After six Democratic members of Congress, including U.S. Rep. Maggie Goodlander of New Hampshire, released a video reminding members of the military that they are under no obligation to obey illegal orders, President Trump branded it an act of sedition and suggested that they be executed as traitors.
The FBI and the Pentagon have since launched investigations related to the video, although it’s hard to imagine that they amount to anything but a naked attempt to intimidate the six lawmakers. After all, under the Constitution’s speech and debate clause, members of Congress enjoy broad immunity from prosecution for actions tied to their official duties.
But there is much more in play here than simply another attempt to crush dissent. The only rational conclusion to be drawn from this furious reaction to a restatement of basic military law is that Trump has issued illegal orders to the military and intends to continue doing so.
It is important to note that all six lawmakers have military or intelligence backgrounds, which Trump does not. Besides Goodlander, a former Naval Reserve officer, they are: U.S. Sen. Mark Kelly of Arizona, a former Navy fighter pilot and astronaut; U.S. Rep. Chrissy Houlahan of Pennsylvania, an Air Force veteran; U.S. Rep. Jason Crow of Colorado, a former Army ranger; U.S. Rep. Chris Deluzio of Pennsylvania, who served in the Navy; and U.S. Sen. Elissa Slotkin of Michigan, a former CIA analyst who served in Iraq during the height of that war.
Under military law, members of the armed forces take an oath to uphold the Constitution, and they have not only the option but also the duty to disobey “manifestly unlawful” orders. Service members can be punished for following orders they know to be unlawful or that “a person of ordinary sense and understanding would have known to be unlawful.”
This standard may be difficult to apply in the maelstrom of combat in wartime, when split-second decisions have to be made on the basis of imperfect or incomplete information. No military organization can function in wartime if every soldier is a lawyer parsing the legality of their orders, as David French, a former military lawyer, pointed out in an illuminating essay in The New York Times.
This is not the case at present, though. Slotkin has said the video was made in response to concern in the ranks and among retired service members about how the administration was using the military, from launching deadly strikes against alleged drug smugglers on small boats in the Caribbean and eastern Pacific to the deployment of troops in American cities.
So far, 80 people have been killed in 21 boat strikes. These extrajudicial killings of civilians represent an unprecedented use of military force. In our view they are patently illegal and morally outrageous, a view that may be shared by some of those given the mission to murder these noncombatants. The proper punishment for drug smugglers, if that’s what these targets be, is incarceration following trial and conviction, not summary execution.
The Washington Post reports that the Trump administration waved off the qualms of career national security lawyers who raised doubts about this lethal policy. Eventually the Justice Department produced a classified memo that is said to determine “that the U.S. is in an armed conflict with ‘narcoterrorists’ and that using lethal force against them advances an important national interest while not rising to the level of war that constitutionally would require congressional authorization,” according to the Post.
This is a legal fiction on a par with the memos that authorized torture of detainees post-9/11. That a third-string government lawyer declares that the U.S. is at war does not make it so. As far as the alleged drug smugglers are concerned, no indication has been given that they are shooting back, which would seem to be an essential element of armed conflict. It should be noted also that while the U.S. Supreme Court has granted presidents broad immunity for official acts, that does not mean that a subsequent administration might not prosecute military personnel who obeyed a manifestly illegal order.
Which brings us to the broader point, which is that nobody in the Trump administration seems worried that in the future a different regime might invoke precedent and give the military illegal orders targeting them. It’s not hard to imagine that these drug boat strikes and deployments of troops to American cities on spurious grounds are attempts to normalize the use of military force to achieve domestic political ends, in this case ensuring that those currently in power remain there indefinitely, elections or no elections. This is precisely the outcome the nation’s Founders feared and strived to avoid.