Military not following illegal orders-How reliable is that?

Great Debates
21

The statutes give (arguably overly) broad discussion to executive judgment and authority (“Whenever the President considers…”, “The President…shall take such measures as he considers necessary…”), which makes it difficult to argue that these aren’t legitimate (if practically unjustified) orders. And these aren’t new statutes; this is an erosion of civil liberties and restrictions on government that has been going on for decades even while conservatives screech about ‘states rights’ and excessive regulation.

Part of the problem is that the Constitution, or the Supreme Court, or the resistance of individual state governors should be responsible to rein in executive overreach and debasement of democracy and conscionable ‘rule of law’, but in fact that power lies primarily and ultimately with the US Congress which could, were it so inclined, resolve to impeach, try, convict, and remove a sitting President or pass individual laws restricting Presidential authority or rescinding previously delegated powers. But a plurality the American electorate not only re-elected Donald Trump after he openly and cravenly incited an insurrection and made clear display of his venality and corruption, but they also stacked the Congress with supplicants and submissives who are all too eager to hand power over to Trump to do the things that they don’t want to take responsibility for themselves. They did this because they’ve been conditioned to be apathetic about democracy and enthusiastic about ‘strong’ despots and even nascent fascism. That is the actual problem.

Stranger

22

Wow. That’s just conspiracy theory at its worst.

23

I’ll grant that you may be right with respect to the California NG being deployed. How can the Marines be justified?

HW Bush invoked the Insurrection Act during the LA riots in '92, Trump has not yet done so.

24

I know it’s me, and full disclosure to people I am a 9/11 truther, but how is it a “conspiracy theory at its worst” when the regime is saying that’s what the goal is?

My thing is that this has been a long time in the making, over 30 years. Trump himself is not in charge now, look at his pressers.

It’s clear the Project 2025 play book is being run. They spelled out exactly what they wanted to do and how they would do it.

We are seeing it now.

25

“DoD military personnel on this mission are protecting property and personnel,” Air Force Capt. Mayrem Morales, a NORTHCOM spokesperson, told Task & Purpose. “They are providing support to prevent the destruction or defacement of federal government property, including crowd control and establishment of security perimeters. These personnel are also protecting federal officials from harm or threat of bodily injury while those officials execute their duties.”

I think that is a pretty sketchy premise to deploy Marine forces which aren’t even trained or constituted for police or ‘peacekeeping’ actions but because the troops aren’t performing a law enforcement role it doesn’t specifically violate the Posse Comitatus Act, and the article goes on to give an anecdote for the problems that can create:

About 1,500 Marines from Camp Pendleton, California, were deployed to Los Angeles in 1992, and they were issued riot gear and given refresher training prior to their mission, retired Army Maj. Gen. James Delk, who oversaw the California National Guard’s response to the riots, wrote in a 1995 Army case study of the riots.

However, communications proved to be a challenge at times because Marines, soldiers, and police all use different terminologies, Delk wrote. In one incident, a squad of Marines accompanied police to a home in response to a domestic dispute. One of the police officers was hit when someone inside opened fire.

“His partner grabbed him and as he pulled him back he hollered to the Marines ‘Cover me!’” Delk wrote. “Now to a cop, that was very simple command. That means aim your rifle and use it if necessary. To a Marine, and there were some well-trained young patriots in that squad, it meant something entirely different. They instantly opened up. A mom, a dad, and three children occupied that house.”

To be clear, I don’t think the deployment of either of these forces is justified by the protests, and the real reason for doing so is to inflame tensions rather than suppress any kind of threatening activity but again the President has broad discretion granted by Congressional writ and Constitutional authority provided the forces aren’t actually being used in an enforcement role against American citizens without being supported by a domestic law enforcement agency. I think a lot of people would be surprised to the extent the military is actually involved in a wide array of domestic operations ‘in partnership’ with law enforcement, particularly with drug interdiction and counterterrorism, and increasingly in cybersecurity, so while this is an exceptional and suspect deployment of military forces it is actually part of a continuum of increasing military involvement in domestic affairs.

Stranger

26

The actual lawyers say that deployment of both the National Guard and the Marines under these circumstances are unlawful.

27

“The actual lawyers”.
All of them, or just the ones with that viewpoint?

28

If someone were to refuse an order on the grounds it was illegal, and assuming he was in the minority, here’s what would happen. Higher ranks would deliberately look the other way, and his fellow soldiers would MAKE him perform the order.

This is exactly what happened to me in the army during a training session. We were in a sealed room filled with tear gas, and we each had a gas mask on. To show us what it would be without the masks, we were all told to remove them. A few trainees, seeing others choking, refused or were slow to comply. The sergeant (who kept his mask on) said, “I’m going to look away, and when I turn around again, I was to see EVERYONE’s mask off. You will not get into the open air until that happens.”

You can betcha that the masks that were not off already were forcibly ripped off, and the sergeant saw nothing.

29

Most appropriate typo award.

30

And yet they march right out there and do it anyway. Answers the OP’s question.

31

A good YouTube video from LegalEagle was recently released discussing the OP’s question. (22 minutes)

32

Can you give us a bit more detail besides the punch line “NO”?

33

Obedience to orders is paramount in the US military. Soldiers are expected to follow any order properly given to them. Period.

To refuse does not mean whatever the soldier does not like or is even uncomfortable to them. They cannot armchair lawyer and decide what is or is not legal or constitutional

They can only refuse an order when it is “manifestly” illegal and usually has to rise to something like a crime against humanity (e.g. like in the My Lai massacre where women and children who were clearly not a threat were shot and killed). Even then they may well sit in jail for months till they get to a military court to decide the issue.

34

Thanks.

35

To me, the most interesting part of the video starts at 15:58 - unlawful command influence, which could be the “get off lighter than one might otherwise” card. It’s worth a listen, but the short version is that everyone involved in a court martial is part of the chain of command that ultimately stops with the commander in chief and has practical and legal reasons not to want to upset the wishes of those above them in the chain of command. How does that relate to TFG? In 2013 Obama at a press conference condemning the rise of sexual assaults in the military made what, to use the words in video, seemed a banal comment:

“The bottom line is: I have no tolerance for this. … I expect consequences. … So I don’t just want more speeches or awareness programs or training, but ultimately folks look the other way. If we find out somebody’s engaging in this, they’ve got to be held accountable – prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.”

The problem? A Navy Judge found that the commander in chief directing a specific outcome was unlawful command influence:

Obama exerted ‘unlawful command influence’ in speaking on military sexual assault, judge says - POLITICO

As a result, the Judge ruled that:

In pretrial hearings in two cases, a Navy judge in Hawaii ruled this week that Obama had exerted “unlawful command influence” as commander-in-chief in outlining the specific “consequences” he saw fit for members of the military convicted of sexual assault.

As a result of Navy Judge Cmdr. Marcus Fulton’s rulings, the defendants in United States v. Johnson and United States v. Fuentes can’t be punitively discharged, even if they’re convicted of sexual assault.

Obama’s simple off the cuff remark that anyone found guilty should be “stripped of their positions… and dishonorably discharged. Period.” was enough to trigger unlawful command influence and result in the judge ruling that a dishonorable discharge could not be part of their punishment even if they were found guilty of sexual assault. How does this relate to TFG? Given his utter lack of self-control, what are the odds he doesn’t say something at a rally, or to the press, or in a late-night social media posting in ALLCAPS that isn’t a far more severe case of unlawful command influence? Which, being a lawyer, the video is quick to point out is not either an assured outcome or will prevent an unfavorable outcome for anyone refusing an order.

36

That is true, but the enlisted guy at the business end of an unlawful order has two choices, equally untenable: obey and be held responsible for obeying an illegal order, as the rejection of the Nuremberg defense makes clear, or defy the order, be arrested and face a court martial where more than 90% of all convened result in a guilty verdict, and face life imprisonment or possible execution.

In the end, the soldier will likely pull the trigger and take his chances that the leadership will cover him. Why shouldn’t he? If he’s likely to be severely punished in either case, it’s the easiest choice. Very few indeed have the strength to take the second option.

And that’s the problem. There is no way out for them and they have been discouraged from the start to think about the legality of what they are doing. They are told that they should not obey an unlawful order but that is merely a CYA directive from leadership so they can pass the blame downward. No officer will countenance disobedience without consequences by the soldiers under his command.

37

Thanks for expanding on my post. We were told in boot camp about refusing to follow an unlawful order, which was immediately followed by “. . .but you better be sure you’re right.”

I refused one order in my 23 years, but did it diplomatically. My CO told me that the EPA was sending inspectors to the base to look for hazardous waste. We had rusted drums of an unidentified substance in one of our enclosures, and he wanted me to have some of my men move them inside where they couldn’t be seen from the street. I told him that I wasn’t comfortable giving that order and he, knowing full well that it would be illegal for us to hide HAZMAT, let it go.

38

In the video I posted above they comment on this and note that, “I was following orders” is absolutely a defense in court. The person who gave the orders should be prosecuted, not the soldier who obeyed the order. This is only not the case when the order is “manifestly” illegal. In Nuremberg those were the ones who were deemed to have committed a crime against humanity. Something that so shocks the conscience no one would ever think to follow such an order. An order so bad that you need to be willing to be executed instead of following that order (I made that part up but it seems it needs to rise to that level or close).

39

I was considering orders that are less than a “crime against humanity” that could be refused and I think something like commanding a woman to expose her breasts to the person giving the order should and could be refused and rightfully so.

40

US soldiers demand protection from following ‘Trump’s far-right authoritarian government’ - Alternet.org
Here is a decent article about soldiers worrying about having to follow possibly illegal orders.