Unlawful Military Orders

 

Six U.S. senators and representatives, all veterans of the Army, Navy, Air Force, or CIA, recently released a video with each veteran taking a turn to remind serving military members of their duty to disobey unlawful orders. The video was intended to draw attention to the “No Troops in our Streets Act” introduced by Michigan Senator Slotkin and to a War Powers Continuing Resolution introduced by Colorado Representative Crowe intended to limit Mr. Trump’s ability either to deploy troops at home or to do so abroad without congressional approval.

Trump’s reaction was to call the congresspersons “traitors” and suggest they be “hanged.” He had avoided military service and clearly has no idea what the oaths taken by officers and enlisted troops mean. Enlisted members swear to “obey the orders of the president of the United States and the orders of the officers appointed over [them]” according to regulations and the Uniform Code of Military Justice (UCMJ). Article 90 of the UCMJ states that service members are obligated to obey only lawful orders, so even the lowest ranks are expected to use good moral judgment. Officers swear to support and defend the Constitution and to “well and faithfully discharge the duties of [their] office.” There is no mention of the president or higher officers, which helps prevent any one person or service gaining too much power.

Defense Secretary Hegseth has threatened to recall to duty Arizona Senator Mark Kelly (pictured), a retired Navy Captain and Astronaut and one of the six in the video, and possibly court-martial him for interfering “with the loyalty, morale, or good order and discipline of the armed forces.” (Retired officers are subject to recall as needed.)

What Kelly and the other five congresspersons said in the video was strictly factual and based on the rules and regulations that govern our services. Trump may not understand military oaths and the UCMJ, but Hegseth was an Army National Guard officer for several years and certainly should. Perhaps Hegseth should not let himself be bullied into making unjustified threats and should advise his president that what the congresspersons said was correct.  

Before becoming an Air Force officer decades ago, I recall an ROTC class devoted to the issue of lawful and unlawful orders and citing the 1945-46 Nuremberg War Crimes Trials where some Nazi military and civilian officials had tried to justify their parts in the Holocaust and/or other atrocities by claiming they were just following orders. The court denied that defense. In international law, states had previously been responsible for war crimes, but Nuremberg shifted the responsibility to individuals.

In 1968, during the Vietnam War, U.S. Army helicopter pilot Warrant Officer Hugh Thompson and his crew observed U.S. Army soldiers in My Lai and nearby villages murdering hundreds of noncombatants, including women and children, during what became known as the My Lai Massacre. Thompson landed and confronted the Lieutenant in command who said it was none of Thompson’s business and ordered him to leave. Thomson threatened to shoot any soldier who shot a noncombatant, escorted a dozen or so villagers to safety, and immediately reported the massacre to his commander by radio. 

Eventually, 26 soldiers and officers were court-martialed; some were cleared but others punished. The Lieutenant who unlawfully ordered the murders was sentenced to 20 years which was later commuted after three-and-a-half years. 

Thomson was not punished for disobeying orders. Instead, he and his crew were awarded the Soldier’s Medal, the highest Army award for heroism while not in contact with the enemy. 

Service members are regularly retrained about the provisions of their oath, the UCMJ, and the Geneva Conventions, which further justify disobedience to unlawful orders. A clear, concise explanation of lawful and unlawful orders is online at quantico.marines.mil.