Walter Stewart (Major General, US Army, retired)

My essay explains why America is losing its wars and offers a simple solution – one requiring nothing more than moral courage on the part of our most senior military officers.

1.  America is losing its wars because they are unconstitutional to begin with. They are unconstitutional because they are undeclared.

If America’s wars are not worth formal Congressional declarations, which act to unite the American people, they are by that fact not worth fighting.  However, in the classic definition of insanity, America’s leaders keep doing the same thing over and over – fighting undeclared and unnecessary wars without rallying the support of the people – expecting different results.

2.  Strategic-level commissioned officers who swear an oath to support and defend the U.S. Constitution have an obligation to protest these wars.  However, none have. Indeed, our most senior officers have even misstated their oaths, suggesting they are sworn to obey the president rather than to defend the Constitution.  In the process, they fall prey to a version of the Nuremberg Defense of “I was just following orders.”

Even when senior officers recognize the folly and illegality of America’s wars, they refuse to resign in protest.  Why?  Because they convince themselves they can better effect change within the system.  Or they conclude they are beholden by civilian authority to follow orders.  Or they believe that resignation would be disruptive and disloyal.  But such excuses are corrosive to their oath of office, an oath that officers – especially the most senior – must find the personal integrity and moral courage to follow.

3.  Until America returns to declared wars by Congress that have the support of the people, America will continue to lose its wars, further weakening itself while sowing the seeds for even more unconstitutional — and unwinnable — wars.

Discussion

In the aftermath of Pearl Harbor on December 7, 1941, the president asked Congress for a Declaration of War, got it, and began to steel the nation for the sacrifices necessary for victory.  In the aftermath of September 11, 2001, the president cowed Congress into ceding its war-making powers (in the form of an authorization for the use of military force), sent the military into indecisive action in Afghanistan, declared war on a country uninvolved in the 9/11 attacks (Iraq), and sent the American people to shop.

Well into its second decade, the undeclared and undefined “Global War on Terror” has yet to gain any measure of security for America’s profligate expenditure of lives and treasure.

The framers of the U.S. Constitution, establishing our country as a republic, wanted no part of a system that codified the executive as the decider of war and peace.  As James Madison wrote:

Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded.  They are specifically barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting law.

In the general distribution of powers, we find that of declaring war expressly vested in the Congress, where every other legislative power is declared to be vested, and without any other qualification than what is common to every other legislative act.  The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature.

War is a legislative power.  Repeat that – again and again – and ask yourself why our leaders persist in perverting the clear intent of framers like James Madison.

The Vietnam Perversion

“Reports circulated that my [congressional] testimony had provoked a near revolt among the [military] chiefs.  I doubt it.”^[i]

                            —Robert S. McNamara, Secretary of Defense (1961-1968)

The moral obligations of senior leaders are spelled out in service guides such as FM 22-103 (Leadership and Command at Senior Levels).^[ii]  With this in mind, one wonders why no chief of service or Chairman of the Joint Chiefs has used the “direct and indirect influence” of his position to support the Constitution by demanding wars be declared by Congress.

This would be no “revolt” (as the press would label it), but a principled exercise of duties inherent to their offices alone, and if the few remaining years of a long career are sacrificed, so be it.

In the strategic void that was and is Iraq and Afghanistan, it is the sacrifices made by young troops that scale those of seniors, but it is nonsense to suppose that lower grade officers abandoning careers in protest might effect significant change.  Who now remembers former Marine and State Department officer Matthew P. Hoh resigning in September 2009 over his lost confidence in the strategic purposes of the United States presence in Afghanistan? And even if Hoh is remembered, the moral authority his action brought is that of the proverbial knife to a gunfight.

To imagine something greater, we must go back to the Vietnam War and the documented “almost” of a former Chief of Staff of the Army.  One might think that subsequent chiefs and chairmen know this history, but judging from years of silence over the lack of strategic focus in our Global War on Terror, one knows they do not.

Historian Lewis Sorley, in his book “Honorable Warrior: General Harold K. Johnson and the Ethics of Command,” details a near-protest resignation that had it taken place would have saved thousands from death in Vietnam, preserved our republican army, and perhaps of greatest consequence, forced Congress to do its duty in that war and future wars.^[iii]

In his last years, Johnson [Chief of Staff, US Army, 1964-1968] revisited an issue that had long plagued him: resignation in protest.  Clearly, Johnson’s personal example of principled leadership constituted one of the most meaningful contributions to the Army he led in those troubled times.  He characteristically held himself to extremely demanding standards, and sometimes concluded that he did not measure up.  During the course of his stewardship as Chief of Staff, he had on a number of occasions contemplated resignation in protest, but each time he drew back, concluding that he could do more good by continuing to serve.^[iv]

Sorely goes on the report how Johnson, late in life, was asked by a friend if he “had to live…life over again, what would you do different?”  In answer, Johnson returned to his moral failure:

I remember the day I was ready to go over to the Oval Office and give my four stars to the President and tell him, “You have refused to tell the country they cannot fight a war without mobilization; you have required me to send men into battle with little hope of their ultimate victory; and you have forced us in the military to violate almost every one of the principles of war in Vietnam.  Therefore, I resign and will hold a press conference after I walk out of your door.”

Then, added Johnson with a look of anguish, “I made the typical mistake of believing I could do more for the country and Army if I stayed in than if I got out.  I am now going to my grave with that lapse in moral courage on my back.”^[v]

We would have to go back to George Washington’s accumulated militia and Continental Army service to find an Army chief who experienced more than a fraction of the hardships and risks experienced by Harold K. Johnson.  And for both, at the end, it was not physical courage that mattered, but moral.

Imagining a Different Path to War in Iraq after 9/11

For many veterans of the Vietnam War, and for others who have studied its history, the protest resignation of service chiefs and/or chairmen over morally repugnant or unconstitutional orders is an unfulfilled dream.  So too for Iraq today, for there have been no resignations by senior officers over the Executive decision to wage undeclared war.  With the consequences of this misbegotten war and the Afghan War accelerating the economic, military, and social decline of the nation, those at the pinnacle of uniformed success follow an unwritten rule of silence into the comfort of lifelong pensions and the sinecure of military-industrial entities that prosper only so long as the nation prospers.

How might things have been different with Iraq (and, indirectly, Afghanistan and al Qaeda) if even one or two of America’s senior generals had made a stand for the Constitution by insisting there would be a declaration of war or an immediate post-resignation news conference?^[vi]  We can speculate that OSD (Office of the Secretary of Defense) and the White House would have gone into crisis mode followed by immediate gaming as to whether the protestor or protestors could be fired, replacements found, and all silenced as to what was taking place.  While the first of these actions is certain and the second all too probable, the third is not: the very “noise” crisis-managers would seek to avoid would be forced, with Congressional hearings certain to raise the crescendo.

Continuing, perhaps as a result of this moral stand, the president may have decided war with Iraq was unnecessary, or, firm in his convictions and reminded of his own oath, he gathers his reasons, as others before him have done, and asks Congress for a formal declaration of war.  Summarizing his appeal, he might even use words like this:

Whether the United States shall continue passive under these progressive usurpations and accumulating wrongs, or opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events…is a solemn question which the Constitution wisely confides to the legislative department of the Government.  In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.^[vii]

Hooah!  As the world’s greatest deliberative body acts on its most consequential duty, the Constitution gets a shot of adrenalin.  One would have hoped the collective vision of the 535 men and women in Congress would have seen through the phoniness of Ahmed Chalabi, Curveball, and specious “yellow cake” and terrorist support claims.  The few service veterans among the 535, schooled in the military arts, would surely have examined the possibility of strategic disinformation aimed at duping the United States into doing what others could not: overthrow Saddam Hussein.

And as for Hussein himself – an interested observer who would have known the American people have never lost a declared war^[viii] — he might have approached Congress with reminders of his secularism in a neighborhood of Islamic theocracies; sent Iraqi Christians to testify to the same; compared Iraq’s opportunities for females with fundamentalist Muslim states such as Saudi Arabia; brought out the picture of his warm greeting to presidential envoy Donald Rumsfeld in the 1980s; called attention to the fact that Iraq is a check on Iran, the reason for the Rumsfeld picture; and even acquiesced to opening his country to as many weapons inspectors as we would like to send.^[ix]

But enough speculation about what might have come from courageous senior officers bearing true faith and allegiance to the Constitution of the United States.  Reality is more revealing.  Let’s take a look at what two very senior officers had to say about their “duty.”

I Must Follow Orders: Senior Military Officers Misstating their Constitutional Duty

On October 25, 2007, Admiral Mike Mullen, US Navy, Chairman, Joint Chiefs of Staff, appeared at a function sponsored by the Center for a New American Security.  He fielded the following question related to a scenario proposing a protest resignation by senior officers:

Questioner:  I was wondering if you had seen the recent article … calling for the resignation of generals in the future should they feel that the civilian leadership has chosen a course of action that is immoral or unconstitutional with regards to military action, and I was wondering what your thoughts were on that and how you would treat men under your leadership, generals, that there was the general’s revolt earlier this year, what your thoughts were on that, what is the role of the Joint Chiefs of Staff in preventing another – preventing military action that could be possibly immoral or unconstitutional[?]

Admiral Mullen:  I don’t think I read that article, but I have certainly read a few about it, about that issue.

I approach this from relatively simply.  I think that civilian control [of the] military is vital.  It is a bedrock issue for our country.  It has worked for some 231 years, and that we need to pay an awful lot of attention to its preservation, and that when we walk off of that, whoever we are, we do so and create high risks, and it is very dangerous for us.  That is above all else.

I believe that men and women who serve who disagree with our civilian leaders on a policy, whatever it might be, that their statement for the record, if they are unable to stay or if they get to a point where they disagree so strongly, that their statement for the record is that they vote with their feet and leave, and they should.  And I feel very strongly about both aspects of that and would leave it exactly at that.

I think the standards of integrity and courage and leadership that we represent in the United States military are so vital and precious that we have to ensure that we don’t in any way, shape or form jeopardize that.

We all raise our right hand, swear to support the Constitution and carry out the orders we are given, and we should do that, and if we can’t do that, then we should leave. ^[x] 

There’s a tension in Mullen’s reply between duty to the Republic and the Constitution versus obedience to the Commander-in-Chief and subservience to orders.  But there shouldn’t be.  A federal officer’s oath is clear: it’s the Constitution that binds him, and no other authority.

Lieutenant General Ricardo Sanchez, U.S. Army retired, stated his confusion more baldly.  Appearing on C-Span’s Washington Journal on May 7, 2008, Sanchez stated that “In the case of an officer, he swears to obey the orders of the president.”

Echoing General Johnson’s rational for not acting during Vietnam, Sanchez went on to relate how he threatened resignation when ordered to withdraw from Fallujah under fire but relented after concluding the action would place his “Soldiers and Marines in considerably increased risk.”

The fog of war may back officers in the battlespace, but it’s King George III (and similar tyrants) who backs those thinking themselves “sworn to obey.”

Admittedly, two examples do not provide a conclusive proof.  But how often do uniformed leaders who held or hold our most consequential positions during a time of war reach to their oaths?  Mullen and Sanchez did, and neither got it fully right.

The Need for Moral Courage

There is an insidious message here to an officer corps that is ever mindful that the Constitution makes no promotions: You are sworn to carry out orders.  Chairmen and Chiefs, other than entrée into the retirement riches of the military-industrial complex, what do you stand for?^[xi]

Senior officers in the Vietnam War rocked no boats, saw thousands of brothers (and a few sisters) to their deaths, knowing there was little hope of ultimate victory.  They lost a war.  Even worse, they lost America’s citizen army that history marks as the essence of republican virtue.^[xii]  The strategic consequences flowing from this failure of “patriotic self-abnegation” now bleeds us on the battlefield and everywhere else.

As we debate similarities between Vietnam and the asymmetric glue traps that were and are Iraq and Afghanistan (and their future equivalents), there are factors in lock-step: tactical-level troops going about their bloody business with valor and determination, and strategic-level leaders collapsed into the operational and tactical.  And when pressed on it, now as then, in large measure, it is the “sworn to obey” mindset of immediate action followed by buck-passing.  We either expunge this from the ranks or become the failed defenders of a failed nation.

Torn by the greatest moral dilemma ever faced by an American president — ending slavery by the easy impermanence of executive order or the difficult permanence of due process — Lincoln did not waiver in his allegiance to the Constitution.  We now seek men and women possessed of such faith to lead us in a new century.  In this, we could not do better than plumb the ranks of young service men and women moving into uniformed and non-uniformed senior leadership.  Sworn to the Constitution and better schooled in what that means, these patriots must find the courage to do what their predecessors would not.

Walt Stewart rose from a private in the army of regulars, reservists, and draftees raised to fight in Vietnam, to a major general serving with the thousands of citizen-soldiers of the 28th Infantry Division, Pennsylvania Army National Guard.  Now retired, Stewart is a strong advocate for a citizen-military and a saner world.

Endnotes

[i] Robert S. McNamara, In Retrospect: The tragedy and lessons of Vietnam, (New York, New York: Vintage Books, 1996) 291.

[ii] FM 22-103, Leadership and Command at Senior Levels, June 1987, consists of seven chapters and six annexes.  Of its many paragraphs only three reference the Constitution.  We reap what we sow.

[iii] In an interview conducted on 21 May 1974, in the context of Congressional impeachment actions following “Watergate,” General Johnson gave his thoughts on the state of Congress: “Congress has reasserted a degree of equality, and at the same time, I think this is a paradox, they sort of, at least right now in May of 1974, have not accepted fully the responsibility that goes along with the authority they are trying to exert.  They are not known to carry a full share of responsibility, they would rather shift it elsewhere.”  (Oral History Interview Number 15 with General Harold K. Johnson, US Army, Retired.  The interview was conducted by LTC James B. Agnew and is part of the Johnson File, Military History Institute, Carlisle, PA.)

[iv] Lewis Sorley, Honorable warrior: General Harold K. Johnson and the ethics of command, (Lawrence, Kansas: University Press of Kansas, 1998) 303.

[v] Ibid, 304.

[vi] Defenders of the Executive decision to invade Iraq will claim the blanket war-making authority Congress granted President George W. Bush was a “declaration.”  Only when solemn oaths and solemn processes are no longer solemn!  There is no middle ground between the rule of law and the rule of men.

[vii] From President James Madison’s war message to Congress, June 1, 1812.  Madison the president practiced what Madison the Framer preached.

[viii] The Second Continental Congress made our first “declaration of war” and passed it into law on July 4, 1776.  Lord Admiral Richard Howe, commissioned by King George III to offer peace to the colonies, in a September 11, 1776, meeting with a congressional committee led by Benjamin Franklin notes its effect: “That they themselves [the colonials] had changed the ground since he left England by their Declaration of Independence, which, if it could not be got over, precluded him from all Treaty, as they must know, and he had explicitly said so in his Letter to Dr. Franklin, that he had not, nor did he expect ever to have, Powers to consider the Colonies in the light of Independent States.”  The meeting was recorded by Howe’s secretary, Henry Strachey.  With the American Army driven from Long Island only days before, Howe’s was a position of strength the Declaration of Independence negated.

[ix] Saddam Hussein was a tyrant, but for part of his reign he was “our tyrant.”  Also, under his forced secularism, a Christian community founded by St. Thomas the Apostle prospered.  Since our invasion, this community is dead, under threat of death, ordered to convert, paying the Jizya, or displaced.  And Iraq’s constitution, written under our direction, assures the inevitable rule of Islamic law (Sharia).  That there has been so little attention to these strategic failures is astonishing.

[x] Mullen’s presentation, “Challenges and Opportunities of the Global Strategic Landscape” was moderated by Michele Flournoy, covered by C-Span, and transcribed by Malloy Transcription Service.  Surprisingly, Admiral Mullen seemed poorly prepared to answer “the” senior leader question from the Vietnam War.  That the Chairman of the JCS believes himself sworn to obey is indicative of erosion at the very top of our military leadership.

[xi] This is a tough question, but in the interest of the “standards of integrity and courage and leadership” seniors represent, and how the oath is the foundation of all three, what other is there?  That a “sworn to obey” mindset trumps integrity, courage, and leadership is evident in the American people being fed, year after year, nonsense about Iraq and Afghanistan.  For example: General Richard Myers, in 2005, trumpeting “100 Iraqi battalions equipped and trained,” followed, in 2006, by General Peter Pace solemnly stating that in Iraq things are “going very, very well.”  In the new media environment, seniors no longer speak solely to cowed press pools, news shows, and think-tank audiences, but to bloggers and E-press skeptics weighing their words against open source information that might prove otherwise.

[xii] Here I refer to the end of the draft, a subject I address in the July-August 2006 edition of Military Review: “The All-Volunteer Army: Can We Still Claim Success?”  Adrian R. Lewis, Ph.D., adds his voice in the November-December 2009 edition: Conscription, the Republic and America’s Future.  Lewis asks, “Are we following the path to decline paved by the Romans?”  My answer is not only do we follow it, but we near its end. (Those who dispute this conclusion must consider “the most powerful nation the world has ever known” has been brought to military despair by an enemy that never amounted to more than lightly armed irregulars using improvised explosive devices to advantage.)  As for a renewal of conscription?  Only when Chinese frigates sit locked and loaded in New York Harbor demanding hard assets in exchange for worthless Federal Reserve notes.