National Interest

by Michael O’Hanlon

    Except in clear and extreme cases, Congress and the courts are better places to adjudicate the legality of the military orders from the president.

Lost in the controversy last year between the six Democratic members of Congress and President Donald Trump over whether American troops should obey the president unconditionally is a key question: what exactly constitutes an illegal military order and how can we expect uniformed military personnel to distinguish between legal and illegal orders

    For context, it may be helpful to begin with a story from President Trump’s first term. During the summer and fall of 2017, US-North Korea relations deteriorated badly after a series of North Korean missile and nuclear tests. At one point, Trump and the North Korean dictator, Kim Jong-Un, exchanged nuclear threats, with Trump famously pointing out that his nuclear button was the larger of the two. The United States sent additional munitions and other supplies to the Korean peninsula and sent three aircraft carriers to the region.

    A preemptive American attack did not seem out of the question (all of this was before the three summits between Trump and Kim in 2018 and 2019 that led nowhere in policy terms, but cooled off the crisis). Then, in November of 2017, General John Hyten, head of Strategic Command (and future vice chairman of the Joint Chiefs of Staff), was asked by a reporter what he would do if given an illegal order to conduct a nuclear strike.

    Hyten wisely replied, “I provide advice to the president; he will tell me what to do…And if it’s illegal, guess what’s going to happen  I’m going to say, ‘Mr. President, that’s illegal’…And guess what he’s going to do  He’s going to say, ‘What would be legal ’ And we’ll come up with options…It’s not that complicated.” Rather than wade into a detailed public discussion of what kinds of orders might be considered illegal, Hyten smartly kept things general and somewhat vague.

    But what of more concrete and specific possibilities, such as those in the news today  As for US enlisted military personnel, their oath, like that of officers, is to the Constitution, but they are also expected to obey orders plain and simple. Debates over policy are left to officers. Their oath reads as follows:

    I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

    The Uniform Code of Military Justice reaffirms these principles, for example, in Articles 91 and 92. Thus, for enlisted personnel, their oaths require them to obey all orders unless such orders are manifestly illegal under US law, the Geneva Conventions, or other sources of the Law of War (or Law of Armed Conflict), as codified in the US Law of War Manual and the Manual for Courts-Martial. They must avoid blatant criminality, including murder, torture, planting fake evidence and carrying out wanton destruction, but are otherwise supposed to do as they are commanded.

    Things are more complicated for officers and rightly so, because they are part of a profession of arms that has developed rules of proper discipline and a system of ethics over the centuries. Given the many atrocities committed in past wars, most notably World War II, it was determined that having officers simply obey orders is insufficient guidance. Orders must be lawful and officers are expected to exercise professional military judgment in making that assessment.

    To take a few cases from the past: the US carpet bombings of the Ho Chi Minh Trail during the Vietnam War were not considered war crimes within the US system because there was a widely accepted military logic to the tactics, however morally questionable it may have been. In contrast, the 1968 My Lai massacre of unarmed civilians led to the conviction and imprisonment of Lt. William Calley for war crimes.

    Yet the courts-martial (controversially) deemed there to be a sufficient gray area that the enlisted soldiers serving under Calley were not convicted, given the strong presumption that they should follow orders. In yet another case, that of the torture of Iraqi inmates at Abu Ghraib prison in Iraq, several American enlisted personnel were in fact convicted of crimes because they mistreated Iraqis on their own volition and when the prisoners posed no plausible threat to them.

    What does this mean for today’s policy debate  Three cases seem most pertinent: the deployment of US troops into American cities, recent actions against Venezuela and a hypothetical invasion of Greenland, as often discussed by President Trump.

    First, I would argue that troops called into a domestic situation in an American city should not use lethal force against peaceful protesters—even if commanded to by superior officers. Of course, in many situations, there will be ambiguity about whether protesters are all peaceful and that is where difficult judgment calls must be made, with most of the heavy lifting expected from the officers.

    As for most other tasks troops might be asked to perform within American cities, it is difficult to argue that troops on the ground should disobey their orders. Unless life is being lost, there is recourse to examine the legality of various military deployments through the court system and that is where disagreements should be resolved.

    What about Venezuela  I would argue that killing suspected drug smugglers is illegal if there is a plausible alternative, such as incapacitating their boats and arresting them. Still, the administration has made an alternative legal case that some find credible. In this situation, it is difficult to ask troops, whether enlisted personnel or officers, to determine the correct legal opinion and disregard the incorrect one.

    Similarly, the snatching of Venezuelan president Nicolas Maduro and his wife took place in a legal gray area. Although it appears more illegal than legal under international law and the Law of Armed Conflict, there were US arrest warrants that provided at least a veneer of legality under US (not international) law. Again, a tough one to ask military personnel to adjudicate in real time.

By contrast, a possible invasion of Greenland is a whole different kettle of fish. One hopes the idea is now off the table, but it is hard to be sure. As a blatant land grab by one state against another, it would unquestionably be illegal under international law. Should a military officer, as a matter of proper ethics and professional obligation, disobey it if told to undertake such an operation

    Given the naked violation of the UN Charter that an invasion would represent, I would argue that such a move would be illegal and that orders to conduct it should therefore be disobeyed. Congress might also consider cutting off funds for any continued operations in Greenland, as a bare minimum of what its proper response might be in such an egregious situation—and it might also signal that it would not approve future promotions of military officers who participated in the Greenland travesty.

    A more complex case would arise if President Trump initially camouflaged any such invasion as a military exercise or emergency deployment and no lethal force were used in the process. If that were the case, I would hope Congress would still strongly object and seek to prevent or undo it and refuse to annex the territory legally (in all previous cases where the US annexed land, with the Louisiana Purchase in 1803 and then Florida in 1819 and Texas in 1845 and the Oregon Territory in 1846 and the American southwest in 1848 and Alaska in 1867 and Hawaii, Puerto Rico and Guam in 1898, Congress had a crucial role). But it would not be fair or realistic to expect the uniformed military to refuse such a command.

    On balance, in the vast preponderance of cases, it is the courts and Congress, not the American armed forces, that should contest President Trump if he issues orders to the military that they find illegal, given that the armed forces are subordinate to civilian leadership under the US Constitution. But there can be exceptions in extreme situations.