The military: When is an order illegal?

Report: Morale in the military is low and falling fast

How do individual service members know “which orders are illegal?” They often can’t, which is why the responsibility for that judgment belongs high in the military chain of command.

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“Trump is unraveling,” said Brian Karem in Salon. The president recently posted an unhinged rant in which he called a group of six Democratic legislators “traitors” and accused them of engaging in “seditious behavior punishable by DEATH.” The legislators, who each served in the U.S. military or the intelligence community, had released a video reminding military officials they had an obligation to “refuse illegal orders” from the commander in chief. In their statement, Michigan Sen. Elissa Slotkin (a former CIA officer), Arizona Sen. Mark Kelly (a retired Navy fighter pilot and NASA astronaut), and four House members said the administration was “pitting our uniformed military and intelligence community professionals against American citizens,” and reminded these officials they had taken an “oath to protect and defend this Constitution,” not the president. After Trump posted his inflammatory ravings, the Pentagon announced that it was investigating Kelly, as a retired officer, for possible breaches of military law.

No question Trump is an “unhinged rageaholic,” said Jim Geraghty in National Review. But the lawmakers in the video didn’t specify any “solid and recent examples” of the president giving illegal orders. When a Fox News host asked Colorado Rep. Jason Crow—one of the video’s participants—for examples, he went back five years to Trump asking if soldiers could shoot Black Lives Matter protesters “in the legs.” That question, while alarming, was not an order. Perhaps not, but there’s “very strong” recent evidence of illegal commands, said Greg Sargent in The New Republic. A top military lawyer reportedly warned that the president’s bombings of supposed drug smugglers in the Caribbean is likely to be illegal. He was shunted aside, but Adm. Alvin Holsey, who oversaw naval operations in the area, resigned due to concerns that the strikes rested “on shaky legal ground.”

Trump has put our military “in an impossible situation,” said David French in The New York Times. As a former military lawyer myself, I am hearing from anguished current servicepeople involved in the Caribbean attacks, and “they feel real moral doubt” and “profound legal confusion.” How do individual service members know “which orders are illegal?” They often can’t, which is why the responsibility for that judgment belongs high in the military chain of command. Sadly for our nation and our sailors and soldiers, Trump is making the military’s “most senior leaders complicit in his unlawful acts.”