Could the Military Disobey a President Trump?

Picture this: Within the first month of Donald Trump's inauguration, there is widespread unrest in the Middle East. An American embassy is attacked. There are several fatalities.

Furious, and looking to distinguish himself from President Obama and Hillary Clinton, Trump pledges a retaliatory response so extreme no one will ever think of attacking the United States again. He gives an order he promised to give on the campaign trail, telling the military leaders to hunt down and kill any known family members of the terrorists.

Only the generals refuse.

It's a wild scenario – but it's not unthinkable. Trump's entire campaign has been outlandish and unpredictable, and no one can confidently predict where it will take the country should he become president. If he's taken for what he says on the campaign trail, though, military refusals of the commander in chief are as likely as not.

Michael Hayden, a former general and director of the CIA and of the NSA, publicly stated that if Trump governs the way he campaigns, the military may well be legally obligated to disobey his orders:

‘Manifestly unlawful’ orders

Ken Lukowski, a writer for the conservative outlet Breitbart, pointed out that military officers do not swear obedience to the president, but they swear an oath to “support and defend” the Constitution. The oath, “makes no mention of the president at all, or the chain of command,” Lukowski said.

Some worry that the discussion of disobeying a president’s orders amounts to discussing a “coup.” But even the president is subject to the rule of law, and he does not have free reign to issue any orders he wants.

Hayden singled out two of Trump's campaign pledges as illegal: targeting the families of terrorists and instating waterboarding (and worse) as a common military practice.

Jeff McMahan, a philosopher and frequent writer on the topic of the ethics of war, agreed with Hayden.

“It is a part of the law that a soldier is legally required to disobey a ‘manifestly unlawful’ order,” he said.

"Manifestly unlawful" orders are those that clearly and unequivocally violate the law. For example, soldiers would be required to disobey any orders that violate the Geneva Conventions or the Rome Statue, the international agreement that established the International Criminal Court in 1998.

In 2006, the Supreme Court found the Geneva Conventions applied even in the "war on terror," as it was then called. Article 3 of the Geneva Conventions explicitly prohibits violence toward noncombatants and torture of detainees, and these provisions have also been incorporated into the Uniform Code of Military Justice.

Peter Feaver of the magazine Foreign Policy noted that no military lawyer would defend Trump’s proposals, and that any lawyer who tried would in all likelihood fail in court.

Under what circumstances should military leadership refuse to follow the orders of the president? Let us know in the comments section below.

So, is there any leeway for a soldier who follows an unlawful order? McMahan argued that being given an unlawful order, or being morally ignorant in certain ways, could partially excuse a soldier’s wrongful actions. But it does not justify the illegal acts. If the case were to come before the International Criminal Court, both those who gave the order and those who carried them out could be held responsible.

In other words, the law intentionally incentivizes justified disobedience, and rules out, “I was just following orders” as an exculpatory defense.

Trump’s changing statements

The Trump campaign declined to comment on this story. A spokesperson for the Pentagon responded to a request for comment on Trump's proposals saying only, “We don’t usually deal with hypotheticals over here.”

In a recent statement to the Wall Street Journal, Trump asserted that he wouldn't order the military to break the law. However, he hasn't backed down on the very proposals at issue; in the last Republican debate, Trump doubled-down on his plans, saying of the military, "If I say do it, they're going to do it. That's what leadership is all about."

On CNN, a Trump spokesperson said that this whole controversy arose because Trump’s statements were taken “literally.” She continued, "What he's saying is that he wants to go after them with the full force of everything we have."

But Tump's exact view seems to oscillate. In an appearance on Face the Nation over the weekend, John Dickerson asked Trump if our rules of war are what “separate us from the savages.”

“Look, you have to play the game the way they’re playing the game,” Trump replied. “I want to stay within the laws. I want to do all of that, but I want to increase the laws.”

Debatable disobedience

As Hayden notes, the issue at hand with Trump’s unlawful proposals is pretty uncontroversial; it’s widely known that unlawful orders should not be followed. But scholars, both in the military and outside of it, continue to debate the complex relationship between a soldier’s convictions and the orders of superiors.

For McMahan, the current consensus doesn’t go far enough. “One area in which disobedience to an order is not allowed is the case of an order to fight in a particular war,” he said. Soldiers are required to fight in wars even if, in their view, the war itself is manifestly illegal.

"There are wars that are illegal," McMahan explained. According to the traditional legal thought, however, "Soldiers are not supposed to be responsible in any way for making judgments about the morality or legality of a war. They are responsible only for their individual acts in war."

McMahan believes we should extend the principle that requires soldiers to disobey an illegal order so that it requires them to refuse to fight in any illegal war.

Acceptance of such a norm might be extremely consequential if a controversial figure like Trump were elected. It could give the armed forces an effective veto over entering into a conflict that they viewed as unlawful. Given candidate Trump's lack of deference to legal norms, it's not a outlandish to imagine a President Trump straining the legal limits on engaging in armed conflict.

Some countries do allow conscientious objections for conscripted individuals, but an acceptance that enlisted service members could opt out of particular wars they think are unlawful does not seem forthcoming. Were we to accept McMahan's view, we might fear that this would make it more difficult to go to war in a time of need. But putting more obstacles in the path to war might make the world more peaceful.

The importance of rules of war

According to McMahan, the acceptance of rules of war has helped promote civilized norms with in combat situations.

For example, he pointed out that the United States used torture tactics in wars in the previous century, and while there were some objections, it was not highly controversial. But when the American military abuses were revealed in the Iraq War at the Abu Ghraib prison, administration officials encountered widespread outrage.

“It’s just imbecilic to say that what one needs to do when dealing with terrorists is go after their families.”

And despite the fact that the Bush administration admitted to waterboarding prisoners, it was always argued that this use was limited and that it was not a form of torture.

Trump, on the other hand, flouts these norms of armed conflict. He thinks we should go far beyond waterboarding and has enthusiastically declared that “Torture works!” And even these claims are less controversial than his embrace of targeting non-combatants.

These proposals represents a real shift in mainstream discussions of the ethics of war. "I think it's just horrible," McMahan said.

“It’s just imbecilic to say that what one needs to do when dealing with terrorists is go after their families,” said McMahan. “That’s what terrorism is: going after people’s families; killing or harming innocent people as a means of trying to affect the behavior of others.”

“Then, if he starts doing this, going after the families of terrorists, then he is a terrorist.”

Photo Credit: Defense Images via. Flickr