In the not-too-distant future, military members of all ranks and specialties might have a difficult choice: side with an unlawful president or with the Constitution.
It is nice to see that someone else has noticed this. I have been posting about this for the past several weeks. I, too, fear what may happen on 05April. As a former Marine officer, I took my oath to protect the constitution very seriously and hope that others on active duty do as well. Like you, I believe that the military is our last line of defense for our democracy and if they comply with orders violating the constitution, it is truly over. The fascist coup will be complete.
Yes! I served the Navy 68 to 72 and in Vietnam 12/68 until 4/70. I was once given an illegal order by a commissioned officer. It was over a communication procedure and not something of major importance. However, it was clearly illegal. Fortunately, the First Class Petty Officer came to my defense & cleared things up. In Nam I witness other action orders that were of questionable legality, though I wasn't the one who was expected to carry them out. In the Navy I also learned that there are many ways to not follow orders without directly refusing. I'm hoping that the current military men & women now serving us are planning for all the contingencies. I'm sure they are smart enough to figure things out and be creative. Improvise, adapt, & overcome.
If it comes to that (and I fervently hope it doesn't) we will also find out if military service members from E-1 through O-10 are really as right-wing leaning as it appears.
I am retired, but I hope commanders are looking into this dilemma. Law is too tricky for the average troop to be making a decision about whether an order is lawful or not. Commanders will be where the buck has to stop and an order refused. Our sitting president will say anything to get what he wants, but stating a lie does not make it true - even if you are the commander in chief. I am very worried about how some orders might play out. Have military members already deprived American residents of due process - enshrined in the 5th amendment - because we just don’t have time and resources to process all the people that the administrations want to deport?
Thank you for this important article. Sad to say, that I am not sure if our congress is supporting our military. Especially given that nothing has been done about signalgate.
The greatest responsibility for correct followership to political leaders resides in a special class of bureaucratic followers — the military, law enforcement, and intelligence services. There is a conundrum here. Those who serve in these authorized vehicles of State power must be willing to use force, and at times lethal force, at the command of legitimate political leadership, yet also need to be the most willing to disobey if the order is illegitimate.
In liberal democracies, the oath taken is to defend against all enemies of the constitution, internal and external. But in the case of a de facto or actual coup, both sides will claim legitimacy regardless of objective reality. How will military personnel, intelligence, or law enforcement officers recognize the true defender from the usurper?
The usurper of political power violates the essential values that protect individual freedoms and collective decision making, supposedly in defense of the State, while undermining their very core.
The classical meaning of the term “liberal values” must be understood and differentiated from attempts to distort and degrade its meaning. Classical liberal values are the sacrosanct protections of individual freedom to think, speak, write, associate, congregate and live free of arbitrary government coercion. The only legitimate constraints on these rights are where their use denies or abrogates the same rights for others.
Interestingly, these rights conferred upon all human beings living within a society are not fully given to the bureaucrats themselves, or to the armed enforcers of the law and protectors of national defense. In those capacities, individual rights are subordinated to the constraints and responsibilities of the role they are serving. It would be chaotic if everyone in a government agency were freely giving their opinion to the media of the correct interpretation of events, policies and preferred strategies. Or enforcing their own interpretation of laws and regulations. There is merit to norms and rules that require government policy positions to be systematically developed, communicated and executed.
At the same time, those not in official roles must be completely free to express their views, whether consonant with or contrary to the government’s preferred position. It is the bureaucrat who must distinguish between their own professional constraints and the populace’s unfettered rights.
Maintaining this distinction leads the bureaucrat to consequential moral junctures. If they draw a line against oppressive policies and orders, they risk losing their standing, their job, their career, or in extreme cases their life. Nonetheless, there is always an available moral choice. What we seek to do is make that choice unnecessary by staying alert to the progression of autocratic impulses and intervening early enough to prevent consolidating control of State power.
Professional training in these roles would ideally include exercises in which illiberal forces attempt to create confusion and usurp power. Public servants must be able to see through the fog of information war. They must be able to discern the true defender of a free system from the usurper, who always argues they are defending the system. Creating the capacity to make this distinction is prophylactic in a free society. Once authoritarians gain control of a bureaucracy, such training or conversation would be patently and forcefully prohibited. The following example is an important start in this direction.
In 2017, I was invited to speak at the Royal Military Academy, Sandhurst, on the subject of courageous followership and intelligent disobedience. Sandhurst is roughly the equivalent of West Point in the American system of training career officers. Five years later, the British Army incorporated the principles found in these two subjects in the British Army Doctrine, under the title A British Army Followership Doctrine Note.
In November, 2023, this doctrine was officially launched in a day long symposium at the National Army Museum in London, to a live and virtual audience of some 5000 participants, mostly from the British and NATO military.
The document is filled with excellent definitions, and explanations of the values expected to be upheld when in the follower role. Point 42 of the 22 page document includes the following explanation of intelligent disobedience
42 Intelligent disobedience entails the potential need and reasonable freedoms to contravene a direct order or instruction. This may be necessary where a follower is presented with new or conflicting information, or a moral dilemma of which the leader is unaware or unable to be informed. In extremis, it can also relate to the actions of a follower who judges an order to be immoral, unethical, or unlawful. In such instances, the follower has an obligation to challenge
such an order.
Note that the follower doesn’t only have the right to disobey an unlawful or immoral order; they have the obligation to do so.
Thanks for adding this comment and context, Ira, my fellow BK author. My friend Val (author of this oped in the The Contrarian) may join our ranks some day!
"Trump and his muscle might court-martial a few brave souls. But can they court-martial 1,000? Can they court-martial 10,000 making the hard choice to do what is right?"
It may be down to service members forming informal "unions" to not follow illegal orders and to honor their oaths to the Constitution. As noted, what's Trump going to do, file a blanket court martial? The UCMJ attorneys will have something to say about that.
Then can there be firings by courts martial? With no UCMJ attorneys, how can these due process proceedings take place or will more illegal acts replace it (due process)?
If the Chain of Command orders the occupation of the government buildings of a friendly nation, using lethal force if necessary, the lower members of that Chain will indeed be challenged.
I am not sure they can meet that challenge --- reference No Gun Re (1950) and My Lai (1968). The Superiors of the Grunts should never let such orders filter down. And the Superiors should be held accountable. That is not likely to happen in TrumpWorld.
This could be difficult for the rank and file. I would hope that a majority of senior officers would rail against any unlawful orders. If it ever came to that, the military could be the guardians of the Constitution when the DOJ is corrupted, the FBI is corrupted, Homeland Security is corrupted .. the Presidency is corrupted. That is not a position the military wants to be in. The military is apolitical. But when grave damage is being done, what do you do?
It is nice to see that someone else has noticed this. I have been posting about this for the past several weeks. I, too, fear what may happen on 05April. As a former Marine officer, I took my oath to protect the constitution very seriously and hope that others on active duty do as well. Like you, I believe that the military is our last line of defense for our democracy and if they comply with orders violating the constitution, it is truly over. The fascist coup will be complete.
Thank you for this, and your service. These decisions may become a heavy burden for soldiers.
Perhaps an impending crisis might be averted if enough of Congress begin to act from a commitment to their oaths. What the F$ck indeed!
Brave, brilliant essay, Val. Grateful for your service...and how you are continuing to defend the Constitution!
Yes! I served the Navy 68 to 72 and in Vietnam 12/68 until 4/70. I was once given an illegal order by a commissioned officer. It was over a communication procedure and not something of major importance. However, it was clearly illegal. Fortunately, the First Class Petty Officer came to my defense & cleared things up. In Nam I witness other action orders that were of questionable legality, though I wasn't the one who was expected to carry them out. In the Navy I also learned that there are many ways to not follow orders without directly refusing. I'm hoping that the current military men & women now serving us are planning for all the contingencies. I'm sure they are smart enough to figure things out and be creative. Improvise, adapt, & overcome.
I definitely worry about the situation with the military under a deranged commander in chief.
If it comes to that (and I fervently hope it doesn't) we will also find out if military service members from E-1 through O-10 are really as right-wing leaning as it appears.
I am retired, but I hope commanders are looking into this dilemma. Law is too tricky for the average troop to be making a decision about whether an order is lawful or not. Commanders will be where the buck has to stop and an order refused. Our sitting president will say anything to get what he wants, but stating a lie does not make it true - even if you are the commander in chief. I am very worried about how some orders might play out. Have military members already deprived American residents of due process - enshrined in the 5th amendment - because we just don’t have time and resources to process all the people that the administrations want to deport?
Thank you for this important article. Sad to say, that I am not sure if our congress is supporting our military. Especially given that nothing has been done about signalgate.
Thank you for this essay, and for your defense of the constitution and American freedom
Excerpt from To Stop a Tyrant by Ira Chaleff
Refusing orders that violate human rights
The greatest responsibility for correct followership to political leaders resides in a special class of bureaucratic followers — the military, law enforcement, and intelligence services. There is a conundrum here. Those who serve in these authorized vehicles of State power must be willing to use force, and at times lethal force, at the command of legitimate political leadership, yet also need to be the most willing to disobey if the order is illegitimate.
In liberal democracies, the oath taken is to defend against all enemies of the constitution, internal and external. But in the case of a de facto or actual coup, both sides will claim legitimacy regardless of objective reality. How will military personnel, intelligence, or law enforcement officers recognize the true defender from the usurper?
The usurper of political power violates the essential values that protect individual freedoms and collective decision making, supposedly in defense of the State, while undermining their very core.
The classical meaning of the term “liberal values” must be understood and differentiated from attempts to distort and degrade its meaning. Classical liberal values are the sacrosanct protections of individual freedom to think, speak, write, associate, congregate and live free of arbitrary government coercion. The only legitimate constraints on these rights are where their use denies or abrogates the same rights for others.
Interestingly, these rights conferred upon all human beings living within a society are not fully given to the bureaucrats themselves, or to the armed enforcers of the law and protectors of national defense. In those capacities, individual rights are subordinated to the constraints and responsibilities of the role they are serving. It would be chaotic if everyone in a government agency were freely giving their opinion to the media of the correct interpretation of events, policies and preferred strategies. Or enforcing their own interpretation of laws and regulations. There is merit to norms and rules that require government policy positions to be systematically developed, communicated and executed.
At the same time, those not in official roles must be completely free to express their views, whether consonant with or contrary to the government’s preferred position. It is the bureaucrat who must distinguish between their own professional constraints and the populace’s unfettered rights.
Maintaining this distinction leads the bureaucrat to consequential moral junctures. If they draw a line against oppressive policies and orders, they risk losing their standing, their job, their career, or in extreme cases their life. Nonetheless, there is always an available moral choice. What we seek to do is make that choice unnecessary by staying alert to the progression of autocratic impulses and intervening early enough to prevent consolidating control of State power.
Professional training in these roles would ideally include exercises in which illiberal forces attempt to create confusion and usurp power. Public servants must be able to see through the fog of information war. They must be able to discern the true defender of a free system from the usurper, who always argues they are defending the system. Creating the capacity to make this distinction is prophylactic in a free society. Once authoritarians gain control of a bureaucracy, such training or conversation would be patently and forcefully prohibited. The following example is an important start in this direction.
In 2017, I was invited to speak at the Royal Military Academy, Sandhurst, on the subject of courageous followership and intelligent disobedience. Sandhurst is roughly the equivalent of West Point in the American system of training career officers. Five years later, the British Army incorporated the principles found in these two subjects in the British Army Doctrine, under the title A British Army Followership Doctrine Note.
In November, 2023, this doctrine was officially launched in a day long symposium at the National Army Museum in London, to a live and virtual audience of some 5000 participants, mostly from the British and NATO military.
The document is filled with excellent definitions, and explanations of the values expected to be upheld when in the follower role. Point 42 of the 22 page document includes the following explanation of intelligent disobedience
42 Intelligent disobedience entails the potential need and reasonable freedoms to contravene a direct order or instruction. This may be necessary where a follower is presented with new or conflicting information, or a moral dilemma of which the leader is unaware or unable to be informed. In extremis, it can also relate to the actions of a follower who judges an order to be immoral, unethical, or unlawful. In such instances, the follower has an obligation to challenge
such an order.
Note that the follower doesn’t only have the right to disobey an unlawful or immoral order; they have the obligation to do so.
Thanks for adding this comment and context, Ira, my fellow BK author. My friend Val (author of this oped in the The Contrarian) may join our ranks some day!
"Trump and his muscle might court-martial a few brave souls. But can they court-martial 1,000? Can they court-martial 10,000 making the hard choice to do what is right?"
It may be down to service members forming informal "unions" to not follow illegal orders and to honor their oaths to the Constitution. As noted, what's Trump going to do, file a blanket court martial? The UCMJ attorneys will have something to say about that.
What UCMJ attorneys? They've all been fired!
Then can there be firings by courts martial? With no UCMJ attorneys, how can these due process proceedings take place or will more illegal acts replace it (due process)?
A worrisome question.
That is precisely why I brought it up. We're currently incurring more than enough miscarriages of justice already.
As Federal officers, ICE agents should have taken that same oath. I haven't heard reports of any of them refusing orders to this point.
Sadly, they are probably not hired for their brains or ethics.
If the Chain of Command orders the occupation of the government buildings of a friendly nation, using lethal force if necessary, the lower members of that Chain will indeed be challenged.
I am not sure they can meet that challenge --- reference No Gun Re (1950) and My Lai (1968). The Superiors of the Grunts should never let such orders filter down. And the Superiors should be held accountable. That is not likely to happen in TrumpWorld.
This could be difficult for the rank and file. I would hope that a majority of senior officers would rail against any unlawful orders. If it ever came to that, the military could be the guardians of the Constitution when the DOJ is corrupted, the FBI is corrupted, Homeland Security is corrupted .. the Presidency is corrupted. That is not a position the military wants to be in. The military is apolitical. But when grave damage is being done, what do you do?
I found this super compelling. Thank you for sharing your experience and wisdom. 👏🏻🇺🇸
Thank you for sharing this critical information, Ms. Rivera, and thank you for your service.
We are rapidly approaching a perilous crossroad, where all paths we choose are dangerous and irrevocable.
May history exonerate our choices.