2016: Constitution Check: Could the military disobey orders issued by a President Trump?

Have Presidents ever given the military illegal orders? Yes; the surprising list…and more about the law of military orders. (see more below)

Congress approves bill barring any president from unilaterally withdrawing from NATO

https://www.washingtonpost.com/national-security/2023/12/16/congress-nato-exit-trump/

https://www.businessinsider.com/trump-nato-withdraw-congress-defense-bill-2023-12

https://thehill.com/homenews/4360407-congress-approves-bill-barring-president-withdrawing-nato/

CAN YOU RECOGNIZE AN UNLAWFUL ORDER?

PRESIDENTIAL EXECUTIVE ORDERS, ONCE ISSUED, REMAIN IN FORCE UNTIL THEY ARE CANCELED, REVOKED, ADJUDICATED UNLAWFUL, OR EXPIRE ON THEIR TERMS.

ON BEHALF OF THE MILITARY JUSTICE CENTER | MAR 16, 2022 | MILITARY LAW.

As a member of the military, if you’re fortunate, you’ll never have to worry about whether you can or should disobey an unlawful order given by a superior (including the Commander in Chief). However, what if you are placed in that situation? How do you know for certain that an order is illegal? Are the consequences worse if you obey an unlawful order or if you disobey an order that is actually lawful? In the oath that service members take, they pledge to “obey the orders of the President of the United States and the orders of the officers appointed over me…” The Uniform Code of Military Justice (UCMJ) specified that they are required to obey “the lawful orders of his/her superior.”

THE CASE OF THE MY LAI MASSACRE

What about unlawful orders? Sometimes an unlawful order is clearly that. Perhaps one of the best-known examples occurred during the Vietnam War in what was known as the My Lai massacre. Army Lt. William Calley and some of the men in his command were court-martialed for killing hundreds of civilians.

Calley claimed was he was following an order from his superior, and the other men who were court-martialed claimed they were following his orders. The men under Calley who refused his order to round up and kill civilians of all ages who had survived a raid did not face court-martial.

In convicting Calley, the court described the order he and the others claimed to have been following as “palpably illegal.” It added, “For 100 years, it has been a settled rule of American law that even in war the summary killing of an enemy who has submitted … is murder.” An order like this is easy to recognize as illegal. Others may not be. Even determining what a reasonable person might conclude can sometimes be difficult.

https://www.militaryjusticecenter.com/blog/2022/03/can-you-recognize-an-unlawful-order/

2016: Constitution Check: Could the military disobey orders issued by a President Trump?

Lyle Denniston, the National Constitution Center's constitutional literacy adviser, looks at comments from retired Air Force General Michael Hayden about possible conflict between the military and a civilian President over controversial orders - a debate triggered by recent comments from GOP candidate Donald Trump.

THE STATEMENTS AT ISSUE:

“I would be incredibly concerned if a President Trump governed in a way that was consistent with the language that candidate Trump expressed during the campaign….Let me give you a punchline: If he were to order that [the killing of family members of terrorists] once in government, the American armed forces would refuse to act. You are not required to follow an unlawful order. That would be in violation of all the international laws of armed conflict.”

– Comments by retired Air Force General Michael Hayden, on February 26 during an appearance on the HBO television program, “Real Time with Bill Maher.”

“In view of the specific responsibilities imposed upon me by the Constitution of the United States and the added responsibility which has been entrusted to me by the United Nations, I have decided that I must make a change of command in the Far East. I have, therefore, relieved General MacArthur of his commands….Full and vigorous debate on matters of national policy is a vital element in the constitutional system of our free democracy. It is fundamental, however, that military commanders must be governed by the policies and directives issued to them in the manner provided by our laws and Constitution.”

– Excerpt from an official statement from President Harry Truman on April 10, 1951, announcing that he had dismissed General Douglas MacArthur as the U.S. and U.N. military commander in Korea during the war there, after MacArthur insisted on planning military attacks against China when it was Truman’s policy to try to get China to the bargaining table to negotiate over an end to that war. The firing came after MacArthur not only defied Truman’s military orders, but complained openly about the President to Congress; Truman’s action was one of the most important constitutional developments during that war. WE CHECKED THE CONSTITUTION, AND… A cardinal principle of government that those who wrote the Constitution held dear was that the American military would always be under the ultimate command of civilian leaders. George Washington, the Revolutionary War commander and the first Commander-in-Chief, was always devoted to the subordination of the military to civilian rule, and he actually put down a rebellion among his officers over the failure of the civilian government to keep military pay current during the Revolution.

When Abraham Lincoln worked his way through a series of field commanders during the Civil War, he did so partly because he found several of them inept, and partly because he wanted to remain in firm control of the military course of the conflict.

America, though, has no more vivid illustration of civilian dominance of military affairs than President Truman’s swift dismissal of General Douglas MacArthur when the general began waging the Korea war on his own terms in 1951, and openly moved ahead with military adventures that Truman felt would frustrate the attempts to get peace negotiations going.

It appears, though, that America might once again find itself in the midst of one of those historic conflicts, if this year’s presidential election should put Republican candidate Donald J. Trump into the White House, as Commander-in-Chief. If Trump were to win the office, and if he were, in fact, to move forward with some of his ideas for waging the war on terrorism, including a return to torture of terrorist suspects and even more brutal strategies for demoralizing them by killing their families, it is reasonable to expect that he would encounter stiff resistance from within his in-house military advisers, without a rebellion by them. But would military commanders actually refuse to obey direct orders from Trump as their ultimate commander?

One can surmise that, even if Trump were to undertake such commands to his military subordinates, there would be many points of resistance within the government to going forward, well before military commanders might resort to open defiance. And one can imagine that a good measure of resistance would come from at least some congressional leaders.

But, assuming the worst-case scenario, is such insubordination out of the question?

Retired General Michael Hayden last week suggested that very possibility, relying on an argument that such resistance would have international law on its side. Perhaps the former leader of the National Security Agency and of the Central Intelligence Agency was trying to reassure himself that the modern development of international war crimes commissions for the punishment of outright violations of the law of nations is now making legitimate the acts of disobedience to orders to commit atrocities.

Although the general added that he was not talking about a coup by the military, his remarks had the rather scary sound of just such a maneuver. It was chilling precisely for constitutional reasons: it is not the function of the military to make a decision that the policy choices of civilian government leaders are outrageous, or even that they violate norms of international law. That is not a military function. It is simply well outside of any norm of constitutional understanding to pretend either that the military is capable of making legal judgments, or that it has been set up to be a player in checks-and-balances.

If Donald Trump in the White House were to set out to lead the country down a path toward authoritarian Executive Branch leadership, then either the existing constitutional order will work to restrain that impulse, or the country will be on its way toward self-destruction.

It is possible, of course, that General Hayden was simply making a rather clumsy attempt to raise the alarm about the direction in which he perceived the presidential election campaign to be moving. Plenty of other people are alarmed about that, but it is not common these days to hear that the solution is a resort to tactics befitting a banana republic.

https://constitutioncenter.org/blog/constitution-check-could-the-military-disobey-orders-issued-by-a-president-

President Trump’s Illegal Military Orders.

The theoretical question of whether the U.S. military would obey illegal orders from a potential President Trump got a lot less theoretical with his recent string of wins.

“If I say do it, they’re gonna do it,” GOP presidential candidate Donald Trump said during Thursday night’s debate in Detroit. “That’s what leadership is all about.”

But late Friday, Trump was back-pedaling. “I will not order a military officer to disobey the law,” he told the Wall Street Journal. “It is clear that as President I will be bound by laws just like all Americans and I will meet those responsibilities.”

https://time.com/4244608/donald-trump-military-orders-illegal/

CONTINUED FROM ABOVE:

One of the most controversial aspects of this raucous primary season has been Donald Trump’s rhetoric about the use of force against terrorists, and particularly his rather opaque comments about “tak[ing] out their families.” This was interpreted by most to mean physical attacking family members as opposed to holding them accountable by other means, and that in turn generated a firestorm as to whether the military would obey such orders.

During the March 3rd debate Mr. Trump ‘upped the ante’ by insisting that he “was a leader” and, in apparent reference to the military, saying “If I say do it, they’re going to do it.” However, Mr. Trump later said that he would “not order a military officer to disobey the law”, but would rather seek their advice and that of other officials, presumably about the limits of his legal authority.

In an essay on The Conversation entitled “Trump’s campaign rhetoric, ISIS and the law of war” I try to explain that the law is more complicated than either Mr. Trump or his critics seem to appreciate. One of the questions I briefly address is whether or not a President has given illegal orders in the past. I mentioned Lincoln, whose orders to the military to effectuate his suspension of habeas corpus were, in my view, unlawful at the time they were issued, as were any authorizing military commissions in places where civilian courts remained open.

I could have added President John Adams, whose orders to the captain of the USS Boston to seize ships sailing from French ports during the “Quasi-War” with France were found to be unconstitutional. In the 20th century, the legality of the military’s execution of President Franklin Roosevelt’s ‘lend-lease’ of destroyers to Britain in 1940 is highly-questionable. Moreover, Roosevelt’s much-criticized executive order regarding the treatment of Japanese-Americans during World War II (and in which the military played a major role) was later found suspect by the Supreme Court, at least in part.

More recently, President Obama’s authorization of a swap of five Taliban prisoners for SGT Bowe Bergdahl – which surely involved military personnel – was found by the General Accountability Office to be illegal (though I disagree with the GAO). There is also no shortage of people who will contend that the President’s drone wars are illegal (but I am not among them). And we could go on as there are certainly are other questionable instances involving other Presidents whose directions the military carried out despite their being legally problematic.

What does this mean for today? Though she doesn’t reference the Presidential history I’ve discussed, Georgetown Law professor Rosa Brooks, a military spouse and former Pentagon official, recently observed in an op-ed:

The U.S. military has a strong rule-of-law culture, but it also has a strong commitment to civilian control of the armed forces. Generally speaking, that’s good, but it also means that officers rarely respond with a flat-out “No” when senior civilian officials start playing fast and loose with the law. The armed forces have a duty to disobey manifestly unlawful orders, but when top civilian lawyers at the White House and the Justice Department overrule the military’s interpretation of the law, few service members persist in their opposition.

But are unlawful orders always readily discernible? Like so many other things about the law that have come up during this election cycle, that which relates to military orders can be more complicated than people are wont to think. Let’s start by looking at what the U.S.’s Manual for Courts-Martial (an executive order authorized by 10 U.S.C. §836) says about obedience to orders in ¶14 b(2)(a)(i):

An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. (Italics added)

As to what may or may not be “patently Illegal”, Rod Powers points out that:

In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that “the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal.“ (Italics in original).

Accordingly, an order – for example – to target persons known to be civilians (and who are not directly participating in hostilities) would probably be viewed as a patently illegal one in almost every instance (but see my discussion of the implications of the virtually never-employed but still extant law of reprisal laid out in my Conversation piece, as well as the discussion below about an “information gap” that could exist).

Anyway, in the 1973 case of US v. Calley, the infamous Vietnam-era court-martial of Army 1st Lt William Calley for what became known as the My Lai massacre, an issue arose as to what level of understanding of illegality is required to make an order patently illegal. On the appeal of his conviction, Calley’s lawyers argued in essence that he was simply obeying superior orders, and that he may not have recognized that the killing of Vietnamese civilians was unlawful. The all-civilian Court of Military Appeals brushed aside this contention in affirming Calley’s conviction by observing that:

Whether Lieutenant Calley was the most ignorant person in the United States Army in Vietnam, or the most intelligent, he must be presumed to know that he could not kill the people involved here….An order to kill infants and unarmed civilians who were so demonstrably incapable of resistance to the armed might of a military force as were those killed by Lieutenant Calley is… palpably illegal.

Ok, but what about orders that seem profoundly ill-considered but still technically legal? In a “must read” essay entitled “Will the Military Obey President Trump’s Orders?” my Duke University colleague Professor Peter Feaver – one of the nation’s foremost scholars of civil-military relations – grapples with that issue by hypothesizing about “a legal but unwise” order that might be given to the armed forces in a crisis. He recognizes that generally the “military should obey even unwise orders because civilians have a right to be wrong,” but qualifies it by saying:

However, one can easily conjure up hypotheticals that are worse than a temporary loss of civilian control — say a direct nuclear attack on the homeland. If all that was needed to stop a nuclear attack on the homeland was for the military to refuse to implement a legal but unwise policy, then in that case I would certainly prefer the temporary interruption in civilian control followed by the rapid reinstatement of the constitutional order.

In a provocative 2010 article (“Breaking Ranks: Dissent and the Military Professional”) a Marine lieutenant colonel argued that there “are circumstances under which a military officer is not only justified but also obligated to disobey a legal order.” (Italics added.) Predictably, that inflammatory claim brought a scathing critique from Professor Dick Kohn, the dean of historians of American civil-military relations. Calling the article a “mush of assertions and opinions,” Kohn characterized it as “an attack on military professionalism that would unhinge the armed forces of the United States.” Among Kohn’s many critiques were some very practical observations:

How would an officer know all the considerations involved, and by what authority or tradition is it legitimate to violate the will of the people’s elected or appointed officials? Against what standard would even the most senior officer judge? Whose morality, whose definition of what’s good for the country, a service, or subordinates?

What does the Manual say about such a situation where orders that are not illegal, but nevertheless offend the conscience of the person who receives them? In ¶14 b(2)(a)(iv) the Manual warns: “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” Consequently, the purely legal analysis would seem to oblige obedience of even unwise orders, without exception.

Another complicating factor (beyond, again, the discussion of reprisal law in my Conversation piece) is something to which Kohn alluded: military personnel are sometimes given orders by superiors who have considerably more information than the subordinate may have.

This “information gap” is especially heightened in today’s conflicts where, for example, someone who is dressed like a civilian might be known by the order-giving authority to actually be terrorist, but perhaps not by the order-receiver. Consider as well a pilot who might resist an order to bomb what appears to be a religious structure not knowing that highly-secret intelligence information clearly demonstrates that a key terrorist is using it as his command center in violation of the law of war. These are tactical examples, but one could also imagine time-sensitive situations occurring at higher-levels.

The truth is that in the midst of combat – or during a crisis – there may not be the luxury of time for the superior to explain to the subordinate the rationale and wisdom of a particular order. This why the Supreme Court said in Chappell v. Wallace (1983) that the “inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection.” This would counsel wariness about animating in the armed forces too much of a readiness to question orders.

As also noted above, military law further provides that a subordinate disobeys an order at his or her “peril” which could mean, in effect, that if it turns out to have been legal – perhaps because of legitimating information the subordinate did not have – the subordinate might be convicted of disobedience (however, the defenses of mistake of law/fact may have application).

This is why the law as to overcoming the inference of legality of orders is framed by the word “patently” illegal (of course, orders which are known to be actually illegal are not to be obeyed even if they have the veneer of legitimacy). The bottom line is that “yes” the military can lawfully resist orders that are illegal, but determining which are or are not legal could be quite complicated in a particular situation.

To a point, military members can rely upon the inference of legality, but in making the judgment as to the applicability of the inference, would not their perceptions of the order-giver be influential? Just to be fully nonpartisan (since I’ve already scrutinized Mr. Trump), should we not also think about how the military might respond to a controversial order given by a President Clinton whose honesty and trustworthiness, the polls indicate, is deemed open to question by the general public from which the all-volunteer force is drawn?

In the same spirit of non-partisanship, allow me to rephrase and redirect to Secretary Clinton a form of a quote of mine that has has been cited in reference to Mr. Trump: my view is that any democracy has to be concerned about the kind of civil-military crisis that could arise if its armed forces comes to doubt the honesty and trustworthiness of the leader giving it orders. You don’t want the military thinking it has to constantly question and second-guess the integrity of every order being issued by the commander-in-chief.

How should the polity deal with all this?

Although I don’t agree with Professor Brooks’ op-ed in all particulars, I think she gets it right by suggesting that rather than relying upon the military to disobey what it thinks are improper orders, we ought to ensure that the right order-giving political leader is elected in the first place. That means, as she says, that “[c]itizens need to speak out strongly and repeatedly, in the media, in the classroom, in the neighborhood and on the streets….And [they must not] forget to vote.” I agree!

Just for the record, I am a registered independent, and as a retired military officer I do not publicly endorse any candidate (although I gave a small donation to an Presidential aspirant no longer in the race).

https://sites.duke.edu/lawfire/2016/03/10/have-presidents-ever-given-the-military-illegal-orders-yes-the-surprising-listand-more-about-the-law-of-military-orders/