People who know me know I don’t lose my temper often. Okay, with the exception of watching my favorite Notre Dame football team lose (not often), or when driving (more often). Even those cases are momentary, as I try to keep a pretty even keel, probably because my Irish-German heritage makes me prone to behavioral extremes. Something I just saw had me simmering, because when anything masquerades as morality, morality suffers. At first glance, you may think I’m overreacting. Please consider my full case. For starters, here’s the offending video (this copy of the video repeats, so you only need to watch the first two minutes):
Firstly, I have just as much credibility to discuss this matter as anyone you saw speaking: West Pointer, Army officer, career federal civil servant in the departments and agencies cited, with over thirty-eight years under this oath:
“I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”
That oath is basically the same for all civilian federal employees and military officers. Enlisted personnel have a slightly different version, which includes the following: “to obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.” Notice the differences, as they are important. No mention of orders for the civilians and officers, and a requirement to obey among the enlisted.
Service members (civilian, officer, and enlisted) receive a great deal of training in what the oath means. Part of that training always covers the concept of an illegal order: that under this oath, we not only didn’t have to obey such an order, but that we were morally and legally required to disobey such an order. I joined the Army less than ten years after the infamous My Lai massacre, so that was often the focus of the Army’s training. To wit, just because your commanding officer says everybody in the village is an enemy combatant, you can’t justify shooting unarmed women and children. It was a recent, searing example which drove the point home. The overwhelming majority of the oath takers would never face such a dilemma in their careers.
The emphasis in the training was that for officers and civilians, there was a system you could engage if you found an order to be questionable. The enlisted were taught the same, but the emphasis in the oath is clear: obeying is the norm, engaging with the system is the exception. For those public servants, the training went on to explain what to do: when you see something you consider potentially an illegal order, you should state such to the officer/leader giving the order, that they may clarify or reconsider. You can ask that it be referred up the chain of command. You can go to appointed persons like the Judge Advocate General, Inspector General (IG) or an Ombudsman, who can investigate it for you. You can even in some circumstances contact your Representative or Senator under special “whistleblower” provisions.
Here’s the catch: whatever path you choose, it does not include deciding for yourself. Once you choose among these different options, you are required to accept the legal or moral judgment rendered by the official in question. That’s the system in law, as in the Constitution. What is not in the Constitution is the right of an individual to abrogate to him or herself the right to decide what is Consitutional/legal or not. Why is that? The oath-takers are taught that they may not have the same advantage of information the person making the decision does. They might not be expert in law, or the overall situation. What may seem counterproductive or unreasonable at one level may be entirely justified at another level. That is why there is a system for you as the person “pulling the trigger” so-to-speak to reach out to others to confirm or deny your suspicions.
As a practical example, Eddie Snowden decided the electronic spying the National Security Agency (NSA) was doing was morally wrong and probably illegal. He made this decision on his own, from his lofty perch as an analyst and later contractor. He didn’t do the right thing; he sent an email to the NSA General Counsel asking a vague question about whether an Executive Order can override federal statute (it can’t), and from this he made the definitive legal judgment to leak massive volumes of classified data to the Russians, Chinese, and who knows who else. He continues to defend himself from a protected spot in Moscow, calling himself an advocate for truth, transparency, and individual rights. Rather, he is the avatar of ego, mal-education, and moral turpitude. This is what happens when people mistake using the system with being the ultimate decider.
Now the video I asked you to watch reiterates much of the training I experienced, so you might be wondering why my blood pressure spiked. It did so because it adds some things and omits others. It adds specifically that “this administration” is the threat to the Constitution. Not that a certain policy is wrong or illegal, but the administration itself is a threat, “pitting” soldiers and civilian professionals “against American citizens.” That is a sweeping statement well beyond the confines of the subject of lawful orders. How is the average oath-taker supposed to process such a generalization, other than to suspect everything they are told?
Second, it omits the most important part: what the oath-taker is supposed to do. Yes, if you’re the trigger-puller on the Special Forces Black Hawk helicopter in the Carrib, you do face a real, instantaneous decision on whether to blow the boat out of the water. But there was a time before that, during the pre-operational briefing, to ask the right questions. There is a system to do so. Telling that soldier, or any government employee, that they have the right–nay, the obligation–to ignore an order without explaining what that means within the system they operate? That is unconscionable. Suggesting the hundreds of thousands of oath-takers in the government who don’t face such a stark, immediate decision do the same? Immoral.
I have seen some of the people featured in this video explaining that they have “constituents” in the military expressing concerns, for example, about the drug-boat strikes near Venezuela. This explanation makes the situation worse. If it is true, they should be referring the constituents to the system designed to answer their concerns, not making generalized videos about “the administration.” Whether it’s the drug boats or domestic military deployments, these issues are either currently in the courts (domestic deployments) or an issue of international law, and not something a soldier or civilian is placed to decide for themselves. Worse still, the self-identified patriots in the video have ample means to seek redress if they think the administration is in error. They are in Congress. They can be specific about issues and use their (constitutional) authority. Instead they spout generalities and spark others to act; that’s cowardly.
For my friends who never had the honor of taking the oath, here is an analogy that might resonate. Imagine you wake up tomorrow and there’s this video, from a former Surgeon General of the United States, the head of the Mayo Clinic, and other prominent medical officials. They say “the administration” is the problem and you shouldn’t follow the medical advice of the government elements like the CDC, the Public Health Service, or the National Institutes of Health. They don’t take issue with any specific thing, like vaccine recommendations or puberty blockers or hormone treatments for women in menopause. No, they simply remind you that it’s your health, your right, and you can stand up to the government. But remember, the government’s medical advice is suspect. Does that sound like a good idea, or a recipe for disaster?
The leaders in the real video say that they “have your back.” There are two kinds of people who stand behind you. Those that have your back, and those who will stab you in the back.
Choose wisely.
Well stated as usual.
I really find your approach and explanation of things to be clear and concise…something the video 6 didn’t utilize!! Having taken the oath and having the privilege to work with professionals in the military services I find the whole thing insulting for our military and I resent the video 6 using the military as spectacles in their political games!!
Thanks Pat. The “pitting” terminology, “don’t give up the ship,” and other implications are certainly provocative, political rhetoric. I was disappointed but not angered by the video. I’d advise President Trump to ignore this video and encourage junior officers and NCOs to review their obligations with their subordinates. Our troops know not to obey illegal orders.
Another well-reasoned, common-sense piece of writing!
Dreadful. Your comments make no sense. The video says do not obey illegal orders. Shooting surviving members of an alleged drug runners clinging to the wreckage of a boat is explicitly regarded as illegal. What exactly is your issue issue here? Trump has also explicitly indicated he wants the military to act upon American citizens. All the video is saying is obey the constitution. I took an oath too, to the Constitution. Not the president. You seem to forget that.
Exactly. Pat is incorrect here. He points out that the oath includes “to obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice”.
And what does UCMJ “18.3.2.1 Clearly Illegal Orders to Commit Law of War Violations” say?
“The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.”
The footnote (27) given is even more illustrative:
Judgement in Case of Lieutenants Dithmar and Boldt, Hospital Ship “Llandovery Castle” (Second Criminal Senate of the Imperial Court of Justice, Germany, Jul. 16, 1921), reprinted in 16 AJIL, 708, 721-22 (1922) (“It is certainly to be urged in favor of the military subordinates, that they are under no obligation to question the order of their superior officer, and they can count upon its legality. But no such confidence can be held to exist, if such an order is universally known to everybody, including also the accused, to be without any doubt whatever against the law. This happens only in rare and exceptional cases. But this case was precisely one of them, for in the present instance, it was perfectly clear to the accused that killing defenceless people in the life-boats could be nothing else but a breach of the law. As naval officers by profession they were well aware, as the naval expert Saalwiachter has strikingly stated, that one is not legally authorized to kill defenceless people. They well knew that this was the case here. They quickly found out the facts by questioning the occupants in the boats when these were stopped. They could only have gathered, from the order given by Patzig, that he wished to make use of his subordinates to carry out a breach of the law. They should, therefore, have refused to obey.”)
What exactly did I say that was incorrect? I reiterated the various oaths and explained them. In your own supporting text, it notes that the ability to refuse requires that the order in question be “universally known to everybody . . .to be without any doubt against the law” and “this happens in only rare and exceptional cases.” The video makes no such distinctions.
And why do you & Joel tie this to the boat-strike? If that is what they were talking about, mentioning US citizens is odd, no?
Finally, perhaps it was just a coincidence, but using the text from “Dithmar and Holdt” relies on many facts not established in the current boat-stirke case. I caution against assuming any of what has been alleged (by either side) at this point as accurate.
“The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal.”
You wrote:
“Here’s the catch: whatever path you choose, it does not include deciding for yourself.”
A quote I read recently:
“The defense –“I was ordered to do it [the illegal act]” — has been rejected time and again in military tribunals and international courts.”
I felt like your OP is a big pretzel of words trying to twist into mental edibility that it’s never okay to disobey an order, when that’s counter to the Department of Defense Law of War Manual.
Ahh, great, I see where you’re coming from now; thanks for explaining!
As in my “trigger-puller” comments, there are those who indeed have to make a split-second decision to obey or not. They are few, and moments are far between. But they don’t just make a decision, or else they are in danger themselves. They are taught to engage the system (as I suggested), not to just make a call based on their own conscience. That’s what Snowden did, and he was wrong on the facts, wrong on the law, wrong on the morality. One should ask legitimate questions during the mission brief, engage the commander issuing the orders, walk over to the JAG on the staff and ask them to confirm. If you still think you’re right and everybody else is wrong, yes, you may decide not to pull the trigger, but if you didn’t engage the system, you’re probably wrong. That video lacks any mention of this.
As to the “just-following-orders” defense, you’re correct, it rarely succeeds. But the cases require (as you cited) something so obvious that any reasonable person would know it is wrong. So let’s take the case others are mentioning: the boat-strikes. Shooting at helpless individuals in the water is clearly a violation; shooting at the boat they cling to is not. You may continue to strike a vessel until it sinks or signals surrender. Shooting at individuals climbing back into he boat? Are they trying to escape death in the water, or trying to make the boat operational again. This is hazy. Suggesting it is so clear as any reasonable person would know it to be wrong is grossly exaggerated. We’ll know more about this case as more real facts (as opposed to the “sources” and administration “statements”) become available.
I’m going to do a follow-up post on the laws of armed conflict, and I hope you read and comment on it!
Another thing I should have added before: I don’t deny the coincidence in timing that appears to exist between when the video came out and when the second strike news broke. Both sides love to muddy the waters with coincidences and whataboutisms in order to try to take command of whatever narrative suits them or their donors’ best interests.
But, question: what made your blood boil more, that the coincidental timing of the video is there (did “the seditious six”—good grief!—know more and chose not to specifically highlight the illegality of the alleged war crime); that they didn’t offer a “but only if the order is blatantly illegal, otherwise you can and must rely on the fact that you don’t know everything your superiors know” caveat; or just that there may have been a less on-the-nose way to imply the current administration is less concerned with issuing potentially illegal orders? Perhaps folks should never be allowed to express their beliefs that people in power have been known to push the envelope of what is legally/morally acceptable? Speech and debate clause be damned?
“Shooting at helpless individuals in the water is clearly a violation; shooting at the boat they cling to is not. You may continue to strike a vessel until it sinks or signals surrender. Shooting at individuals climbing back into he boat? Are they trying to escape death in the water, or trying to make the boat operational again. This is hazy. Suggesting it is so clear as any reasonable person would know it to be wrong is grossly exaggerated.”
The UCMJ says don’t fire on the shipwrecked. This implies that operators should know when a ship is wrecked. “Until it sinks or signals surrender”?? So if two survivors out of eleven “combatants” are clinging to a boat/wreckage of a boat that’s clearly no longer a threat, we should wait until they’re in some other condition to determine if they’re trying to signal surrender or escape? In either case, firing anywhere near them is essentially giving them no quarter, also illegal (and as I noted, bad for how other countries view our commitment to rules of engagement).
And what does any of this mean in this context, per Reuters: “President Donald Trump, who has cast himself as a relentless foe of illegal drugs, pardoned former Honduran President Juan Orlando Hernandez, freeing him from a 45-year sentence for conspiring to import tons of cocaine into the United States.
Trump’s extraordinary move risks weakening U.S. credibility in Latin America, could embolden corrupt actors, and is likely to draw criticism that he is undercutting decades of U.S. efforts to fight transnational drug networks.”
When I posted my original content, there was no public boats-trike controversy, so it played no role in my anger. I still don’t know if there is a link, since the “orders” video only mentions pitting the military against US citizens, which would be a very odd way to link to drug-boat strikes.
Your characterization of “a less than on the nose way to imply the admin might be issuing illegal orders captures my anger perfectly. How could senior leaders make such an obtuse reference in such a serious case? I may disagree with those charging war crimes, but at least they are being clear. Making a video saying the government (which is what the administration is, like it or not) is the threat? That doesn’t make you angry?
“The operators should know whether a ship is wrecked.” Exactly. And the operators in this case fired not twice, but based on the most recent comments from today’s congressional meeting, four times. They thought it wasn’t wrecked; why should you (or I) second guess them?
In your final comments, you bring up various Trump complaints, which are not the subject of this post. For the record, I think the boat-strikes are a meager excuse for a counterdrug policy, useful only for a modicum of deterrence. Certainly not a solution. And Trump’s pardon policy beggars any attempt to rationalize. But many of the complaints I hear start with “Trump” or in this case something Hegseth didn’t say and then arrive at “war crimes” or “illegal orders.”
Perhaps you became so disenchanted that you didn’t finish my opinion? 🙂
I explicitly stated that the video included much that was standard for the training we both received on our oaths. But it added the opinion that the administration was the threat, “pitting soldiers and IC professionals against American citizens.” Now you no doubt agree with this contention, and that’s fine, it’s just politics. But politics does not belong in an explanation of the meaning of the oath. You never sat through such a training that included “this administration is the threat.” If you had heard such a comment, you would have objected, left, and reported it up the chain. Also, the training included what you were supposed to do, not just, “don’t obey.” That’s my problem.
Finally, both you and Scott seem to tie this video to the boat-strike issue. The strike happened in September, the video in the last week or so. If these Senators/Representatives knew about this leak about the boat-strike before the WaPo story, it is (as I suggested, because as a former DC type, I immediately wondered about the coincidence in timing) both cowardly and unconscionable to make a generalized videos like this. Stand up and make your objections known.
Three points.
You imply that the members of Congress can use their constitutional authority. They did—they spoke out. What else can the Democrats, currently in a minority, do? Any minority in Congress is stymied if the other side will not work with them. For example, the minority cannot start a committee hearing without the consent of the majority members or initiate an official investigation. The only reason there has been a committee meeting on the sinking of boats, the latest from the Trump administration after sending in the National Guard to Democratic-led cities, is that Republicans wanted more information too. This has become a bipartisan issue.
The Snowden case is not germane. If Snowden was unhappy, he should have quit and started an official whistleblower complaint. He did not. Fulfilling your duty to the Constitution does not mean making classified intelligence public.
Third, the comments from the Dems about obeying the Constitution were also aimed at the military leadership, especially, as noted earlier, Trump has indicated he wants the US military to use force against civilians in the US. Thus, the press focus and that of administration critics has been on DoD leadership and not the individuals who pulled the proverbial trigger on the boats.
Three responses:
1). Minority members of both houses have many means of recourse. They can speak from the floor, filibuster and call witnesses (Senate) or submit a discharge petition (House), like they did for the Epstein files . The Democrats shut down the entire federal government for more than a month just to get a vote on enhanced ObamaCare subsidies. The Constitution is somewhat more important than ObamaCare or Epstein, no?
2) Snowden is only different in that he wasn’t asked to obey an order. But the action he took, to decide for himself the legality of a US policy, is exactly what the video-makers were calling for.
3) “Trump has indicated he wants the US military to use force against civilians in the US.” I will assume you’re referring to Trump’s discussion of “the enemy within” when he had the GO/FO all-hands @ Quantico. If you’ve read the transcript, you would know he was referring to immigration, saying the US was invaded and the military was needed to oppose it, just like any other threat. To get from there to “use force against US civilians” is a monumental jump.
Trump has a massive history of threatening violence against dissenters. Multiple rallies he gave feature this. When talking to El Salvador’s president a hot mic caught him saying he wanted to rendition “homegrowns next” to places like CECOT. ICE routinely is recorded expressing no regard for due process, pepper spraying citizen clergy and a congresswoman alike. The Blackhawking and flash grenading and zip tying children midnight apartment building raid in Chicago also come to mind. The fish rots from the head. No monumental jumping needed.
The point of the original post, and my response to Joel, is to debate the “unlawful orders” video. I am sure your position on the Trump administration is clear, but that’s not part of this debate. Joel introduced his view that the video was meant to influence DOD leadership; I don’t know whether that’s true or not. It seems an odd way to influence such senior leaders, when Senators and Representatives could simply call them up and talk to them. Either way, my original point still stands: if they oppose something, they have the power and influence to say so, publicly. Trying to influence Admirals or soldiers with a video is not it.
You are making the false assumption that senior leaders who work for the administration even in DoD will actually talk to Democrats. I assiduously read the news in about five newspapers plus other sources, and. That claim is basically not true. Democrats are ignored.
Again, I do not understand why saying that the military should obey lawful orders is itself disruptive. It is stating a fact. I will eave this at that.
I hope you don’t stop here!
First off, your argument keeps changing. I agree Hegseth etc all won’t talk to senior Democrats in Congress. But you said the video was aimed at military leadership. Now Hegseth et al were the ones GIVING the orders, so it couldn’t have been aimed at them. Thus it was aimed at the senior uniformed leadership, and they sure as heck WOULD take a phone call from Capitol Hill.
Second, consider the cognitive dissonance in your repeated assertions the video is not a problem since it only repeated the training that they may/should disobey unlawful orders. Listen to it again. They do say that, AND they say the administration is the source of the threat, “pitting the military against US citizens.” Again, I challenge you to confirm you EVER got training which said something like that! It’s a political judgment that has no place being tagged onto something as important as lawful orders” training.