Doesn’t the oath of enlistment, “defend the Constitution of the United States against all enemies, foreign and domestic” - clash a bit, logically, with the Posse Comitatus Act?
Foreign enemies - yes, that’s what a military is for - but domestic enemies? How Constitutional is it for a military to be used against domestic enemies? National Guard is one thing, but Air Force F-35s can’t be used for law enforcement, right?
Posse Comitatus is a law passed by Congress. It isn’t part of the Constitution.
So, if the President orders you to use your F-35 to bomb a rebel house in U.S. borders, you probably have to do it. Servicemembers are told that while they can refuse to obey an unlawful order, if it turns out later that the order was legal, they face the consequences.
In the example I gave, the President’s powers as Commander mean that if, in his judgement, that house needs a JDAM to redecorate it, refusing is insubordination. I am pretty sure Posse Comitatus has more to do with funding, in that there is not any funding to be spent using military forces inside the continental U.S.
Right.
Not…as right.
Really really wrong. Service members are not told that they can refuse an unlawful order, they are told that they must. You are right that if it turns out the order is legal, they will face consequences after the fact. They will also face consequences if they knowingly take part in a crime.
Whether it’s insubordination or not would really be up to a court martial.
Specifically, the Posse Comitatus Act prevents the use of federal troops to enforce domestic laws, unless authorized by Congress. (See: Insurrection Act of 1807, as amended.) It does not apply to the Coast Guard (which has a dual military/law enforcement function.) And it does not apply to National Guard or state militia forces who have not been federalized.
Your response is hard to meaningfully quote, BTW. But regarding the idea of “Domestic enemies”… we’ve had to do this at least once. The states in rebellion were never accorded (by the US Government) the status of independent nations, so the armed forces of the United States were technically turned against rebellious US citizens: domestic enemies.
Note that engaging in combat against an active insurrection or rebellion would not count as a Posse Comitatus violation, simply because the combatants aren’t trying to arrest each other. A civil war is not a law-enforcement matter.
As to the moral duty to refuse unlawful orders, I agree (mostly) with your assessment, but I think a service member refusing illegal orders can expect to be vindicated only well after the fact. I don’t think a court-martial “unlawful orders” defense would succeed. After all, the members of the court judging the lawfulness of the orders disobeyed may have been involved in the formulation or issuance of those orders. (“Unlawful command influence” is a huge problem.)
My impression of the history of that is that it’s not very successful in the environment of any kind of conflict that may necessitate it. Only the judgement of history will agree with a defendant, well after the conviction and completed sentence. (IMHO.)
That’s really the reason in a nutshell, and why using Federal military resources for border guarding type activities is kind of a weird gray area.
It might be germane to note the USCG is NOT under the Department of Defense or the War Department before that. Currently, the USCG is under Homeland Security, before that it was Dept of Transportation, and before that, Treasury.
Right, but the Posse Comitatus Act was passed after the Civil War, in 1878. It wasn’t an issue before that, although there was a smattering of other legislation and convention about using federal troops domestically. The lengthy series of Indian Wars in the west is an example.
Have you actually been in the military? I was. If you decide to disobey an order because it’s illegal, you need a damn good reason. It needs to be blatantly illegal, not just a little illegal or procedurally illegal.
Also, if you *don’t *disobey an illegal order, you’re only going to get in trouble if your crime was so illegal the UN would agree with you. Attacking some rebels inside the continental USA? Not nearly illegal enough. Robbing a bank for the benefit of command? Possibly illegal enough, but honestly, you’re probably still in the clear if you participate. “I was just obeying orders” *is *a defense unless it’s so illegal as to be a crime against humanity itself.
Participating in mass murder of civilians? Ok, now you might want to consider not obeying.
You think a domestic JDAM makeover is just a little illegal?
No. If the offense is serious, you will be charged with a crime under the UCMJ.
You have no idea what you’re talking about.
Hypothetical : you are a pilot for the U.S. Air force. You are ordered on a bombing mission to destroy the Branch Davidian compound. There’s a lot of reasons to be sympathetic to those guys, they may have been a cult but their only real crime was having a few too many guns. Nevertheless, you’ve heard in the paper that they are not submitting to lawful authority and have shot several Federal agents.
Pretty sure that’s enough to go on the mission. Just make damn sure it’s coming from your superiors.
though it can be transfered to the Navy as was WWI and WWII.
No, it’s you that has not the slightest clue. Strictly speaking, yes, you don’t have to obey an unlawful order. However, there are so many laws and treaties involves that a service member has no practical way of determining if an order is unlawful or not unless it is blatantly illegal. Hence, it’s a defense at the court martial hearing because they can’t establish mens rea unless they can show you had to know what you was doing was wrong.
Escorting civilians to the gas chamber? Yeah, that’s bad. Dropping a JADAM on someone you are told is a threat? Easily justified. You aren’t supposed to know the ins and outs of a complex law like Posse Comitatus.