forces.

MacArthur (and Patton, who had local command) were roundly condemned within the Army in following orders to break up the Bonus Marchers.

There's been a good deal of legislation that establishes the civilian authority as policy-level, not operational control. This was observed in 1991.
--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

kozmik,

Cut Todd a little slack, he's hardly "a parody", or clowning, or bumbling, except in your mind.

I've gone at it with Todd but that was because I was right, and you're not.

His remark about "civilian control" clearly applied to the Congress, the President in this case being the CinC and not a pure civilian. That's not so difficult to see, is it?

Regarding unlawful orders, they are to be disobeyed in the military. That's it, end of discussion. Petraeus blew it, because as Hoppy indicated, he's a suck-up. Impeachment (for high crimes and misdemeanors) is not a factor when it comes to military orders.

(I was kidding about being right. Well, half.)

I didn't regard Petraeus' answer as evasive. My sense was that he would consult his staff judge advocate to determine, for example, if a Presidential order to expend funds, after Congress had defunded, could get quite complex in its legality and getting an expert view would be wise. For example, the President does have a certain authority to transfer appropriated funds, and might cite that in an order. The standard manual on the Law of Land Warfare, the Geneva and Hague Conventions, and the Uniform Code of Military Justice do not speak directly to that point.

Not all lawyers are there to obfuscate. In the preparation for the invasion of Panama, a planning staff officer had written out rules of engagement that went on for pages. One military lawyer reduced them to a usable set of guidelines on a single card, with very clear definitions of responsibility of who could do what.

It shouldn't be hard for a SJA to clarify what Petraeus should do, not speaking generically as in his testimony, but in dealing with the actual wording of an order. The wording would be important, as, for example, whether it addressed using a source of funds that Congress had not defunded, and there was Presidential authority to use. That's unlikely but possible, and the SJA might well advise Petraeus to follow the sense of the Congressional action, based on the primacy of Article I of the Constitution.

In war, there are situations that have no right answers. A relative of mine was a naval aviator during the Korean War, and his experiences led him to PTSD and alcoholism in retirement. As a young pilot, there were tactical situations, very early in the war, where North Korean troops deliberately positioned themselves in the midst of refugees, firing at targets to the side, sometimes killing refugees as they did so. Those troops invariably fired on aircraft. Eventually, Don was ordered to return fire, even if the source was mixed with civilians. What was the right answer there? Had he not fired, the troops would have killed more civilians and friendly military personnel. When he fired, he knew he was killing soldiers, but also civilians. It tore at him for the rest of his life.

--
Howard

*equal opportunity offense to both extremes*

"Those who cannot remember the past are condemned to repeat it" [George Santayana]

I think there's support or opposition to Todd's statement depends on how you view Petraeus' motives.

If you think he'd consult his lawyer to find out whether he had to obey an illegal order, then Todd is clearly unhinged.

But if you think Petraeus would consult his lawyer to find out whether he could legally obey an illegal order, which I think is Todd's reading of the man, then Todd is clearly not unhinged.

Whichever interpretation you take says more about you than about Todd.

But I would point out that Petraeus' history of rosy predictions and questionable statistics supports the latter interpretation over the former.

I understand what you're saying, but a reasonable essay on Petraeus' facts, which are in dispute; and a knowledgeable discussion of his points seem to be lost on the many people who still believe that Saddam Hussain plotted the 911 attacks. 

What if the army's "facts" showed that Iraq is actually worse off, as the majority of Iraqis believe; does anyone believe that Petraeus would have presented that view?

Sorry, if awol Bush can be ommander-in-chief while Kerry's purple heart is ridiculed; if John Edwards can be called a "fag" for the amusement and glee of the republicans; then a general who spins for Bush can just deal with the school-yard taunt of "general betray-us." 

Too bad Tommy Franks name didn't rhyme with "screw-up."

Jan