Support the troops: renewing angst over Massachusetts v. Laird and endowing service members with effectual First and Fifth Amendment rights.

• Author: Bejesky, Robert
• Position: Introduction through III. Large-Scale Harm Faced by Troops B. Limitations on Liability, p 447-479

1. INTRODUCTION II. POLITICAL AUTHORITY AND DERIVATIVE DEBATE A. The Authorization to Use Force B. Competing Positions 1. Debates in Congress Over Supporting the Troops 2. Societal Turbulence Over Defining the Meaning of "Support the Troops" III. LARGE-SCALE HARM FACED BY TROOPS A. Well-Known Risks. B. Limitations on Liability C. Posttraumatic Stress Disorder D. Exacerbating Troop Injuries? Depleted Uranium Exposure E. Meeting Military Need 1. Recruitment 2. Sliding Supply After the Iraq War IV. RESTRICTIONS ON THE RIGHTS OF U.S. TROOPS A. Introduction B. Culture, Hierarchy, and Mandatory Directives C. The Context of Conscientious Objection V. CONCLUSION I. INTRODUCTION

   In May 2014, scandal raged in Congress over delays in treatment and medical malpractice that may have led to over one hundred deaths of patients in Veteran Administration (VA) facilities, and over the possible existence of "secret lists" and the shredding of documents that sought to hide these failures. (1) Republican John McCain called for a criminal investigation and Speaker of the House John Boehner stated that "[t]he real issue here is that, the president is the one who should be held accountable." (2) McCain and Boehner advance credible positions. The shameful and lamentable events unfolded due to a VA system that confronts a several-month-long scheduling backlog for medical treatment, (3) and the backlog was a byproduct of recent battle injuries. (4)

   Over 1.7 million U.S. troops were deployed to Afghanistan and Iraq during the recent wars. (5) The war in Afghanistan was not so contentious, but the Iraq War was notably controversial because Congress granted an authorization for the use of military force (AUMF-Iraq) to purge Iraq of an alleged arsenal of prohibited weapons that the Bush Administration avowed existed inside Iraq. (6) It was later verified that no such arsenal existed. (7) Professors

   Ackerman and Hathaway befittingly punctuate that the AUMF-Iraq was a limited authorization to use force conditioned on there being an actual imminent threat, which means that when the Bush White House began offering additional rationalizations after the invasion, particularly of humanitarian intervention, "such talk was blatantly inconsistent with the plain language of the 2002 resolution." (8) The humanitarian exigency characterization was baseless and after the Senate Select Committee on Intelligence (SSCI) completed its five-year investigation of the false allegations that led to the Iraq War, the SSCI chair remarked, "the Bush Administration led the nation to war under false pretenses." (9)

   The international community condemned the attack and several years of regularly conducted polls confirmed that approximately 80% of Iraqis opposed continuing occupation. (10) In 2007, ABC News surveyed the congresspersons who had voted for the AUMF-Iraq in October 2002 and discovered that a substantial percentage reversed their positions in hindsight, and therefore, the resolution would have been rejected had there been more accurate information about the alleged threat. (11) The war and occupation resulted in over 32,000 U.S. military injuries, 4488 U.S. military deaths, 134,000 Iraqi civilian deaths, and a $2.2 trillion dollar cost to American taxpayers. (12) President Obama understood the American and international backlash, (13) and in the January 2010 State of the Union Address he promised to withdraw all combat troops within eight months. (14) U.S. troops were withdrawn by the end of 2011. (15)

   This article is devoted to the advocacy of former U.S. troops and their families who faced hardships due to the war and dissented based on their discernment of potentially faulty constitutional war powers. Jurisprudence indicates that U.S. troops lack firm constitutional rights even when there may be defects in the exercise of constitutional powers. (16) This article revisits questions that were raised over the constitutionality of the Vietnam War, (17) with new facts, and asks whether possible constitutional flaws should endow American troops with entrenched rights to voice their opinions under the First Amendment and to not "be deprived of life, liberty, or property, without due process of law" under the Fifth Amendment. (18) Based on the facts of the Iraq War, this article queries whether the majority's denial of Massachusetts' challenge (on behalf of conscripts) to the constitutionality of the Vietnam War in Massachusetts v. Laird (19) is less compelling on principle than Justice Douglas' dissent, which emphasized the illogic of valuing property rights in the Fifth Amendment more than the right to "life and liberty" of American troops. (20)

   Part II imparts a synopsis of the public and congressional debate prior to and during the Iraq War to emphasize the intensifying controversy over the invasion. Part III tenders a few justifications for elevating the constitutional rights of troops above a decumbent status, including the prospect of exposure to life-threatening injury, the tension lodged on the military disability system, the prevalence of posttraumatic stress syndrome, the controversy surrounding ill-health effects from depleted uranium, and the misfortune that emerged with military recruitment and stop-loss orders. Part IV concerns how dissent to a war premised on controvertible legality and a war that inflicted an enervating toll on American troops can be mired by military rules of general applicability. Part V concludes by questioning whether denying genuine First and Fifth Amendment rights to American troops when they are dictated to endure costs in a war driven by political artifice is immoral and un-American.

2. POLITICAL AUTHORITY AND DERIVATIVE DEBATE

   1. The Authorization to Use Force

      The public agenda setting for war with Iraq began with media announcements of war plans and discussions of troop deployments in mid-2002, (21) but the pressure on Congress and the United Nations fully reared during an American President and British Prime Minister news conference on September 7, 2002, and the aggressive rhetoric continued on the next day with Defense Secretary Rumsfeld, Vice President Cheney, National Security Advisor Rice, and Secretary of State Powell circulating the Sunday political talk shows and offering new security threat claims about Iraq. (22) The President addressed the United Nations General Assembly on September 12, 2002, with the allegations about Iraq, such that emotions of indignation and peril over memories and discourse involving September 11 converged with Iraqi weapons claims. (23) At the same time, the President released a national security strategy, which proclaimed a right to preemptively attack other countries, (24) and lobbied Congress for an authorization to use force against Iraq. (25) Republicans proved more willing to back military action and some were not overly concerned about having evidence of wrongdoing or weapons of mass destruction (WMDs) to justify the use of force, (26) while Democrats were somewhat more reluctant to commit to an American military action against Iraq. (27) Democrats wanted the Security Council to act first, but instead, as a New York Times editorial explained, "[t]he haste" in pressing for an authorization to use force was "clearly motivated by campaign politics" because "Republicans [were] already running attack ads against Democrats on Iraq." (28)

      The intensity of agenda setting was later summarized in a study produced by the Center for Public Integrity, which found that during September 2002, top Bush administration officials made approximately 300% more false statements about threats from Iraq than in the previous month. (29) Observing how the Bush Administration's threat claims intensified and were being exploited to spur congressional action, SSCI member Dick Durbin addressed a letter to CIA Director George Tenet on September 9, 2002, to "direct the production" of a national intelligence estimate (NIE) for Congress. (30) An NIE had never been produced that was devoted to Iraqi weapons of mass destruction programs, (31) and the most recent official determinations had been produced by United Nations weapons inspectors who departed Iraq in 1998 and acknowledged that they lacked evidence of Iraq possessing prohibited weapon programs. (32) The SSCI later indicated that the U.S. Intelligence Community (IC) was devoid of intelligence sources on Iraqi weapons systems after...