The legal and ethical duty of military members to refuse to obey orders that are manifestly unlawful has been a topic of debate for many decades.
Perhaps the most famous example, and legal precedent, was set during the Nuremberg Trials after World War II. Trials that “established the global legal principle that ‘just following orders’ is not a valid defense for war crimes.” A principle that has been adopted by the U.S. military.
It is interesting – perhaps foreboding – that this issue became a hotly debated topic during the first Trump presidential term.
Less than a year into Trump’s first term, the STRATCOM Commander, Air Force Gen. John E. Hyten, responsible for overseeing the nation’s nuclear arsenal, deemed it necessary to tell an audience that, if President Trump ordered a nuclear strike which he believed to be “illegal,” he would not blindly follow orders.
Gen. Hyten said, “We don’t swear allegiance to a colonel, we don’t swear allegiance to any individual. We swear an oath to an ideal as written in the Constitution and the people of this Command take that very seriously…”
Similar concerns were expressed by several other prominent military and political leaders during the next three years of Trump’s first presidency.
In November 2020, in the aftermath of the 2020 presidential elections that saw Joe Biden defeat Trump — a loss that had Trump “stewing” — Trump’s own Chairman of the Joint Chiefs of Staff, Gen. Mark Milley, felt it necessary to reassure the nation where the military stood.
Gen. Milley said, “We do not take an oath to a king or queen, a tyrant or dictator. We do not take an oath to an individual. No, we do not take an oath to a country, a tribe, or religion. We take an oath to the Constitution, and every soldier that is represented in this museum, every sailor, airman, marine, coast guard, each of us will protect and defend that document regardless of personal price…” He concluded. “We will never turn our back on our duty to protect and defend the idea that is America, the Constitution of the United States against all enemies foreign and domestic.”
Just ten months into Trump’s second term, that issue has raised its head again, this time brought to the forefront by a video statement by six Members of Congress. A statement that elicited a most disturbing response from Donald Trump.
In the video, the six Democratic lawmakers — all Veterans of the U.S. military or intelligence services– remind our military of the legal, constitutional and moral principle that they can refuse to obey unlawful orders.
Trump’s response was “even by his standards, shockingly irresponsible.” He called the Democrats’ message “seditious behavior punishable by death” and suggested “these traitors to our country should be arrested and put on trial.”
While it should be self-evident that a soldier should not carry out a patently unlawful order, the issue arises that it could be extremely difficult, especially in a high-pressure, high risk situation, such as combat, for a service member to quickly and with certitude determine the legality of an order.
Making the quandary worse is the fact that refusing to carry out an order that is eventually determined to be lawful can lead to severe penalties under the Uniform Code of Military Justice (UCMJ).
It is this author’s sincere belief that while the six lawmakers – in their very short, sparsely worded video – are reminding servicemembers of their obligation to refuse to carry out illegal orders, and that the nation has their backs in these difficult moments, they have a broader, more ominous message.
They are clearly referring to a fundamental danger facing our nation today, a danger that has been addressed by Generals Hyten, Miller and by many others.
Note these words in the video:
• “This administration is pitting our uniformed military and intelligence community professionals against American citizens like us.”
• “Right now, the threats to our constitution aren’t just coming from abroad, but from right here at home.”
• “No one has to carry out orders that violate the law or our Constitution.”
• “We need you to stand up for our laws, our Constitution and who we are as Americans.”
The word “Constitution” appears five times in the short, 204-word video.
This alone should tell us something. The lawmakers are not merely talking about a Private declining a Drill Sergeant’s order to punch a new recruit in the face. Nor about a Lieutenant refusing a Major’s order to falsify an operational record.
They are referring to the ongoing distortion of the Constitution; the consistent defiance of civil-military norms; the dispatching of National Guard and active-duty troops to American streets to quell alleged civil unrest and to fight crime; the constant testing of every constitutional and legal boundary; the “[blowing] past legal concerns in deadly strikes on drug boats”…
Lt. Gen. Mark Hertling (Ret.) writes at The Bulwark that the video comes “in a moment when Americans are hearing loud claims about using the military to solve political disputes, intervene in elections, or take actions beyond statutory authority.”
But he also seeks to reassure us.
While discussing the differences between the oath of enlistment and the oath of office (commissioning), Gen. Hertling writes, “People are right to worry. But they should also understand the guardrails already in place. The military has been here before—they have already, at times in our history, faced unlawful pressure, political manipulation, or attempts to turn the armed forces into a tool of personal power.”
In a Sunday opinion column at the New York Times, “Trump Has Put the Military in an Impossible Situation,” Iraq War Veteran and New York Times columnist David French makes it clear that the concern expressed by the six lawmakers is not entirely about expecting enlisted soldiers and junior officers “to know when criminal activity rises to the level of a true military threat under international law.”
He writes, “But we do expect our most senior leaders to know these distinctions,” and adds, “Trump has put the military in an impossible situation. He’s making its most senior leaders complicit in his unlawful acts, and he’s burdening the consciences of soldiers who serve under his command.”
Paraphrasing French’s “bottom line”: When it comes to implementing unconstitutional or unlawful decisions, the responsibility must rest with senior military officials, not with individual soldiers, sailors, airmen, Marines, guardians, and coat guardsmen.
No illegal or unconstitutional order should ever make its way down to our men and women in the ranks. Such accountability rests squarely with our top military leaders whose sole sworn loyalty is to the Constitution.
I believe that is the important message the six lawmakers are conveying.
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Please read the New Republic interview with one of the six lawmakers appearing on the video, Representative Chrissy Houlahan, “Transcript: Trump’s Tirade Calling for ‘Death’ to Dems Backfires Badly.”
