Lawful Orders
Imagine my surprise at learning that for 24 years of military service I was actually being taught the ways of sedition and treason. At various points along my career, I had been taught that, as an officer, my duty to the Constitution required me to disobey illegal or unlawful orders. Sen. Slotkin, Sen. Kelly, Rep. Deluzio, Rep. Goodlander, Rep. Houlahan, and Rep. Crow, all of whom had distinguished careers in the Armed Services or the Intelligence community, were apparently taught the very same thing during their careers too, because they made a video of themselves speaking directly to the military, reiterating the basic duty to disobey illegal orders.
In response to that video, the President of the United States took to (what else?) social media to write “This is really bad and Dangerous to our Country. Their words cannot be allowed to stand. SEDITIOUS BEHAVIOR FROM TRAITORS!!! LOCK THEM UP???” He went on add, “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand — We won’t have a Country anymore!!! An example MUST BE SET.” If there was any curiosity regarding what kind of example must be set, President Trump wasn’t going to leave anyone hanging (pun intended) on that count. “SEDITIOUS BEHAVIOR, punishable by DEATH!”
Hence the opening statement that apparently I, and every elected Congressional Representative and Veteran in that video, along with pretty much everyone in the military, have been educated as seditionists and traitors.
Obviously that’s a facetious statement, and the ravings of a depraved man who is a danger to the American system of government do not define the boundaries of truth, but he certainly thinks they do, which is a key component of the depravity and danger. There was some public outcry about the thoughts he vomited onto his “Truth Social” website…not as much as would be expected if the Executive had just publicly called for the death of duly elected Representatives empowered by Article I of the Constitution…but perhaps the public is so numb from the daily trainwreck that is Trumpland that it’s difficult to maintain that level of shock. The MAGA faithful aren’t shocked at all, because this is why they voted for him.
When asked whether the President of the United States wants to kill members of Congress, White House Press Secretary Karoline Leavitt offered an eloquent defense of his statements: “No.”
And then, in a rhetorical technique familiar to every child who has been caught misbehaving, she pivoted immediately to attempting to accuse the aggrieved party of even worse infractions. (Honestly, can we get some hardened middle-school teachers to start questioning these people?) “Many in this room want to talk about the President’s response, but not what brought the president to responding in this way…The sanctity of our military rests on the Chain of Command, and if that Chain of Command is broken, it can lead to people getting killed. It can lead to chaos, and that’s what these members of Congress who swore an oath to abide by the Constitution are essentially encouraging.”
Let’s break that down.
Yes, people do want to talk about the President’s words, because the Article II Executive absolutely should never say things like that, and none of the American people nor the Congress should tolerate it. When you say things like that and also wield Article II powers, in addition to possessing the knowledge that your words will incite your faithful mob to action (remember Jan. 6, 2021?), it matters a lot.
Additionally, the “sanctity of our military” does not rest on the Chain of Command. It rests on our oath to the Constitution, and on the Rule of Law. Disobeying a legal order is sedition, and if members of Congress had posted a video urging the military to resist the legal orders given in a conflict authorized by the Congress, then this would be an entirely different conversation, yet one that still doesn’t rise to the level of execution. But these members of Congress simply reiterated what we in the military have always been taught. What’s exceptional is that they felt they needed to do so. What Mr. Trump is angry about is the fact that people who are a part of the Constitutional apparatus that establishes the baseline legality of orders are claiming that he is issuing illegal orders, and will likely issue more, and reminding Servicemembers of their duty.
I’ve previously written about the legal dangers to Servicemembers, and the precarious situation they are being placed in. While military members have an explicit duty to refuse illegal orders, the system presupposes legality. One of the many functions of the Chain of Command is vetting the legality of orders as they are promulgated, thus allowing personnel at all levels to presuppose legality. However, the Trump Administration has deliberately taken away the tools available to the Chain of Command to vet the legality of orders, leaving it up to officers at every level to make that hard decision on their own. As the orders promulgate through multiple levels, every level they pass through makes it more likely that echelons below will presuppose legality, never factoring that upper echelons have been deprived of legal counsel, and that the most senior Constitutional advisors in the military Chain of Command are not, in fact, advising the President on legality. So, I would agree with Ms. Leavitt regarding the importance of the Chain of Command to the military, and inquire why the Administration has seen fit to try to break at least one if its most important functions. The inability of the Command structure to determine legality in a system that presupposes it does, in fact, lead to chaos.
The sanctity of the military rests on our oath to the Constitution, but the discipline of the military rests on the Chain of Command, which harnesses and directs the dangerous implement that is the military in carrying out orders. In addition to maintaining order and discipline in a field of human endeavor where chaos and destruction are endemic, our Chain of Command in our U.S. military traditions and culture is disciplined in verifying the legality of orders to preserve the sanctity of the institution. It then promulgates, operationalizes, and executes the intent of strategic orders in an efficient and orderly manner. Strip away the ability and responsibility to vet the legality of orders, and an efficient, disciplined Chain of Command will do all those things with illegal orders. History has many examples of highly disciplined chains of command which committed illegal acts and atrocities with the utmost order and discipline. Then, in one prominent example, we hung them after the U.S. military, along with the Allies, defeated them. However, Gen. Kelly has related the tale of Mr. Trump’s admiration for Nazi Generals. A functioning U.S. Chain of Command that upholds our laws and values does indeed result in chaos; for the Trump Administration, and for the military sadly placed in that position. A Congress that actually asserted its Article I prerogatives and challenged an illegal directive would also be chaotic for the Trump Administration’s vision for a legally and morally stunted Chain of Command unable to determine right from wrong.
Where does legality come from? It does not come from the President, unless the Executive is directing an action that essentially passes “the Caroline Test”, a 19th Century convention allowing states the right of non-deliberative preemption if, as written by Secretary of State Daniel Webster, the “necessity of self-defense was instant, overwhelming, leaving no choice of means, and no moment of deliberation …, and that the British force, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it”.
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However, fundamentally, legality comes from the Congress exercising its Article I powers. As it so happens, six of the people vested with Article I powers made the video in question, and are being essentially threatened with death by the Executive, who with Article II powers carries out the authorization given by Congress. The Executive, however, has no authority to define legality save for under applications of the Caroline Test, and even then only on a highly limited basis. That, of course, is why the Trump Administration claims that literally everything is an emergency. But saying it doesn’t make it so.
Finally, various international laws like the Geneva Conventions govern what is a lawful order that the Executive can give to the military. To use an extreme and obvious example, if the Executive branch tasks the military with destroying a hospital, the military is obligated to disobey that order, even if the order is given in a conflict authorized by the Congress.
So. Current military actions do not pass the “clear and present danger” test, have not been authorized by the Congress, and are not being carried out on legal targets. (For the record, criminals are not legal targets.) Military actions that the Administration appears to be contemplating — invading Venezuela, or Greenland, or perhaps even U.S. cities — pass none of these tests either.
What if some military members determine that an order is indeed unlawful, and exercise their duty to refuse it? That brave individual will stand athwart history when they are charged under Article 92 of the UCMJ, and the order in question is scrutinized in a trier of fact. That is because a valid defense against a charge under Article 92: Failure to obey an order or regulation, is demonstrating that the order was unlawful. Article 92 specifies a charge of defying a legal order or regulation. It is doubtful that anyone is eager to be the individual hanging in the balance on such a decision, but it would certainly be momentous for our military and our country if a military court determined in an Article 92 hearing that an order was, in fact, illegal.
Furthermore, since Mr. Trump is so eager to throw around the possibility of execution for sedition, its worth noting Article 94 of the UCMJ, which reads:
“Any person subject to this chapter who-
(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.”
No one in the military is currently violating this, members of Congress are not subject to UCMJ, and the six who made the video that has so enraged Mr. Trump are repeating the very lessons I learned throughout my own military career. However, there were multiple people at the Capitol on Jan. 6th, 2021, who were subject to the UCMJ under Article 2, and who were attempting to stop the Constitutional transfer of power. In other words, people subject to the UCMJ who were engaging in sedition or mutiny. They, of course, have all been pardoned.
Even bringing up Jan. 6th, 2021, is really just moments of my life I’ll never get back, because we live in a fractured, post-truth reality. For people who place tribe above truth, the facts of Jan. 6th will never matter, and sedition will always be defined as disloyalty to Mr. Trump and their tribe, not disloyalty to the Republic.
It should be a matter of grave concern, though, how many veterans showed up to topple democracy on Jan. 6th, and how veteran families voted disproportionately for Mr. Trump despite every appalling thing he’s said about military veterans, despite every blatantly authoritarian statement, despite every assault on the Constitution and the Rule of Law.
It’s a matter of grave concern because, as I previously wrote, the fractures are being deepened, the battle lines drawn. In a moment unprecedented in U.S. history, when the Administration is assaulting the Constitution on multiple fronts, it is drawing the military into its orbit while Legislators feel compelled to remind the military of its duty under law. If that’s where we are, when the illegal orders come, how many will obey them not out of confusion, but out of a desire to support their chosen leader over the law and the Constitution? I would like to say precious few, but voting patterns, numbers of veterans engaging in sedition on Jan. 6th, and my own personal knowledge suggests that this could be a gut-check moment for our country that we don’t want to face. A President willing to test the military and the Congress on the question of the military’s loyalty — to law or to autocrat — is the clearest threat our Constitution has ever faced.
