Have Presidents ever given the military illegal orders? Yes; the surprising list…and more about the law of military orders

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).

 

 

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