The Oath

In recent weeks, my thoughts have frequently turned toward a question that is neither political nor partisan but lies at the heart of almost every decision we make in life and reveals everything about us. I am speaking about oaths--or more precisely the ideas, institutions, and principles to which we have sworn our fealty. Now I am not simply talking about oaths in a legalistic sense such as swearing on a bible to tell the truth, or upholding the Constitution, although these are to be sure among the gravest oaths we may take in our lives. But there are many others we may make of equal or lesser gravity, though surely no less important as demonstrations of our beliefs and loyalties.

Probably the first oath we take as children is to our country when we pledge allegiance, although the weight of the oath, however solemn the moment, may be lost on us at a young age. Like other young boys I was a scout and we too embraced oaths. Those most familiar to all who belonged are the scout oath and law--together, a promise to obey God and country and follow the ideals and behaviors deemed worthy by scouting's founders.

Some scouts also took another oath if they were so fortunate as to be selected for an honor society known as the Order of the Arrow. This organization which recognized scouts who exemplified the highest standards of conduct, was considered by many the greatest form of recognition, especially for young men, because it was awarded by one's peers. Although some today regard it as a form of cultural appropriation, the rituals that accompanied selection and induction were ostensibly based on Native American traditions and they were imbued with a sense of nobility and sacrifice. They are appropriately known as the Ordeal, and were intended to instill both a sense of tradition and establish a moral high ground.

I bring this up in the context of the present because we ask men and women in our country who serve as law enforcement officers and members of the military, to swear oaths --to uphold our laws, protect our citizens and most critically, support the Constitution. Both are also sworn to respect a chain of command and either civil or military codes of conduct. Among other things these codes require absolute obedience to the orders of their superiors, unless, and this is the crux of the matter, they are unlawful. While there is no question as to the requirements, which in the case of the military extends from the President on down --the pivotal language stipulates that one must follow those orders "in accordance with the laws of the United States of America". It is important to note here that what is in accordance with the laws of our country is not, as we may have thought, an established fact, but subject to interpretations and changes in precedent as we have also seen rather dramatically over the past few years.

Now anyone who has given even a moment's thought to that stipulation must arrive at an inescapable conclusion: what is lawful? Not to put too fine a point on it, but how is the individual to decide in a moment of crisis, in a fluid situation and when confronted with a circumstance, that their actions comply with the law and with their obligations to their fellow human beings?

At the risk of over simplifying this question that courts and lawmakers have long debated, the consequence of choice--whether to follow an order or defy it--carries with it the possibility of prison and dishonor if a tribunal does not subsequently support an individual's decision. These men and women who serve are not lawyers, not constitutionalists, but judges nonetheless--because they must adjudicate circumstances on a daily basis, and as we are witnessing, not just in wartime.

Which brings us to the use of the military in our homeland. The Posse Comitatus Act --surely a tortured bit of law, attempts to spell out those situations where the military may be required to act as law enforcement agents within our borders. But as legal scholars have observed it too is fraught with language that ultimately rests on interpretation by commanders and the individual soldier, if not the highest court in our land. What's more, how is any individual to understand their obligations when the law--at least as far as the Constitution --the highest authority--is routinely ignored?

In the aftermath of WW2 our country and others tried and sentenced 'enemy' commanders, officers, civilian authorities and ordinary civilians for acts against humanity. Many pleaded in their defense that they were merely following orders, which though it may be factual nevertheless did not lead to exoneration, so great were their crimes judged. It follows that if the highest authorities of a nation act unlawfully, then every action taken in accordance with their orders is itself unlawful.

The dilemma is not a new one. The ancient Greeks recognized the shifting foundations that underlie oaths. In the play Medea, Euripides says: "Gone is the trust to be placed in oaths; I cannot understand if the Gods you swore by then no longer rule, or men live by new standards." To whom or what do we swear our oath today?