No, that would have been f’kin unconstitutional. The political branches check and balance the political branches. This is not Myanmar.
And we are now out of Factual Questions and apparently into debating a point you want to make.
We’re getting into very interesting gray territory here. Are you saying that if the military were convinced that Iraq was in no way responsible for 9/11 but Bush and Cheney insisted on invading them, the military was constitutionally bound to obey that order?
No. The legality of the invasion was not open to question because it was approved by congress. Bush would have fired those generals on the spot and replaced them with any of the other generals jumping up and down and shouting “I’ll invade Iraq for you sir!!”. Things could have turned out even worse that way.
There is no hypothetical scenario when the military can make lawful decisions on a political basis. They are the military, they exist to follow orders and destroy things, not to make political decisions. Politicians make the political decisions. It is more important that civil authority is maintained over the military than any other departments of the executive branch.
Thank you for saying this so I didn’t have to. Most people don’t understand what the Joint Chiefs do. They are not Chiefs, they are Chiefs of Staff. It’s right there in the name. They don’t command anything.
Yeah, but certain people keep overlooking this absolutely unavoidable fact, because it’s convenient to pick a significant 4-star flag officer with a big-sounding title in the immediate vicinity of the President and assume that officer is in charge. I wouldn’t be surprised if certain fairly naive Presidents had to have this explained to them, possibly repeatedly.
(And in the interests of maximal literal accuracy, it’s fair to say they have complete command authority of their own staffs. So, within the Pentagon (exclusively), and there are no combat forces there.)
Thank you for bringing this fact to my attention. I was, in fact, unaware that the Joint Chiefs were purely advisory in nature, and had no power over military forces at all. (Is that too strongly worded?) But someone in the military is deciding, with the help of military lawyers, whether POTUS’s orders are lawful or unlawful, and that can be a close call, at least in theory. With a nutball in office from 2017-2021, and running again, and with what to my mind was a delicate and narrow legal decision in 2003 to attack Iraq for reasons of dubious military (and powerful political) basis, this seems to me a valid line of questioning.
You’re also overlooking that the first step in that decison process isn’t in the hands of the military.
The President orders the Secretary of Defense to put the military into action. And the SecDef can delay, obfuscate, and if necessary refuse and be fired.
This article is relevant to that step.
Bottom line: the chain of command obligates everyone to obey the orders of the leaders set above them, which means that the Secretary of Defense is legally obligated to obey the President and order the military into action to the best of its ability, and the military is legally obligated to obey the Secretary of Defense.
However, legal obligation is not the end-all. There is also the moral obligation of disobeying patently illegal orders, and being willing to accept the consequences of doing so.
The Oath of Office for the SecDef, the Oath of Commisioning for a military officer, and the Oath of Enlistment of an enlisted military member have a clear indication of the priority:
For Cabinet Secretaries and Commisioned (or Warrant) Officers:
(with minor variations)
Oath of Enlistment:
Note the highlighted part. “support and defend the Constitution” is the first and most important obligation, and it takes precedence over obedience.
Of course, the Constitution doesn’t defend itself, but defying it and executing illegal orders requires a lot of bad actors who will disregard it.
The point is distinguishing between unwise orders and illegal orders.
The army is not a debating society. (Except in 1917 Russia). They obey orders to do what armies do. The USA invades countries all the time - I would think that Greneda, for example, was more questionable than Iraq. Whether such an action is wise or not, is not up for debate. As mentioned by LSL, there would be delays depending on the logistics etc. which would give the proper authorities (i.e. congress or the cabinet) time to see if reconsideration of the leader or the order was required.
If the general was ordered to do something they know is illegal - use the army to seize the election material in Wisconsin, or occupy that state house, for example - then the general is obliged to refuse. What happens next depends on the situation in Washington. Obviously, the president will try to replace them with a compliant tool or be persuaded of reality. This is the example of the Saturday Night Massacre or similar DOJ shenanigans. Indeed, then the colonels would be obliged to refuse the illegal order if a compliant general ordered it. etc.
(Absent an obvious insurrection or massive disaster, such an order would be illegal. That the vote didn’t go your way is not an insurrection - actual provable real voter fraud is something for the courts, not the army.)
Thanks for that thoughtful reply.
A small point I wish to make, to simplify matters somewhat, is that my assumption is that all the go-betweens who are direct Presidential appointees, SecDef and so on, have been selected specifically for their compliance and total loyalty to the President’s will. That is, in the Trump example, the SecDef (who needs Senate confirmation, of course) is Lindsey Graham, who would easily get confirmed as a sitting Senator but who is unwilling to stand up to Trump, even if he gets a blatantly illegal order, and so on down the line. So for the purposes of discussion, we can dispense with “POTUS doesn’t give direct orders–he gives them to the SecDef who gives them to…” ok? Let’s assume they’re all totally compliant MAGAnuts who would rather die than disobey the President.
So the word goes out: “POTUS, SecDef etc. orders the immediate invasion of [some innocent harmless country that has pissed POTUS off].” What I’m hearing is that this is unwise but not illegal. Even a General who knows perfectly well the country has done nothing to provoke an invasion is helpless to say even “Hey, wait a minute, let’s look at this carefully.” He must order the immediate invasion. Is this nightmare scenario accurate?
No it is not. IMO.
This in not an area where any clarity truly exists. It is all murky and situational. All of it. You could spend a month writing a detailed 10-page what-if scenario. The answer would still be “It depends”. My late wife the military lawyer said “It depends” is the answer to every legal question, civilian or military.
Under US military law, all orders must be lawful before there exists any obligation to follow them. That at least is not debatable. At all. What is “lawful” and which domestic and international laws must be reviewed under which circumstances is highly debatable. The application of those fairly general laws to the specific facts at hand are extremely debatable.
But as a matter of general jurisprudence going back to Nuremberg, the higher up the food chain a decider is, the more subtle and complete their legal analysis must be before complying. A foot soldier is expected to refuse to slaughter corralled civilians in a village when so ordered, but is not expected to debate the finer points of the Geneva Conventions on suitable targets in war as applied to the general objectives of the Army Corps in which he’s embedded. OTOH, Generals are duty bound to make exactly that more nuanced debate abut legitimate objectives. And have the legal staff to help them do that.
As the ICC and UN demonstrate, waging aggressive unjustified war is a per se war crime. It is against US law for US forces to commit war crimes. Does it happen? Sure, but not all tht often. The small ones usually get prosecuted and the large ones not so much. But for an egregious-enough scenario, the appropriate US commanders should be pushing back, and hard, that they’re being asked to commit illegal war crimes against humanity by invading, e.g. Canada or the Bahamas.
Once you posit that your off-the-rails politicians can keep firing people until they find people willing to do [whatever], it’s game over. The DoD will either run out of senior officers, junior officers, then sergeants before your unstoppable rogue POTUS & his henchmen find enough willing participants, or else the DoD will collapse into internally warring factions.
It really seems to me like you’re wanting there to be an answer looked up in a book and complied with by all parties. The NFL might be that way, but Calvinball isn’t. And the game your positing is a lot closer to Calvinball, where one side is inventing rules, moving boundaries, and cheating like mad continuously. Asking specific “what-if” questions in that maelstrom of chaos seems nearly pointless.
Will DoD rise to the occasion and tell POTUS to go F*** himself, stand dumbly inert trapped in an indecision loop, collapse in a warring brawl with itself, or go forth like Hitler’s Wehrmacht in search of martial glory & treasure wherever and whenever told? Damned good question. 'It depends" and “we shall see” are all I can offer.
Too true. There’s only one way to find out. Or as National Lampoon quoted senator Ted Kennedy “We’ll drive off that bridge when we come to it.”
Why do you think that? They all have to swear an oath that would preclude that. Only one president we know of has ever attempted to place people in position on that basis.
It seems as if we’re coming closer to my absurd scenarios becoming reality, though, doesn’t it? My speculations about a completely servile and obedient Cabinet were a ridiculous exaggeration a few years ago. Now it’s useful to find out what happens if that is the case.
Maybe it would provide more clarity if, instead of categorically describing actions you find distasteful as “illegal”, you ask yourself (or anyone) exactly which laws would be broken by such acts.
Let’s say POTUS gets angry that Greenland won’t sell itself to him, and he decides to invade. The entire chain of command are rubber-stamp lackeys who accede to his every command. Within 48 hours he can probably mobilize enough airborne forces to take effective control of most of the country, and he does so. There’s a very small number of military casualties on both sides.
Which US laws do you think would be broken in this scenario, and by whom?
I don’t know. Are you suggesting that such an invasion is entirely legal? You might be right. IANAL.
Yes, and he happens to be running for the office again on a platform of “No More Mister Nice Guy” so your 1-in-46 odds against this are, at the moment, shorter than you seem to think.
I’m not suggesting anything except that I know of no US laws that this would break.
You seem very conflicted about whether military actions you find distasteful are actually illegal. I’m trying to help clarify by asking you which laws you think they would (or could) potentially break. Without that context, it’s impossible to have a meaningful discussion about legality.
If you can’t think of which laws would be broken here, then this conversation isn’t really about what is illegal, but what you think ought to be illegal. That’s a reasonable conversation but it’s a separate conversation.
I think this qualifies as an assertion that you do think such an invasion would be legal, which I am willing to accept.
Agree completely. But …
There is no way to find out what will happen. Which sounds like what you keep hoping to accomplish. Which is IMO a fool’s errand.
IMO at best we can place loose bounds around what might happen. Which bounds are so loose IMO as to broadly run from mass mutiny or a military coup to slavish obedience in destroying the world.
My bottom line:
I agree completely this is one experiment I don’t ever want to see the US run. And I agree completely that the next administration, if ill-chosen by the public, may well put us through that very experiment or one close to it. And other such experiments not only in the military realm.
All I can say with any certainty is the US government and US citizenry would be sailing into very much uncharted waters in the midst of a raging storm. Anything, and I do mean anything, has at least a decent probability of happening, and nearly nothing can be absolutely ruled out a priori.
Good luck. We’re going to need it.
How about “What could happen” and “What could not happen”? That’s a little closer to what I’m trying to find out here.