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Armed Forces Day, 2009

By Jack M. Balkin

Since 1950, the country has observed the third Saturday in May as Armed Forces Day. The purpose is to honor the personnel of all branches of the military. The only parade in which I marched in uniform was the Armed Forces Day parade in Hampton, Virginia, in 1969. At the time I did not realize that each year?s observance has an official theme; mostly I thought about keeping in step and that it was much too hot to be marching in woolen blues.

According to the Defense Department website, ?some of the themes and ideas that have prevailed over past Armed Forces Days? include ?Appreciation of a Nation,? ?Arsenal of Freedom and Democracy,? and ?Representatives of the World?s Mightiest Democracy.? http://www.defenselink.mil/afd/military/history.html. This year, Armed Forces Day falls on May 16, and the theme will be ?United in Strength.? We could have done better. For example, we might have chosen ?Danger Ahead."

With all the current controversies swirling around our country?s use of torture--Should we investigate with a view to criminal prosecutions? Should there be a commission? Should professional sanctions be imposed on the authors of the OLC memos? Can/should Judge Bybee remain on the bench?--it is important not to lose sight of one sad and, in my view, irreversible result of the torture program that was designed, implemented, and rationalized by the Bush Administration. Whatever we do now, that program has placed our military personnel in grave danger for the foreseeable future. Even if the Bush Administration had not treated our uniformed personnel as part of the ?base? that could be counted on for unquestioning political support, and even if President Bush had not used the military as a theatrical prop for political purposes (photo ops with GIs arrayed behind him, or the ?Mission Accomplished? moment--presidential flight jacket and all--aboard the USS Abraham Lincoln), the torture program would still be unforgivable for its indelible effects. From the moment word of it leaked out, as was inevitable, the United States lost its ability to protest credibly when others mistreat our personnel. What can we possibly say the next time a soldier or Marine falls into the hands of some hostile force in a distant location? That the torture program--which Congress could have stopped rather than, at least in part, immunized--is ancient history? Hardly. That we have righted the balance by conducting a rigorous examination and meting out punishment to all who designed, validated or implemented the program? We haven?t done so yet and seem not to be headed in that direction. When the digital photos appear, as one day they will, documenting comparable treatment--and worse--of our military personnel and, for that matter, of innocent American civilians who are kidnapped by people intent on harming our country and countrymen, what will we be able to say? That others? lawless conduct is different from ours because it is in a bad cause and lacks the cover of legal memoranda?

It would be comforting if some creative thinker could devise a way, this Armed Forces Day, to explain to our GIs (and tourists, diplomats, students, journalists) that the new risk they face now and for the future was inevitable and that our institutions of government under the Bush Administration are not to blame when our fellow-citizens are strapped down waterboarding or subjected to other ?enhanced interrogation techniques.?

What will recruiters say when the first videos of Americans being tortured surface on YouTube?

As we approach Armed Forces Day, I hope Americans will not forget who is to blame for the added danger now faced by those who go in harm?s way on our behalf. I can think of no greater disservice to the women and men of our armed forces, or a subject more deserving of our leaders? attention on May 16th.
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Full post as published by Balkinization on May 04, 2009 (boomark / email).