[Congressional Record Volume 144, Number 141 (Friday, October 9, 1998)]
[Extensions of Remarks]
[Pages E1978-E1979]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          EXTENSION OF REMARKS

                                 ______
                                 

                           HON. BOB SCHAFFER

                              of colorado

                    in the house of representatives

                       Thursday, October 8, 1998

  Mr. BOB SCHAFFER of Colorado. Mr. Speaker, even nations need a soul. 
Indeed great countries establish traditions, institutions, and civil 
codes to reflect the integrity of their people. Taken together, these 
attributes give insight to a nation's character, and as such, signal 
the dignity of her people.
  The United States Navy is but one American institution charged with 
defending our borders and maintaining our dignity. Among the Navy's 
first officers is Joseph E. Schmitz who has devoted considerable 
thought to the heavy matters we weigh today in Congress.
  I hereby submit for the Record, Mr. Schmitz's scholarly analysis of 
current conditions created by the Commander-in-Chief. I furthermore 
commend the conclusions of Mr. Schmitz to my colleagues and beg they 
prove persuasive in resolving the great question before us.

           When the Commander-In-Chief Misleads, Who Follows?


             or What Do We Tell The Troops Now, Commander?

                       (By Joseph E. Schmitz \1\)
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     \1\ Mr. Schmitz graduated with distinction from the U.S. 
     Naval Academy and earned his Doctor of Jurisprudence from 
     Stanford Law School. He is currently an attorney in 
     Washington D.C. and an Adjunct Professor of Law at Georgetown 
     University Law Center, where he teaches an advanced 
     constitutional law seminar on ``Legislation of Morality: 
     Constitutional and Practical Considerations'' (the syllabus 
     for which is available by request to 
     [email protected]).
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       How can a commanding officer of a warship ask an 18-year-
     old sailor to risk his life in the line of duty if the 
     commander is not willing to risk his own personal ambitions 
     for honor? He can't. A military leader must be the example, 
     first and foremost. Congress should not lose sight of this 
     reality of military leadership as it deliberates over the 
     recent report of the Independent Counsel.
       While the Constitution empowers Congress ``To make Rules 
     for the Government and Regulation of the land and naval 
     Forces,'' each commander is responsible for enforcing these 
     rules within his or her own command. At the same time, the 
     President as Commander-in-Chief is ultimately responsible for 
     enforcing these rules throughout--as well as for the overall 
     good order and discipline of --the United States Armed 
     Forces.
       Technical legal arguments that the Uniform Code of Military 
     Justice may not apply to the Commander-in-Chief miss the 
     point. At issue are some of the first principles upon which 
     our colonial forefathers pledged their ``sacred honor,'' 
     among which is Equal Justice Under Law, requiring that even 
     the President be accountable to the Rule of Law (as opposed 
     to the rule of men). By definition, the Rule of Law cannot be 
     influenced by public opinion, whether through public opinion 
     polls or otherwise.
       By virtue of an Act of Congress in 1956, recodifying the 
     First Article of the 1775 ``Rules for the Regulation of the 
     Navy of the United Colonies of North-America'' into what is 
     still public--albeit not-well-publicized--law, ``All 
     commanding officers and others in authority in the naval 
     service are required to show in themselves a good example of 
     virtue, honor, patriotism, and subordination; . . . to guard 
     against and suppress all dissolute and immoral practices, and 
     to correct, according to the laws and regulations of the 
     Navy, all persons who are guilty of them.'' \2\ This long-
     standing moral edict by Congress exemplifies the central 
     theme of the ``Legislation of Morality'' seminar this author 
     conducts at Georgetown University Law Center: democratically-
     enacted legislation is the societal analog to an individual's 
     conscience formation process. At the national level, Congress 
     promulgates the national conscience through public laws, 
     essentially announcing what is right and what is wrong for 
     the nation. As with the relationship between individual 
     conscience and behavior, this societal conscience formation 
     process is distinct from, albeit integrally related to, the 
     enforcement process.
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     \2\ 10 U.S.C. Sec. 5947. The 1775 version reads: ``ART. 1. 
     The Commanders of all ships and vessels belonging to the 
     THIRTEEN UNITED COLONIES, are strictly required to shew in 
     themselves a good example of honor and virtue to their 
     officers and men, and to be vigilant in inspecting the 
     behaviour of all such as are under them, and to 
     discountenance and suppress all dissolute, immoral and 
     disorderly practices; and also, such as are contrary to the 
     rules of discipline and obedience, and to correct those who 
     are guilty of the same according to the usage of the sea'' 
     (www.history.navy.mil).
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       In his August 17, 1998, nationally-televised speech, the 
     President purported to accept full responsibility for 
     misleading the nation about his ``inappropriate'' 
     relationship with a White House intern. This confession by 
     the Commander-in-Chief to both dishonorable and immoral 
     conduct in the Oval Office, and the subsequent release of the 
     Independent Counsel's Report and video tape, among other 
     things, have amplified the need for all military leaders to 
     uphold the moral authority of the First Article of the 1775 
     Navy Regulations, sometimes referred to as the ``First 
     Principle of the American Military.''
       In the ``Code of Conduct for Members of the United States 
     Armed Force,'' like all other members of the Armed Forces, I 
     was admonished to ``never forget that I am an American, 
     fighting for freedom, responsible for any actions, and 
     dedicated to the principles which made my country free.'' 
     Every first-year law student learns that two of those 
     principles are accountability ``according to law'' and ``no 
     man is above the law.'' According to the text of the 
     Constitution, even an impeached President, after he is 
     convicted by the Senate and removed from office for 
     ``treason, bribery, or other high crimes and misdemeanors'' 
     (U.S. Const., art. II, sec. 4), ``shall nevertheless be 
     liable and subject to indictment, trial, judgment and 
     punishment, according to law.'' U.S. Const., art I, sec. 3.
       A few years ago, as the Naval Academy was attempting to 
     deal with the worst cheating scandal in its 150-year history, 
     a committee hearing on Capitol Hill featured a telling 
     colloquy between Senator Robert C. Byrd and Rear Admiral 
     Thomas Lynch, then Superintendent of the Naval Academy. At 
     the beginning of the colloquy, Senator Byrd asked Admiral 
     Lynch whether he was familiar with the adage, ``You rate what 
     you skate.'' Of course the Admiral was. But neither the 
     Senator nor the Admiral discussed the adage further.
       This Naval Academy adage is tantamount to a rule that 
     ``while officers are responsible for personal choices, they 
     need not be accountable for poor choices unless caught.'' 
     Such a mixed moral message fundamentally undermines the 
     formation of character traits such as honesty, reliability, 
     moral courage, and good judgment, upon which rest not only 
     the tax dollars of hard-working Americans, but the lives of 
     many Americans as well.
       A crisis of military discipline looms if any commander, by 
     this words and actions, promotes and adage that ``you rate 
     what you get away with, and even if you're caught, it's OK to 
     evade accountability if you can get away with that''; a 
     constitutional crisis looms if our legal system does not hold 
     all officers with full responsibility to a standard of full 
     accountability. Responsibility without accountability 
     ``according to law'' undermines the core foundation of the 
     Constitution, the aforementioned basic principle known as the 
     Rule of Law, without which our Constitution is no more than a 
     piece of paper.
       The Armed Forces now have a more fundamental challenge to 
     leadership training than simply instilling character traits 
     adverse to lying, cheating, and stealing: How do we instill 
     in young leaders the moral courage to admit when they are 
     wrong and to accept accountability for mistakes made? 
     Personal example by senior leaders, up to and including the 
     Commander-in-Chief, is an essential starting point--and risk 
     to personal ambitions is no excuse for any officer of the 
     United States Armed Forces.
       After the Commander-in-Chief holds himself accountable to 
     the Rule of Law, or is

[[Page E1979]]

     otherwise held accountable to the Rule of Law, ``We the 
     People''--even those of us who serve ``at the pleasure of the 
     President''--should follow his lead and talk about 
     forgiveness. In the meantime, other commanders might do well 
     by following the lead of, and by telling their troops to 
     follow the lead of, Archbishop John Carroll, whose ``A Prayer 
     for the Republic'' seems as timely now as when penned by the 
     founder of Georgetown University 200 years ago: ``We Pray 
     Thee, O God . . . assist with Thy holy spirit of counsel and 
     fortitude the President of the United States, that his 
     administration may be conducted in righteousness, and be 
     eminently useful to Thy people over whom he presides; by 
     encouraging the due respect for virtue and religion; by a 
     faithful execution of the laws in justice and mercy; and by 
     restraining vice and immorality. Let the light of Thy divine 
     wisdom direct the deliberations of Congress, . . . .''

     

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