Patrick Murphy: Constitutional Crisis and the US Military

Ken Harbaugh: Burn the Boats is proud to support VoteVets, the nation’s largest and most impactful progressive veterans organization. To learn more, or to join their mission, go to VoteVets.org.

Patrick Murphy: I have full faith and confidence in our military. Our military is apolitical...They serve the Constitution and the people of the United States of America. They don't serve at the whims of whoever is in charge in the White House.

KH: I’m Ken Harbaugh, and this is Burn the Boats, a podcast about big decisions. On Burn the Boats, I interview political leaders and other history makers about choices they confront when failure is not an option.

Today I sit down with Patrick Murphy, former soldier, Congressman, and acting Secretary of the Army. We talk about the role of the military in American democracy, about Patrick’s leadership in getting Don’t Ask Don’t Tell repealed, and about the challenge that servicemembers face when their oaths to the Constitutional conflict with orders from the president.

Patrick Murphy, welcome to the show. You're a former soldier, congressman, Acting Secretary of the Army under President Obama. Does that make you the Honorable? Can we just go with the Honorable throughout the interview?

PM: Come on, Ken. Call me Patrick.

KH: Patrick, thanks for coming on. I am so thrilled to have you on the show at this particular time because I've been thinking a lot about civil-military relations and the state of them and you have occupied significant positions on both sides of that divide, as a soldier, a Bronze Star winner for your service with the 82nd Airborne in Iraq, and as Acting Secretary of the Army. How would you evaluate the state of that relationship today, three years into this administration?

PM: Well, a couple of things, Ken. First, I just want to say, thank you for your service too, not just as a Naval aviator and officer, but also your commitment to political public service. Listen, I think the fact that we have the least amount of veterans serving right now in Congress is a symptom of folks that are in Washington who are putting themselves and the political parties first and I think we have to get back to our basics and people that are going to put our country first. And so, I think that's some of the dismay that the American people are feeling, that disconnect with what's going on in Washington right now, and I think part of solution, frankly, is getting more veterans in political public service, but also more Americans saying we're not going to take this anymore. We're going to stand up and do right by the United States of America.

KH: Trump has gone to great lengths, though, to make a show, and I'm using that word intentionally, a show of his support for veterans, not just vets but active duty personnel. He puts them front and center at fundraisers, at political events. He uses them as props at campaign events. How do you think that's being received among the rank and file?

PM: Well, I'm trying, since I left the Pentagon, not to be overly political, but there is no doubt that starting from the RNC, the platform where he attacked a Gold Star father who was supporting his opponent, to the way he treated his chief of staff, General John Kelly, the way he treated the Secretary of Defense, General Mattis, and how he discarded them. And then, most recently, how he's treating FBI leaders, how he's treating Army Colonel Vindman because he spoke truth to power. It is no doubt a chilling effect on what's going on in Washington and it's reverberating throughout the ranks of our men and women and I think we all hope and pray that the nonsense will stop.

KH: Do you think that our military is ready, not to mention the FBI and the other agencies whose members swear an oath to the Constitution, are they ready for the inevitable constitutional crisis when facing a choice between upholding one's oath and carrying out the wishes of this president, which I would argue are approaching that constitutional line. I mean you and I and the millions of others who raised their right hands did not swear to be loyal to this president. That's going to be tested.

PM: Yeah. You know, I spent years teaching the next generation of military leaders at West Point. Actually, I taught constitutional and military law and you know, Ken, you and I are the same year group, 1996, becoming officers. You in the Navy and me in the Army ROTC. You know, those years at West Point teaching constitutional law, a constitution that every one of our men and women in uniform, those who have sworn to protect America against all enemies, foreign and domestic, they understand that they take an oath and an allegiance to our Constitution, a constitution which is the blueprint of our country. A constitution which is a living, breathing document, but a constitution that says to them that they must follow the constitution. They must follow the law. They don't take an oath to the Commander in Chief, they don't take an oath to Congress. There is a checks and balance. There is a co-equal branches of government, executive, legislative, judicial. They get that, but they also understand that in those defining moments, in those moments of crises like Colonel Vindman did, they will speak up and they will not follow something that is not right and they will do what's necessary to put our country first.

KH: Do you think constitutional training should be a requirement for those swearing that oath, for officers in particular who are charged with leading men and women now facing that impossible dilemma between upholding that oath and following potentially illegal orders? Do we prepare our service personnel well enough?

PM: I think there's always room for improvement. You know, you and I both did ROTC where the majority of our officers are commissioned. I didn't have formal constitutional law training when I was an undergraduate, but to go on, the Army cut me loose to go to law school and then to go teach at West Point. Every cadet at West Point, all 4,000 cadets, will receive constitutional military law, will walk through the law of war, will be walked through... Unfortunately, instances in our past when they had to stand up and do what was right, even if that meant disobeying an unlawful order. So whether it was the My Lai Massacre, whether it was the constitutional crisis under President Nixon's years, and some of the things that we're seeing right now, live, currently happening, you see that and actions speak louder than words and I think every trainee, every young man and woman that becomes either sailor or a soldier or a Marine or an airman, they know what's at stake and they know what right looks like and I have full faith and confidence that, in those defining moments, they will continue to do what's right for our nation.

KH: I have utmost faith in their character and their courage, but I was just at Ohio State law school giving a lecture about my piece in The Atlantic taking this on and a number of students pulled me aside afterwards, students that had gone through ROTC, some of whom were in the Guard now and said, we are not equipped. We don't have the background to be able to decide what is an unconstitutional order and what's not, and it was an academic point for most of their career, certainly for my entire career. I didn't think about it much at all.

But you invoked My Lai, that, when I was going through my training was a faint echo. It's reached a crescendo now when you have a president who is literally celebrating war criminals, who is literally parading them at fundraisers after giving them a pardon and it sends not just a confusing but a damaging signal to the men and women we are asking to carry the flag to represent us in conflict zones abroad.

PM: Yeah. The My Lai Massacre, let's make sure it's clear, that happened in Vietnam where over 350 unarmed people were killed by Americans and it only stopped because there's a young lieutenant, William Calley, who was the platoon leader and it was one of those things where we learned from those mistakes. We are very introspective in the military, so we're ready to say no because we kind of know and have a gut feeling and we get trained every day what right looks like. But I will tell you, and then, by the way, as you know, every time you're promoted within the military, you are taking that oath again, that oath, that allegiance to our US Constitution to stand up against all enemies, foreign and domestic.

And you look at what's going on and I think that's why there's a lot of discontent in America and there's a lot of people who are losing faith in political public service. I think that's why you're seeing a record number of retirements from members of Congress. I think that's why you're seeing some folks who are leaving this administration because they're just not happy and they know that we have to stand up as Americans and get involved in the process and be part of that solution.

KH: Do you worry that that loss of faith in our institutions of government has a risk of spilling over to the military, which for a very long time - I would argue, we bounced back from the trauma of Vietnam and for the better part of a generation the military has been held in incredibly high esteem, but does the broad loss of faith in America's institutions threaten to affect America's faith in its military?

PM: I have full faith and confidence in our military. Our military is apolitical. I know the chairman of the Joint Chiefs of Staff Mark Milley is adamant about keeping it that way and I have full faith and confidence that they will continue the over 200 year history of our military in doing just that. They serve the Constitution and the people of the United States of America. They don't serve at the whims of whoever is in charge in the White House.

KH: Can you give us some more reassurance that behind the scenes, those charged with carrying out the mission of the United States military to support and defend the Constitution against all enemies foreign and domestic are indeed standing up to the attempted politicization of their institutions, of the Army, of the Navy, of the Marine Corps. Is there pushback that we're not seeing?

PM: The fact is this, is that we see it bubbled up in the newspapers and in the media when these profiles in courage stand up and do what's right. And I think the most recent example was Col. Vindman. And again, I understand. He stood up, he reported, he testified to Congress and I understand that when the Senate impeachment was over, he was unceremoniously escorted out of his position with a national security team, out of the White House, as if he was a criminal.

KH: And they went after his brother as well.

PM: I know. It's disheartening and it's a black mark on our nation's history. But Ken, I would say to you, and I am an optimist by nature. Anyone that jumps out of a perfectly fine airplane tends to be an optimist that our parachutes can open up. But Ken, I will tell you that it's always darkest before dawn and a dawn is coming and it's coming because there's this grassroots movement of Americans who are willing to stand up and do what's right and not going to sit on the sidelines anymore.

KH: You referred to the attempted humiliation of Lieutenant Colonel Vindman as a black mark on our nation's history. I would submit that the military acquitted itself well. It is not a black mark on the institution of the military. Lieutenant Colonel Vindman answered that subpoena. He did his duty and, I think, brought great credit to himself and his service.

Let's extend the question, though, to the community of veterans that many Americans are looking to for inspiration, for guidance, for some hope. Do you think that there is a special burden that veterans carry in this time, as you put it, darkest before the dawn, for carrying that torch and setting an example for their fellow Americans?

PM: No doubt. We need veterans to step up in political public service, in business. I mean, Ken, your record is tremendous. One of the real leaders, you started The Mission Continues, co-founded it. You started one of the largest veteran nonprofits in the whole country, national movement. That's still going on strong in every community, including our community here in Pennsylvania, in Philadelphia.

But I will tell you that, yes, when you look at political public service, you look at the US government, it's not looked upon with great honor and distinction by the American people. They don't have confidence in it, but they do have confidence in the American warrior. They do have confidence in the warrior class, which is our active troops and our veterans, and I do think that veterans aren't willing to be, for the most part, they're not willing to be political pawns, they're going to stand up and do what's right and not just in political public service, but I think especially in our generation, I think you're seeing them get after it. Veterans are more likely to be little league coaches. They're more likely to be pastors in their churches. They're more likely to be small business owners and for those small businesses to be successful.

And so, I think all those things are positive and that's why they have such great respect from the American people. But let's face it, they are less than 1% of America. The warrior class, our generation of sons and daughters, we both got commissioned the same year, in 1996, I remember when I was going to training at Kings College, a small Catholic college in Wilkes-Barre, Pennsylvania.

I had classmates, they'd be like, hey, Murphy. What are you, GI Joe? I remember I was dating a girl and her dad said to me, Patrick, why are you joining the Army? You're on the Dean's list, you're captain of the hockey team. Why would you do this? I said, sir, my dad served, my uncle served. I want to serve my country. And he said, what happens if a war breaks out? And I said, well then I'll go and serve. And that's what I did. That's what you did. I was on active duty when 9/11 happened. I went to two combat deployments. I'm proud of that service, but we need more Americans to step up, not just in military public service, not just in political public service, but to be part of the solution to move this country in a new direction and move it forward.

KH: What does that mean systematically? I'm going to circle back to something you said about veterans serving in greater numbers than their civilian counterparts, voting at higher rates, being more likely to be engaged in their communities. Is that because of some selection bias in who the military takes in or does that shared service imbue the veteran with the sense of community and commitment to their fellow citizen that we could maybe scale up and provide that experience to more Americans?

PM: I am a huge believer, huge, huge, huge believer that to move this country forward we have to give young Americans an opportunity to serve and I absolutely believe in a national call for service. And again, this isn't military service, Ken, as you know, this is, say, whether it is the military or it could be Teach for America or it could be the Peace Corps, but it is getting people to serve their nation at a time when they want to serve, at a time when they just want to know what opportunities are out there and you have to make it a systematic approach. This is a whole nation approach, not just whole government, a whole nation approach so that if you do serve, it should be in common like, “Hey Ken, where did you serve? I served in the Navy, or hey, I served in Teach for America, I served in the Peace Corps.” It just has to be in our DNA, and if it's in our DNA like it is for the American warrior, when you leave, you have that love of country stamped on your heart. That's why you show up at the PTA meeting. That's why you show up, even though you had a long day at work. You go above and beyond because you know it takes leadership to step up and to show up across the fabrics of our community.

KH: I was listening to this fantastic interview with Barbara Ehrenreich on the way in who talked about our society having lost its rituals of shared experience, shared service, shared sacrifice and my reaction was to agree with the generalization, but to reflect on the fact that in the military I was not lacking for any of those things and if we could somehow give young people that experience, it would affect the way they think about everything. Because, honestly, for me, the greatest thing I got out of my time in uniform, and I would imagine the same holds for you, was it's not really learning how to lead or even, for me, learning how to fly, it was being thrust into a situation, in my case, with 23 other Americans on my EP-3 aircraft and being forced to come together around a mission. That brought us together in a way that nothing else could.

PM: No doubt, no doubt. Listen, when I was in the middle of Baghdad in 2003 as a part of the invasion force, I had this, what is called a bolt team with the 82nd Airborne division. Our guys and gals, they didn't care what race you were, what religion you were, if you believe in God or not believe in God, or if you're a Democrat or Republican, you have to get the job done. But when we came home, we had to make sure that we were there for each other as well. But I will tell you that's that call to service. That is that belief in each other and your fellow American, your fellow paratrooper, your fellow sailor, that we need across America that these young Americans know you have an opportunity to serve besides just the military, which is still an awesome opportunity to serve, but other opportunities to serve whether here at home or abroad.

KH: Well, your life is certainly a testament to that ethic of service made real from your initial oath of office to your time in Congress, to your time as Under Secretary to your time as Acting Secretary of the Army. But I want to ask you about one piece of that in particular - your leadership of the effort to repeal Don't Ask, Don't Tell. How does a kid from a Catholic college, a son of a cop and a former nun, find himself at the vanguard of an effort to undo that manifest unjustness and give those tens of thousands of Americans the opportunity to serve their country? Why did that fall on your shoulders, of all people?

PM: Well, Ken, a couple of things. One, just like the Navy and the Army, we have that saying, keep it simple, stupid. And to me, I spent years of my life teaching constitutional law and I was there at West Point on active duty as a young army captain. And I was there when 9/11 happened. And I remember stepping up and saying to the general counsel of the Department of Defense at the time who was visiting West Point, and said, hey sir, is there a chance we would repeal Don't Ask, Don't Tell? Is the administration going to support that because we've kicked out over 10,000 troops because of who they love.

And he kind of snickered at me and said, “why Captain Murphy? Think we should?” As if it was this outrageous question. I said, yes sir. Absolutely. I said, we desegregated our military at a time when half the country was segregated, where we had colored water fountains and colored bathrooms and colored restaurants, and we did that because we said we all wear green, we all bleed red. Because we all knew that we had to get the job done and we were in the middle, by the way, of the Korean War. And this is when we were sending troops into Afghanistan and I knew I had volunteered right away and I knew I was leaving West Point to go fight.

But I remember I was a straight person who, as you mentioned, my mother was a Catholic nun. She was an Immaculate Heart of Mary nun. Her probably most proud moment was that I was, in 1987 altar boy of the year at St. Anselm's Parish. I say those things, Ken, because you know we keep it simple. We take an oath to the constitution, the constitution that says, what does America stand for? It stands for freedom. It stands for equality. And so, do you believe in equality? Yes. Are you willing to fight for it? Yes.

So as a young Congressman, I volunteered. I was in the Armed Services committee. The member of Congress that has written the legislation to repeal it in the past, she was going over to take a position - it was Ellen Tauscher, Under Secretary of the Secretary of State. And I knew there was a chance that for someone like me to step up, and I went to then-Speaker Pelosi. I said, ma'am, I know I'm a straight white guy, a Catholic with a young family, but I believe in equality and I think as the first Iraq war veteran, someone who serves in the Armed Services committee and the Intelligence committee, I'm best primed to lead this effort and I'll tell you, ma'am, if you give me the mantle, I will make this happen.

And she says, all right Patrick, I'm going to give this to you. And we got it done in the House and we pushed like heck and we got it done in the Senate and it was the end of that congressional term, President Obama was the president and he signed it into law. It'll be 10 years ago this December when that was signed into law.

You fast forward, Ken, that the military has been an agent of social change. When we repealed Don't Ask, Don't Tell after 13,000 men and women, fighter pilots, infantry men, Arabic speakers were thrown out, not because of misconduct, because of who they loved, that statement, that testament to equality in our armed forces has been a game changer, has been a social agent of change, which ushered in marriage equality in America because Justice Kennedy talked about it in his Supreme Court decision - we can't not have marriage equality when our troops are not treated when they go back home, to places like Ohio or Pennsylvania. And that is a great moment in our nation's history that you and I were part of, but I will tell you, that march to justice cannot now just, you just can't sit in the sidelines when you see that there's 5,000 kids, frankly brown kids, being locked up in our borders right now, over seven of which have died in our custody just because they come from Mexico or from Central America. That is a black mark on our nation's history. So again, we're seeing veterans step up. Veterans like Conor Lamb who ran for Congress and won in Pennsylvania. Veterans like Chrissy Houlahan in Chester County, Pennsylvania. These are folks who I call friends, who I support, and that I'm still supporting. That is why I'm passionate about this.

KH: Well your passion comes through unmistakably. Just want to add one thing to your observation about the repeal of Don't Ask, Don't Tell and the righting of that wrong. It not only was about justice, it was about combat effectiveness. I think our military is better for it, not just because it acted as an agent of social change, but because we were able to receive the talents and the patriotism of those thousands of people who wanted to serve their country and we're all better at our jobs because of that.

PM: No doubt. You know, when I was running the Army as Acting Secretary of the Army and our Chief of Staff was General Mark Milley, we stood there and we testified in front of Senator McCain in the Senate Armed Services committee and we said we want to open up all the occupational specialties, all the jobs in our army, to women. If they want to go to ranger school, let women go to ranger school, and oh, by the way, most women can't get through ranger school. Most men can't get through ranger school.

KH: Can't get through ranger school. I couldn't get through ranger school.

PM: Right, so let's stop kidding ourselves, right? If they want to try and go for it, don't lower the standards, set one standard and guess what? They are kicking ass and taking names and you have people like Lisa Jaster out there just smoking it. That's why, in places like West Point, we had a soccer camp for high school students, you had a young girl by the name of Katie Pasca. Katie Pasca is a girl from a row house in Northeast Philadelphia. I grew up at St Anselm's Parish with her mom. Her dad's a mailman, her mom's a Coast Guard veteran and she has her daughter up at West Point at a soccer camp, and you know what? She says, Mom, I want to go to West Point and I want to be an Army Ranger or an Army Green Beret.

You know what? She can now. You know why? Because we had a Commander in Chief in Barack Obama who was saying, hey, we believe in equality. Let's keep it simple. Let them give them a chance. He had leaders like General Mark Milley, who's now Chairman Mark Milley, who's willing to put his reputation on the line and guys and gals like myself, and people like Maura Sullivan, who was Assistant Secretary in the Pentagon, who was working for the Department of the Navy. We had leaders like that standing up and doing what was right and we did it because we didn't need permission from Congress. We did it because we could do it via executive order. And unfortunately some of those executive orders have been rolled back under President Trump where he doesn't allow now transgender service members serving. And I think that, unfortunately, hurts our combat effectiveness because there's a lot of transgender Americans who could do a great, great service and want to do great service, bu, unfortunately now they're not given that chance to serve.

KH: Yeah. Well Murph, thank you for your service, for your leadership. We end every show with the same question. What is the bravest decision you've ever been a part of?

PM: Oh, man. I think, frankly, probably the most recent was... I'm a big proponent of Bobby Kennedy. Bobby Kennedy once said, ‘moral courage is rare. It's more rare than physical courage.’ I remember being in Congress, I won my first race by 0.6%. I was representing Bucks County, Pennsylvania and was only the third Democrat in 200 years and I was all in and when the Obamacare bill came up, I co-sponsored it and I supported it and there's a lot of protests, hundreds of folks that would protest my office and show up at my events. In fact, I showed up at a protest once, that they were outside my office on a weekend and we didn't have office hours. But I knew they were showing up and I showed up by myself with a copy of the healthcare bill that I had read and I had it tabbed and I went to the one veteran there and I said, sir, you have the first question, and he read this thing about, ‘well it says on 336 that you're going to give free healthcare to illegal immigrants’. I said, sir, that's not true, but let's not just take my word for it. Let's go to page 336 and we went there and then I walked him through it and I said, ‘sir, what we're seeing on email, whoever told you that, you go back to them, you let them know that they're a liar.’ We can have arguments on policy, we don't need to lie about it.

But probably the bravest thing was the moral courage to stand- I was in that Amtrak crash a few years ago. I was coming back from Washington and unfortunately eight people were killed that night. I was outside of Philadelphia and our train derailed. I stayed back even though I was knocked unconscious and bloodied up and I stayed back and was able to punch out that emergency window and help people go to safety and I stayed back to provide care. That was probably, in most recent, beside my time in Iraq and Bosnia, probably the most bravest thing. But I think it's brave just to be a parent and just to be a good American and stand up and say, no, it's not right, when people are like, how can you not vote for Trump?

I think that's brave and that's what we need, more Americans to stand up and do what's right when they know things are not going in the right direction, which they're clearly not going right now. We need good political public service in what's going on in Washington DC.

KH: Well, thank you for sharing. Thank you for the inspiration, for the example that you set, Murph. Let's do this again soon.

PM: Absolutely. Thank you, brother.

KH: Thanks again to Patrick for joining me. You can find him on Twitter at @PatrickMurphyPA.

Today Patrick and I talked about the potential constitutional crisis the military might face under President Trump. So we wanted to hear from you about a time when you were asked to do something you knew was wrong.

Isabel Robertson: Hi, I’m Isabel Robertson, producer of Burn the Boats. I’m here to read a couple of stories you all submitted about times you did something you knew was wrong in order to stand up for something right.

On Facebook, Liane wrote about a time when she stood up to a sergeant - the reserve first sergeant told her to have her Marines go clear the mortar pits recently abandoned by the Iraqi army. She wrote in her Facebook comment: “Flabbergasted by his ignorance, I flat out refused and told him we’d be waiting until EOD had given the all clear...That was a common sense decision, really, but as a Staff Sergeant, it was delicate to refuse and educate the man on his error. He was not the most receptive guy.

Over on Twitter, Carol told us about a time she stood up to her boss. She wrote: “Once a boss asked me to conceal an important fact to an insurance company; I told him that HE would have to write that memo, because my integrity in this business was all important, and I wasn't going to lie.”

Also on Twitter, Elena said that she reported a parent for child abuse to social services when she was a teacher, even though the principal and superintendent called her at home to express their anger.

Thank you so much, Liane, Carol, and Elena for sharing your stories and for standing up for what’s right! You can join in our conversation yourself by finding Ken Harbaugh on Facebook or following him on Twitter at @Team_Harbaugh.

KH: Next time on Burn the Boats, I’m talking to Joe Sanberg, entrepreneur and investor working to end poverty in California and across the country. Especially in this time of economic turmoil, we want to hear your thoughts on achieving financial security for all - if you could change the economic system in America, what would you do?

Thanks to our partner, VoteVets. Their mission is to give a voice to veterans on matters of national security, veterans’ care, and issues that affect the lives of those who have served. VoteVets is backed by more than 700,000 veterans, family members, and their supporters. To learn more, go to VoteVets.org.

Burn the Boats is a production of Evergreen Podcasts. Special thanks to Evergreen executive producers Joan Andrews and Michael DeAloia. Our producer is Isabel Robertson. Audio engineer is Sean Rule-Hoffman. Our theme music is Climbing to Greatness by Cody Martin.

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I’m Ken Harbaugh and this is Burn the Boats, a podcasts about big decisions.