Court-Martial? A Benghazi Counterfactual

[NOTE: This post has been UPDATED]

Assume for the sake of argument (this will be hard, but do it) that both the President and Congress were smart, forward-looking, and anticipated an event that was beyond the ken of the administration we actually have: an attack on an outlying American installation by Al-Quaida-affiliated terrorists, especially on or around an anniversary of 9/11.

Let us hypothesize that, anticipating such a possibility, legislation was passed — let’s call it the Acting Commander In Chief Act (ACCA) — and signed allowing the president to bestow complete situational authority in the event of an attack on the Chairman of the Joint Chiefs of Staff, an arrangement that would make particular sense whenever, as in the case of Benghazi, neither the President nor the Vice President nor the Secretary of State had any military experience.

Are you with me so far? Good. Now assume that very early in the attack on Benghazi — as soon as information was received (and recent and compelling evidence reveals that it was received very early on) that a terrorist attic was underway, not “a demonstration gone terribly awry” (in the words of retired Air Force brigadier general Robert Lovell) — ACCA was invoked and the Chairman of the Joint Chiefs was given control over the response. Assume further that, in our hypothetical, the Acting Commander in Chief did exactly what our actual Commander in Chief did in response to Benghazi.

President Obama was not in the Situation Room while the attack on the compound that killed four Americans, including the Ambassador was in progress, as former National Security Council spokesman Tommy Vietor admitted to Fox News. Although the president’s location is generally a matter of public record, the White House has not explained where the president was while Americans were under attack. In addition, he did not authorize any effort to rescue or come to the aid of those Americans being attacked. In hindsight it has been stated that there wasn’t time, that the attack was over before any support could have arrived, but it was not known during that long night how long the attack would last. The central fact here is not the failure to rescue Ambassador Stevens and the others; it is that no attempt was made.

Return now to my hypothetical. If an active member of the armed services, including my hypothetical Chairman of the Joint Chiefs, had acted in the same manner as President Obama, I believe he should be court-martialed for dereliction of duty. Article 99 of the Uniform Code of Military Justice, for example, covers “Misbehavior Before The Enemy” and includes several relevant provisions:

“Any member of the armed forces who before or in the presence of the enemy—

(1) runs away;

(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;

(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;

….

(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or

(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct.”

The death penalty would be too harsh, but I’m confident that a court-martial could arrive at a fitting punishment.

UPDATE

Although he analyzes the unfortunate reality of the president’s behavior during the Benghazi attack, Andrew McCarty provides powerful support for the lesson of my hypothetical in his National Review Online article, “The AWOL Commander-in-Chief.” Regarding Gen. Lovell’s testimony that the troops waited in vain for requests from the State Department to act, McCarthy writes:

This Foggy Bottom focus had me groping for my pocket Constitution. Sure enough, Article II was as I remembered it. Much as Hillary Clinton may desire to be the commander-in-chief of the United States armed forces, that job does not belong to the secretary of state.

It was the solemn duty of the president to come forward with not requests but commands for action. Why was AFRICOM hanging on the State Department’s preferences? Why were our troops hamstrung by what Lovell described as “deference to the Libyan people?” On the night of September 11, 2012, AFRICOM was not beholden to Mrs. Clinton or Tripoli. They answered to Barack Obama.

Of course, no one can answer to a commander-in-chief who abdicates his command, a commander-in-chief who is AWOL.

A commander-in-chief does not get to vote “present.” Over 19 months have elapsed since terrorists savagely attacked the United States in Benghazi. Yet we are still waiting, ever waiting, for an account of where the president was, what he was doing, and what if any directives he gave during the hours and hours during which Americans were being tormented and killed….

Outnumbered and fighting off wave after jihadist wave, Americans were left to die in Benghazi while administration officials huddled, not to devise a rescue strategy, but to spin the election-year politics. The most powerful and capable armed forces in the history of the world idled, looking not to their commander-in-chief but to a State Department that busied itself writing press releases about phantom Islamophobia. The president of the United States, the only constitutional official responsible for responding, was nowhere to be found.

We are left with four dead Americans and an emerging paper trail of dereliction stretching from Benghazi to 1600 Pennsylvania Avenue.

Benghazi is not about what Hillary Clinton or Leon Panetta or Susan Rice or Ben Rhodes or Jay Carney or Robert Lovell did or didn’t do. The only question is: What was President Barack Obama doing, and not doing, during the critical hours when his sworn duty required decisive action?

Failure to perform his “solemn duty.” “[A] commander-in-chief who abdicates his command, a commander-in-chief who is AWOL.” “The president of the United States, the only constitutional official responsible for responding, was nowhere to be found.”

If Obama were a soldier, he would or should have been court-martialed for this dereliction of duty. As commander-in-chief of all the soldiers, he apparently is allowed to go into hiding for the duration of the murderous night and fly off early the next morning for something he regards as truly important, a fund raiser in Las Vegas for his reelection campaign.