Military Officers Don’t Have to Obey Trump’s Illegal Orders
By David Cay Johnston, DCReport Editor-in-Chief
Now that Donald Trump dispatched the American military to stop a peaceful protest against police killings of black men and declared he will do the same nationwide, a little-known fact about our military looms large.
Trump expects the American military, regular troops as well as National Guard and Reserve units, to do whatever he commands. Using the racist language of some 1960s southern police chiefs, Trump tweeted that this will include turning “vicious dogs” on protesters and “when the looting starts the shooting starts.”
“No one disobeys my orders,” Trump declared last April during the White House Easter egg roll for children.
Our military officers need to stand firm against tyranny, to take seriously that their oath includes domestic enemies, who can include the sitting president of the United States.
Actually, American law requires that military officers disobey illegal presidential orders.
This is so well established that it’s right in the oath taken by military officers. Enlisted men and women take very different oaths than military officers. That difference provides a little-known bulwark against tyranny. What officers pledge helps shield us from dictatorial power.
To make sure the very significant difference is clear below I added emphasis to both oaths. Also, take note that both oaths are not to defend people or property, not even the nation itself, but to defend the political structure by which we the people govern ourselves.
That constitutional structure, with its limits on power and venues for corrective action, is vital to ensuring liberties of the people endure.
Now, first, the oath Congress enacted for enlistment in our military:
“I, _____, do solemnly swear (or affirm) that 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; and that I will 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. So, help me God.”
“I ______, do solemnly swear (or affirm) that 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.”
Notice that American military officers do not swear “obey the orders.”
1804 Supreme Court Ruling
That officers are duty-bound to refuse illegal presidential orders was established 216 years ago in the very early days of this, the second American Republic.
Congress enacted a law in 1799, when we were in a dispute with our former ally France, authorizing our Navy to interdict ships heading toward French ports.
President John Adams went further, ordering the Navy to also seize ships departing French ports. Following President Adams’ order, Capt. George Little seized The Flying Fish, a commercial brig, after it departed from a French Caribbean port. The Danish shipowner sued in civil court for damages. Little’s defense was that he was following presidential orders.
Our Supreme court flatly rejected that defense in 1804.
Chief Justice John Marshall, writing for our Supreme Court, held that this was no defense. “Captain Little then must be answerable in damages to the owner of this neutral vessel,” Marshall decided.
The issues then resonate today. Adams shuttered newspapers and jailed critics, anti-American actions that Trump muses about as he fires off volleys of incendiary tweets. Thomas Jefferson called Adams a “mad power monger,” a term just as applicable to Trump. And voters threw Adams out after one calamitous term rife with similarities to Trump’s time in office.
The Nuremberg Defense Fails
This significant development in 1804 ensuring that military officers who break the law, even at the direction of the commander in chief, are fully accountable came 141 years before the Nuremberg trials. Nazi leaders unsuccessfully put forward the lame claim they were just following Hitler’s orders. After conviction, the Allies sentenced a dozen Nazi leaders to death.
Our military officers need to stand firm against tyranny, to remember their oath includes domestic enemies, who can and in my mind include the sitting president of the United States. The oaths they take, the Supreme Court ruling in Little and the training officers get on these issues matter if our democracy is to endure.
How Democracies Die
Democracies don’t die overnight. The tanks don’t suddenly appear in the streets as the Army grunts, following orders, rounding people up. That and the inevitable firing squads arrive at the end of a long, slow and observable process in which the institutions of democracy, the institutions that put a check on unbridled power, are captured, hobbled and ultimately killed.
We saw a major step down this path to tyranny Monday night when Trump ordered military police and other troops as well as federal law enforcement to attack peaceful protesters outside the White House.
Trump’s exercise of state violence against a lawful protest came as he spoke just yards away in the Rose Garden about defending peaceful protest. His speech, written in the aggressive language of his white supremacist adviser and minister of hate, Stephen Miller, was, plain and simple a lie.
Trump did this for a photo-op in front of St. John’s Episcopal Church where he awkwardly held up a book he doesn’t understand, the Bible.
That photo op is better called an act of sacrilege. It was promptly and properly denounced by The Rev. Mariann Budde, bishop of the Washington Episcopal diocese. She said he showed disrespect not just for the peaceful protesters and our Constitution, but for the values in the Bible, including the sanctity of human life.
We need to regard our Constitutional liberties as civilly sacred. We must be vigilant in protecting them for ourselves and our posterity.
Featured image: Naval officers taking their oath (US Navy)