Trump Has It Wrong: Soldiers Must Disobey Unlawful Orders

President Donald Trump has called for the arrest and summary execution of half a dozen members of Congress. Their alleged crime: They reminded American military personnel and intelligence operatives that they are entitled—even obliged—to disobey unlawful orders, as the Trump administration engages in a campaign to blow up alleged drug smugglers on the high seas and is sending troops to US cities.

Trump called the lawmakers’ conduct “seditious” and worthy of the death penalty. Trump’s condemnation of the remarks unsurprisingly led to death threats against the legislators.

As someone who has taught university-level courses on the law of armed conflict and the scope and limits of presidential power, I find this spectacle particularly distressing. It betrays a shocking misunderstanding of the legal and moral responsibility of the American military.

Although the current Secretary of Defense Pete Hegseth has demanded “maximum lethality” above all other military values, especially in place of “tepid legality,” and has systematically condemned the role of lawyers and law in constraining the use of deadly force, that approach taints our history and our commitment to the rule of law.

War is an inherently brutal business. But the US has sought to preserve some degree of humanity that constrains the tendency towards savagery.

As early as the famous Lieber Code developed during the Civil War under the direction of President Abraham Lincoln, the American military has consistently recognized that there are limits that must be observed in pursuing even legitimate war aims. Certain actions are simply out of bounds and unacceptable.

The US is a party to the various Geneva Conventions that sharply limit the way in which governments and their armed forces may legitimately prosecute armed conflicts. Civilians—even if they are citizens of an enemy power—aren’t legitimate targets.

Another fundamental element of international humanitarian law, recognized in the US, prohibits governments from sanctioning the “extra-judicial killing” of anyone, whether their own citizens or foreign nationals of a regime that may be regarded as hostile. In the US, the Fifth Amendment to the Constitution explicitly prohibits agents of the national government, including military personnel, from depriving anyone of life without “due process of law.”

Violations of these principles are treated as “war crimes,” and federal law makes such offenses subject to prosecution in American courts.

One fundamental corollary of this principle is that the government may not summarily execute alleged criminals without the nicety of a trial. For this reason, virtually all serious commentators agree that the president’s campaign of blowing up suspected drug smugglers on the high seas is no more a legitimate use of federal power than would be the summary execution of bank robbers, fraudsters, or rapists—or local drug dealers.

The president and his defense secretary have tried to sidestep these principles by claiming that the alleged drug smugglers are somehow in league with a foreign government and are, therefore, “terrorists” who may be executed summarily. There are several problems with this approach.

One is that there appears to be no reliable evidence that the premise is correct, and that the alleged drug smugglers are effectively operatives of the Venezuelan government.

In any event, under the current international principles, the concept of “terrorism” for purposes of the law of armed conflict is, appropriately, defined narrowly. It focuses on organized groups that are engaged in violence for the purpose of pursuing political or military goals, specifically to influence the national policy of a government or its people. However nefarious drug smugglers are, their motives are evidently financial, and their activities have nothing to do with “terrorism” as that concept is properly understood.

At the core of the current debate is whether American military personnel may—or indeed must—refuse to comply with an order that they understand to be unlawful. Both the right and the obligation to do so are a fundamental part of American military tradition and American law.

The notion that a “superior’s order” is automatically an absolute defense to a charge of war crimes was firmly laid to rest by the Nuremberg war crimes tribunal. During those trials, soldiers accused of committing war crimes or crimes against humanity have been unsuccessful in pleading that they were “only following orders.”

Important for the current situation, this principle is part of American military tradition and American criminal law. A member of the military has no excuse for obeying an order when a person “of ordinary sense and understanding would know the order to be unlawful.”

Current American military doctrine recognizes that commanders not only have an obligation to avoid issuing unlawful orders, but also to train their own subordinates that their obligation is to question and, if necessary, disobey unlawful orders and report the incident to the next superior commander.

Nor does it make a difference that the president is ordering these strikes, if as is generally understood, they are unlawful. The Supreme Court has repeatedly emphasized that the president’s power as commander-in-chief is not unbounded. As former Nuremburg war crimes prosecutor Justice Robert H. Jackson once put it when the high court struck down President Harry S. Truman’s seizure of the steel mills during the Korean war, it is wrong to think that the president’s role as commander-in-chief “vests power to do anything, anywhere, that can be done with an army or navy.”

Instead, both by treaty and by statute, the options legitimately available to the president and, therefore, the troops under his command are limited.

Although the Constitution makes the president the field commander of American military forces, the Constitution reserved to Congress the responsibility for determining how the members of the armed forces conduct themselves.

In exercising this power, Congress has made it a federal crime for any American, including members of the armed forces, to engage in “war crimes” as defined by treaty or general principles of international law. Congress also has enacted the Uniform Code of Military Justice, which is explicit in directing that military personnel are only obliged to obey “a lawful command of that person’s superior.” Furthermore, the president lacks power to direct the armed forces to ignore these constraints.

We know that at least one senior military commander responsible for overseeing the campaign to slaughter alleged drug smugglers in the Caribbean and eastern Pacific has stepped down, apparently as a result of discomfort with these orders. We do not know how many others may be morally troubled by the instructions that they are receiving. But we do know that the senior military lawyer for the combat command conducting these operations doubted their lawfulness, concluding that these attacks may constitute unlawful “extrajudicial killings.”

The decision by six members of Congress to highlight the obligation to question orders that appear to violate the Constitution reflects the best traditions of our country. It is those senior officials ignoring their illegality who are betraying these principles.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Philip Allen Lacovara is the former deputy solicitor general of the US, was counsel to the Watergate special prosecutor, and president of the District of Columbia Bar.

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