A surprising number and variety of Americans want the military to save us from the politicians they elected to high office. Specifically, they want the military to refuse to obey orders deemed illegal. Six Democrats with national security backgrounds appeared in a video posted in November urging the military to refuse to obey illegal orders. Even Pete Hegseth caviled that the military must refuse to obey orders—but of course, that was before he became secretary of defense to issue them. He now considers it “provocative behavior” to make the same statement.
Make no mistake, illegal orders are where the Trump administration thrives. The president’s stance has been clear since at least 2020, when he urged then-Defense Secretary Mark Esper and Chairman of the Joint Chiefs of Staff Gen. Mark Milley shoot the protestors. In his first term, President Donald Trump too to be forgiven soldiers tried by courts-martial or dismissed—and Hegseth has done just that appointed some of the top positions in the current Department of Defense. Hegseth’s move to fire the chief judge advocates of several branches of the military was aimed at setting the stage for more command. interpretation to allow of the laws of war, as evidenced by Hegseth’s definition of “stupid laws of engagement,” and giving the enemy “there is no quarter.“
A surprising number and variety of Americans want the military to save us from the politicians they elected to high office. Specifically, they want the military to refuse to obey orders deemed illegal. Six Democrats with national security backgrounds appeared in a video posted in November urging the military to refuse to obey illegal orders. Even Pete Hegseth caviled that the military must refuse to obey orders—but of course, that was before he became secretary of defense to issue them. He now considers it “provocative behavior” to make the same statement.
Make no mistake, illegal orders are where the Trump administration thrives. The president’s stance has been clear since at least 2020, when he urged then-Defense Secretary Mark Esper and Chairman of the Joint Chiefs of Staff Gen. Mark Milley shoot the protestors. In his first term, President Donald Trump too to be forgiven soldiers tried by courts-martial or dismissed—and Hegseth has done just that appointed some of the top positions in the current Department of Defense. Hegseth’s move to fire the chief judge advocates of several branches of the military was aimed at setting the stage for more command. interpretation to allow of the laws of war, as evidenced by Hegseth’s definition of “stupid laws of engagement,” and giving the enemy “there is no quarter.“
Yet even as the issue approaches, there are practical problems with expecting the military to refuse. And while Americans can and should expect that their military will not obey orders that are “illegal” — such as shooting protesters or killing prisoners in custody — validity of the order it is not as clear cut as proponents of military denial would like to believe. Many of the challenges posed as legal obstacles are policy conflicts.
The oath taken and enlisted soldiers, sailors, airmen, Marines, and guardians instruct them to “obey the orders of the President of the United States and the orders of the officers assigned to me, in accordance with the Uniform Rules and Regulations of Military Justice.”
Eighty percent of Americans in the military understand that to mean that they have a duty to refuse to obey illegal orders. But they are not legal scholars trained in the nuances of the law of armed conflict. Officers are held to a higher standard than enlisted and non-commissioned personnel, but even most military officers could not discern where the legal boundaries are strategic and most operational orders. Our system is based on the assumption that orders are legal, since the military would not act quickly if each service member had to resolve the issue before taking action. And things happen quickly in an operational environment.
It is true that each commander has a judge advocate general (JAG) who can advise decisions, but the legal counsel does not remove the commander’s authority or responsibility for operational decisions. Also, the JAG section is frustrated by the defense counsel’s secretary, who is frustrated by the Department of Justice’s Office of Counsel. And lawyers rarely give a simple yes or no answer; often, their response is something along the lines of “here are some things to consider when making this decision.”
As constitutional law scholar Joshua Braver he said“Willful disobedience to lawful orders from a superior officer is a crime under military law, punishable by dishonorable discharge, forfeiture of all pay and allowances, and imprisonment for up to five years; in time of war, the penalty may be death.” The burden of proof is not on the government to show that the order was valid; it is up to the service member who refused the order. The Court-martial Manual it explains in a nutshell: disobeying an order is “the danger of his subordinate.” Given the reality of wartime and the nature of the combat mission, the army could not function effectively without this order.
Moreover, saving the republic is an unfair burden to place on the shoulders of the military. While the military may be the country’s last line of defense against an anti-American president, much of the current debate would be the first. And that is a great injustice for them. The American political system is designed for civilian-to-civilian conflict, but in recent policy debates, discussions have quickly turned to whether an operations commander should refuse to carry out orders. If we get to the point where the military commander’s decision to obey or disobey orders is the solution, then the system has failed.
The right place to place the responsibility for the legitimacy of orders is on the people who issue them: the president of the United States and the secretary of defense.
The right people to judge the legitimacy of the orders given to our military is the Congress first and foremost. Federal Paper no. 51 lays down an important principle: “Desire must be made to meet desire.” What is disrupting American politics is the failure of Congress to protect and use its constitutional authority to check the expansion of executive powers that Trump approves.
The military cannot save the Americans from that failure. Nor do Americans want that, because the country will cease to be a republic if the military becomes the arbiter of political disputes between the two constitutionally mandated sources of civilian control of the military.
Civil society also has important roles: Journalists provide information and investigate governance claims; businesses to explain the results of their activities and brands and workforce; citizens should testify. An important part of accountability is refusing to be complicit. So, for example, only Congress has the authority to change the name of the Department of Defense and the title of its secretary. The United States has no War Department and no Secretary of War. Every time any American uses those titles, it makes it easier for the president to issue illegal orders.
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What a secretary of defense fails to understand is that the laws of war a huge benefit to the US military. By obeying them, the military creates a basis for holding the enemy to their limits, and that is especially important when the military is involved in combat as often as the US forces. The U.S. military also benefits from reputation and operations—other countries are willing to allow U.S. forces to be stationed and trained in their territory because they are disciplined and law-abiding soldiers, not rioters. Washington gains allies because other countries want their military to be like the United States.
Former Navy Capt. Haley Fuller has he said that rules of engagement consistent with the laws of war also reduce the possibility of costly mistakes: “A strike that is legal but poorly executed can still strategic disaster if it would cause civilian harm that would break allied support or lead to escalation.”
Domestically, the laws of war are also important in a country’s ability to integrate its veterans back into society, knowing that they have behaved honorably and need not be feared by their fellow citizens. Like Major General and later President James Garfield he caught the thought“It should not be said that good people are afraid to approach the American army.” Trump and Hegseth doubt that.
Preventing US political leaders from destroying the military and its relationship with the wider civil society is an urgent task. Democracy is not a spectator sport, and America will not remain a republic if Americans expect their military to save them from the politicians they elect. Rather it is their civic duty protect the army due to the harm that their politicians would do to them.
This post is part of FP’s ongoing coverage. Read more here.
