Quote:
Originally Posted by HarryT
But you're talking "theory", Ralph. Let's take a practical example: I believe that the US constitution explicitly prohibits detention without trial, and yet that is precisely what has been going on for the last few years at Guantanemo Bay. The military forces involved did not refuse to obey their orders on the grounds that they were unconstitutional, did they?
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Harry, your example is not a good one, because it assumes that the Constitutional prohibition applies to the detainees, that your interpretation is generally agreed to by members of the military, and that the military expresses its disagreement with orders by refusing to obey them.
Your reading of the Constitution is not, in my view, and that of four of the nine justices on the Supreme Court, correct. The 6th Amendment to the Constitution says: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." Note the words "criminal prosecutions." Are the detainees held at Guantanamo "criminals?" Not that I can see. I say this not to argue the point, but simply to point out that the question is a close one, not a clear one, and therefore your putting it forward as an example is not good for that reason.
Then there's the question of whether the military thinks that the detainees have a legal right to a trial. Although I have not served in the military, my father was a career soldier, and I grew up on military bases and within the context of the career military culture. I think I'm on pretty solid grounds that the career military regards the detainees as enemies, not criminals entitled to Constitutional rights. So your example is poorly chosen, because it assumes - incorrectly in my view - that the military agrees with your interpretation of the right to trial.
And finally, there is the question of how the American military reacts to unconstitutional orders. First, let me say that in addition to my background as a military dependent, I am also a lawyer and a student of American political and military history.
Our military is subordinate to civilian control. It does not "refuse to obey orders." Rather, what happens when the military disagrees with orders is that the officers resign. This is what happened in the American Civil War, when Southern officers, like Robert E. Lee, resigned their commissions in the U.S. Army rather than take arms against succession, which they believed to be constitutional.
Had the military, or any substantial portion of it, considered that the detention of prisoners at Guantanamo violated the Constitution, what would have happened is that officers appointed to command positions at the base would have submitted their resignations.
In this case, your example doesn't work because you and - maybe - Ralph seem to be assuming that the military in this country would overthrow a civilian government that was acting in an unconstitutional fashion.
But it wouldn't. It would just resign in sufficient numbers at the upper level of the officer corps that the government would find itself unable to function, militarily. The American people would take over from there.