Yes, the law of military orders matters, and here’s how

In recent weeks, professors from four U.S. military institutions have expounded on what is in essence the law of military orders (even if they don’t acknowledge it as such).  Decide for yourself, but I found each writing could leave readers with misimpressions as to how military law works.  It’s time to set the record straight before military members find themselves in real legal trouble.

To be clear, what we are talking about is the obligation to obey lawful orders–even ones a servicemember may dislike.

Lawfire^® readers will recall I’ve addressed aspects of this topic before, so permit me to include relevant parts of those posts in this discussion.  Of course, this post can’t possibly address the entire corpus of the law of military orders, but it does aim to grapple with some of key issues raised by the pundits’ op-eds and essays.

The problematic op-eds/essays

In their op-eds/essays the professors advocate their perspectives related political issues and/or their views as to ethics.  Of course, advocating viewpoints is one thing, but it is something else when the law of military orders is implicated.  Here is a sampling of some of what they argue that I find troubling:

At the end of September, a West Point professor penned an op-ed in the New York Times in which he claimed that “resisting a legal order is not necessarily a violation of political neutrality.”  He indicates that such resistance can be “justified” if the soldier thinks it would “jeopardize” the soldier’s own conception of military “neutrality.”  The professor (who is not a lawyer) seems to think that an idiosyncratic assessment of “neutrality” is some kind of totem that necessarily supersedes the requirement to obey legal orders.

In another essay, a professor (also a non-lawyer) from the National Defense University says that depending upon the results of the election, the armed forces ought to be ready to “lawyer-up.”  He says the military should “concern itself not merely with the legality” but with what he oddly calls the “ethicality” of the orders. As is detailed below, military law – rightly – does not allow sevicemembers to employ their own personal construct of “ethics” to defy a lawful order.

Likewise, two other professors, one from the Naval Academy and the other from the Naval Postgraduate School (both identify themselves as “military ethicists”), wrote an essay that speaks about “refusing to follow orders” if the servicemember decides the orders are for “political ends.”  Actually, the centerpiece must be lawfulness, not an individual’s determination of what may or may not be “political.”  

Moreover, in today’s world “political ends” is a label that can be widely applied if one is disposed to do so.  Indeed, warfighting itself could be branded as being for “political ends.”  After all, the great military theorist Carl von Clausewitz famously observed that “war is not merely an act of policy but a true political instrument, a continuation of political intercourse, carried on with other means.”

Political neutrality 

Of course, political neutrality is—or should be—the aim of the military of any democracy, especially ours.  In Greer v. Spock the Supreme Court specifically approved a policy barring partisan political campaigning on a military base as the policy rightly aimed at keeping the military “insulated from both the reality and the appearance of acting as a handmaiden for partisan political causes or candidates.”  The Court added:

“Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control.  It is a policy that has been reflected in numerous laws and military regulations throughout our history.”

So, yes, partisanship must obviously be avoided, but that doesn’t mean (as discussed below) that the administration of a duly-elected President cannot lawfully implement their party’s agenda.  Simply labeling something as “political” does not ipso facto make it impermissibly partisan and unlawful.

Lawful orders must still be obeyed even if they offend an individual’s personal ethics, political judgements or moral beliefs.

To reiterate, lawfulness is the decisive issue. Along that line, military law provides a rather wide definitional aperture. 

The all-civilian Court of Appeals for the Armed Forces (CAAF) cited with approval a section of the Manual for Courts-Martial that says that a lawful order must relate to a military duty, but such duty “includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.”

We need to keep in mind that in a democracy, elected leaders have a right to enact policies they promised to put in place if elected.  Not everyone will agree with those policies but, so long as any directives implementing those policies are lawful, the military must carry them out.

Unfortunately, none of the writers made it clear that military law does not brook disobedience of lawful orders, even if the troop concerned sincerely thinks the orders are very unwise, and even damaging to national security.

Why?  Consider Professor Peter Feaver’s observation in Armed Servants: Agency, Oversight, and Civil-Military Relations, his classic study of civil-military relations:

“In a democracy, civilians have the right to be wrong.  Civilian political leaders have the right to ask for things in the national security realm that are ultimately not conducive to good national security.  The military should advise against such policies, but the military should not prevent those policies from being implemented“ (Emphasis added). 

In fact, even if an individual judges a lawful order to be immoral, it typically must still be obeyed. 

The law is rather definitive on this. The  Manual for Courts-Martial provides that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”  (The Manual, by the way, is an Executive Order prescribed by law).

The obvious rationale for this rule of military orders is that in a pluralistic country like the U.S., there are a multitude of personal philosophies — political, ethical, and otherwise – and the armed forces could not efficiently or effectively function if it needed to cater to each belief before expecting obedience to a lawful order. 

This requirement illustrates that those who volunteer to serve in the armed forces must sometimes sacrifice constitutional rights that civilians take for granted.  In Burns v, Wilson, the Supreme Court pointed out that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty.”

An example:

Consider a pro-life commander who sincerely believes––as the Pope does––that abortion is “murder.”  That belief would not justify failing to follow the Secretary of Defense’s directive aimed at aiding military personnel wanting to obtain abortions.

Because the use of appropriated funds for travel and transportation for a service member wanting to terminate a pregnancy has been deemed legal, the commander must authorize such expenditures irrespective of the commander’s personal beliefs as to the morality of abortion. 

Similarly, commanders must follow the directive even if they believe doing so is implementing a partisan political ideology that “jeopardizes neutrality“ or offends their personal notion of “ethicality.”

Any exceptions?  It is possible some servicemembers might be able to obtain an approved religious accommodation that would relieve them of following certain directives, but only if doing so would not have “an adverse impact on military readiness, unit cohesion, good order and discipline, or health and safety.”

Given the consequences for “resisting” or failing to obey a lawful order, it is imperative that military members understand clearly that absent an approved religious accommodation the “the dictates of a person’s conscience, religion, or personal philosophy” would not excuse a military member’s disobedience of an otherwise lawful order.

Orders may be inferred to be lawful

It is certainly true that members of the armed forces must not obey illegal orders, but the law also recognizes the inherent difficulty of recognizing illegality in some military circumstances including, and especially, the chaos of combat.

Accordingly, the Manual for Court-Martial puts it this way:

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. (Emphasis added.)

This important aspect of the law of military orders isn’t covered in the op-eds/essays. Decide for yourself, shouldn’t servicemembers be made aware of the consequences of disobedience, and not led to believe they can personally choose to disobey legal orders without repercussions?

Patently illegal orders 

The issue of “patently” illegal orders was discussed by the all-civilian Court of Military Appeals in the case of Lt. William Calley. (The CMA was the predecessor to today’s similarly all-civilian CAAF).

Calley was the infamous commander in the Vietnam era My Lai massacre incident.  The court in his case described a patently illegal order as “one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.”

Moreover, the court cited with approval this quote from Colonel William Winthrop (1831-1899), who the Supreme Court calls the “The Blackstone of Military Law”:

“But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline.  Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness…”(Emphasis added.).

The Constitution, the oath, and an officer’s commission

One of the op-ed writers claims “when members of the military take their oath of office, they pledge to defend the Constitution, not the president.”  Similar statements are made by many pundits these days. 

One has to ask: do these writers think the military has no obligation to defend the President from enemy attack?  Domestic terrorists?

Furthermore, it is the Constitution that establishes the President as Commander-in-Chief.  This has consequences in the law of military orders.  Consider the oath for enlisted personnel. 

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 (Emphasis added).

The officer’s oath is different because it is the same oath taken by all civilian officials.

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; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

 It is in the commission that every officer must explicitly accept that they agree to obey lawful orders. In their book, The Armed Forces Officer, Richard M. Swain and Albert C. Pierce explain that in America’s military commissions:

The officer is admonished to “observe and follow such orders and directions . . . as may be given by” the President or the President’s successors, “or other Superior Officers acting in accordance with the laws of the United States of America.” No grant of professional discretion exempts any Armed Forces officer from the obligation to act within the confines of the law.(Emphasis added).

Also, it is worth clarifying that the oath to support and defend the Constitution is not free rein for individuals to interpret it as they wish. As Professor James Joyner has written:

Most Constitutional scholars would side with Berkeley law professor Orin Kerr in reading the provision much more narrowly. Wrote Kerr: “The oath is probably best understood” not as an invitation for millions of Americans to independently enforce their own view of the Constitution, rooting out domestic enemies as they see fit, but “in its historical context as a promise to oppose political reforms outside the Constitution. You have to stay loyal to the government that is based on the Constitution, and you can’t support a rebellion or overthrow of that government.” (Emphasis added.)

The use of the military to restore order and ensure compliance with the law 

The use of military forces for domestic operations can be legally complex. Among other things, the Posse Comitatus Act limits the use of the military to enforce the law. It says:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. 

The Insurrection Act (mentioned in several of the op-eds) is an exception to the Act that many pundits seem to think is the only legal authority to use the military in a law enforcement capacity. In reality, there are numerous other statutory exceptions.  

Several of these do not—as some seem to believe—necessarily require an in extremis situation.  For example, Federal law permits the use of the military, believe it or not, to enforce the rights of owners in guano islands. 

Let’s also not forget that the Posse Comitatus Act does not, in any event, have a sainted origin. 

Rather, it was sourced in racism.  During Reconstruction, Federal troops remained in South to protect the rights of freed slaves, something that infuriated southern Democrats since it enabled Black voters to be instrumental in keeping Republicans in power throughout the former Confederacy. (You’ll recall that President Lincoln was a Republican.)

The issue came to a head as a result of the hotly contested election of 1876 between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Eventually, a deal was struck where Hayes got the presidency, and the Democrats got the troops withdrawn from the South as well as the Posse Comitatus Act. A scholar has described the disturbing result:

“Not only did the Act virtually end the Reconstruction Era, but it promoted Jim Crow Laws while foreclosing the progression towards racial tolerance the 13th, 14th and 15th Amendments encouraged within the Southern States.”

Furthermore, a proper understanding of the Posse Comitatus Act must include consideration of the “sense of Congress” found in the 2002 legislation establishing the Department of Homeland Security. Now codified 6 U.S.C. § 466, Congress reaffirmed the importance of the Posse Comitatus Act, but also said:

“Posse Comitatus Act is not a complete barrier to the use of the Armed Forces for a range of domestic purposes, including law enforcement functions, when the use of the Armed Forces is authorized by Act of Congress or the President determines that the use of the Armed Forces is required to fulfill the President’s obligations under the Constitution to respond promptly in time of war, insurrection, or other serious emergency.” (Emphasis added.)

Accordingly, it is apparent that as a matter of law, the President–beyond the many statutory authorizations–also has independent power indeed, “obligations,” under the Constitution which may necessitate the use of the armed forces in a “serious emergency.”

Troops may be needed to control disorders, not lawful protests

I’ve always been unenthusiastic about using the military–and especially the active duty military–for domestic law enforcement purposes (see e.g., here and here). Yet I also realize there are times when troops are needed. 

As the three-volume series by the U.S. Army Center of Military History’s on The Role of Federal Military Forces in Domestic Disorders illustrates, there are scores of times when Federal forces were used.  As the foreword to volume III puts it:

“Our Army often undertakes assigned missions it would not have chosen for itself. Perhaps the most complex, demanding, and controversial of such missions features its intervention in domestic civil disturbances—upholding lawful government when the threat to law and government comes from among our own American citizens. As unappealing as the image of American soldiers confronting American citizens may be, the military responsibility to assist in securing domestic tranquility has deep constitutional roots. For over two hundred years our soldiers have often proved the instrument of last resort when chaos seemed imminent.” (Emphasis added)

A classic example occurred when President Eisenhower was certainly justified in sending paratroopers to Little Rock in 1957 to help desegregate the schools. While their use of fixed-bayonets to prod those who were illegally blocking the Black students from entering their school is not what we hope would be needed to help to ensure the rule of law is observed, the show of force succeeded in restoring order and protecting the rights of Black Americans.

It is worth reiterating that I am not talking about troops (or anyone else) suppressing lawful demonstrations or protests; rather this is about using troops when there has been a breakdown of law and order beyond the capacity of civilian law enforcement to contain it, especially when illegal actions threaten the security and rights of others.

The public recognizes that unlawful disorders can sometimes require the use of troops.  Recall that during the outbreaks of disorders in the early summer of 2020, Forbes reported a poll that found “58% of Voters Support Using the Military to Help Police Control Protests.”

Orders may require immediate obedience

As indicated above, one of the writers argues that military members are “ethically justified” in “criticizing and even resisting” orders if they decide the orders jeopardize their personal idea of “neutrality.”

This is not the law. In fact, military members should not expect that they can take time to deliberate or “resist” as to whether or not to obey a lawful order. The Manual states:

Time for compliance. When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience.  Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. (Emphasis added.)

Similarly, in the 1983 case of Chappell v. Wallace the Supreme Court noted:

“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.” (Emphasis added.)

Do military personnel have a right to “lawyer up” before obeying an order?

As indicated above, one pundit recommended military personnel “lawyer up” before obeying an order. 

Military personnel do have a right to consult counsel in certain situations. The Army’s Criminal Law Deskbook describes those circumstances as essentially when someone is “questioned (for law enforcement or disciplinary purposes) by a person subject to the UCMJ who is acting in an official capacity, and perceived as such by the suspect or accused.”

In addition, the Criminal Law Deskbook also correctly says that” [u]nder the Sixth Amendment, a right to counsel is triggered by initiation of the adversarial criminal justice process.” Obviously, the mere receipt of an order does not typically trigger an entitlement to counsel. In short, there is no right to consult with counsel prior to obeying an order.  

Moreover, taking unauthorized time to consult with counsel while delaying obedience to an order might not only itself be a serious insubordination, but also dangerous to other soldiers and even innocent civilians in operational settings where mere seconds can mean life or death. 

Concluding thoughts

Military members need clarity as to the law of military orders. In Parker v. Levy, the Court cited the 1890 case of In Re: Grimly for the proposition that:

“An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.” (Emphasis added.)

This post is, hopefully helpful, but it obviously isn’t a complete study.  Military members with questions about the law of military orders should address them – now—with their serving judge advocate. Taking advice from op-ed writers (especially those who are not lawyers) about topics that necessarily involve the law of military orders could end badly…very badly.

Others may examine the op-eds/essays and dismiss them as simply partisan political rhetoric. They may be that, but when rhetoric also carries the potential to blur the law of military orders, it becomes a matter of real concern.

No one has the right to urge military members to refuse their lawful duties (see here).

Regardless of who becomes President, that person is entitled to expect the armed forces to immediately comply with lawful orders, even ones with which individual military members may personally disagree.  

Our security and our democracy require that from the armed forces. The American people trust them, and count on them, to stay true to their commitment to obey legal orders.  And, it’s the law.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!