• United States

A surprising number and variety of Americans want the military to save us from the politicians they have elected to high office. Specifically, they want the military to refuse to obey orders if deemed illegal. Six Democratic members of Congress with national security backgrounds appeared in a video posted in November exhorting the military to refuse to obey unlawful orders. Even Pete Hegseth caviled that the military must refuse to obey orders—but of course, that was before he was the secretary of defense issuing them. Now he considers it “seditious behavior” to make the same statement.

Make no mistake, illegal orders are where the Trump administration is trending. The president’s frame of reference has been clear since at least 2020, when he prodded then-Secretary of Defense Mark Esper and Joint Chiefs of Staff Chairman Gen. Mark Milley to shoot protesters. In his first term, President Donald Trump also pardoned soldiers convicted by courts martial or dismissed from service—and Hegseth has appointed some to senior positions in the current Defense Department. Hegseth’s firing of the judge advocates general of several of the military’s branches was clearly intended to set a command climate of more permissive interpretation of the laws of war, as evidenced by Hegseth’s frenetic commentary on “stupid rules of engagement,” and giving enemies “no quarter.”

A surprising number and variety of Americans want the military to save us from the politicians they have elected to high office. Specifically, they want the military to refuse to obey orders if deemed illegal. Six Democratic members of Congress with national security backgrounds appeared in a video posted in November exhorting the military to refuse to obey unlawful orders. Even Pete Hegseth caviled that the military must refuse to obey orders—but of course, that was before he was the secretary of defense issuing them. Now he considers it “seditious behavior” to make the same statement.

Make no mistake, illegal orders are where the Trump administration is trending. The president’s frame of reference has been clear since at least 2020, when he prodded then-Secretary of Defense Mark Esper and Joint Chiefs of Staff Chairman Gen. Mark Milley to shoot protesters. In his first term, President Donald Trump also pardoned soldiers convicted by courts martial or dismissed from service—and Hegseth has appointed some to senior positions in the current Defense Department. Hegseth’s firing of the judge advocates general of several of the military’s branches was clearly intended to set a command climate of more permissive interpretation of the laws of war, as evidenced by Hegseth’s frenetic commentary on “stupid rules of engagement,” and giving enemies “no quarter.”

Yet even as the issue becomes imminent, there are practical problems with expecting the military to refuse. And while Americans can and should expect that their military would not obey orders that are “plainly illegal”—such as firing on protesters or killing prisoners in custody—the legality of orders isn’t as clear-cut as the advocates of military refusal would like to believe. Many challenges posited as legal impediments are policy disputes.

The oath taken by enlisted soldiers, sailors, airmen, Marines, and guardians enjoins them to “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.”

Eighty percent of Americans in the military understand that to mean that they have an obligation to refuse to obey illegal orders. But they are not legal scholars trained in nuances of the law of armed conflict. Officers are held to a more demanding standard than enlisted and noncommissioned personnel, but even most military officers couldn’t reliably determine where the legal limits are of strategic and most operational orders. Our system relies on the assumption that orders are legal, since the military would quickly become dysfunctional if every service member had to adjudicate the issue before taking action. And things happen fast in operational environments.

It is certainly true that every commander has a judge advocate general (JAG) available to advise decisions, but legal counsel does not remove either the authority or the responsibility of a commander for operational decisions. Also, a field JAG gets trumped by the secretary of defense’s legal advisor, who gets trumped by the Justice Department’s Office of Legal Counsel. And lawyers rarely give a simple yes or no answer; more often, their answer is something along the lines of “here are factors to consider as you make this decision.”

As constitutional law scholar Joshua Braver has pointed out, “willful disobedience to a lawful order from a superior officer is a crime under military law, punishable by a dishonorable discharge, forfeiture of all pay and allowances, and confinement for up to five years; in wartime, the penalty can be death.” The burden of proof is not on the government to demonstrate that an order was lawful; it is on the service member who refused the order. The Courts-Martial Manual puts it succinctly: disobeying an order is “at the peril of the subordinate.” Considering the wartime reality and nature of combat missions, a military could not operate effectively without this precept.

Moreover, saving the republic is an unfair burden to place on the shoulders of the military. While the military may be the country’s last line of defense against a president resorting to force against Americans, much of the current debate would have them be the first. And that is profoundly unfair to them. The U.S. political system is designed for civilian-on-civilian conflict, yet in recent policy debates, the conversation quickly telescoped down to whether an operational commander ought to have refused to carry out orders. If we get to the point where a military commander’s decision on whether or not to obey an order is the solution, then the system has already failed.

The place to properly affix responsibility for the legality of orders is on the people issuing them: the president of the United States and the secretary of defense.

The right people to adjudicate the legality of orders being issued to our military is first and foremost the Congress. Federalist Paper No. 51 lays out the essential principle: “Ambition must be made to counteract ambition.” What is destabilizing U.S. politics is the failure of Congress to zealously guard and utilize its constitutional authorities to check the extensions of executive power that Trump is enacting.

The military cannot save Americans from that failure. Nor should Americans want it to, because the country would cease to be a republic if the military became the arbiter of political disputes between the two constitutionally authorized sources of civilian control of the military.

Civil society also has important responsibilities: Journalists provide information and investigate administration claims; businesses explain the consequences for their operations and brands and workforces; citizens bear witness. An important part of accountability is refusing to be complicit. So, for example, only Congress has the authority to change the name of the Department of Defense and the title of its secretary. The United States does not have a Department of War and does not have a secretary of war. Every time any Americans use those titles, they make it easier for the president to issue illegal orders.

[hthin]

What the secretary of defense fails to understand is that the laws of war hugely benefit the United States military. By obeying them, the military creates the basis for holding enemies to their restrictions, and that’s especially important when a military is engaged in combat as often as are U.S. forces. The U.S. military also gains reputational and operational advantages—other countries are willing to permit the stationing and training of U.S. forces in their territory because they’re a disciplined and law-abiding military, not a rampaging mob. Washington gains partners because other countries want their militaries to become like the United States’.

Former Marine Corps Capt. Haley Fuller has pointed out that rules of engagement consistent with the laws of war also reduce the likelihood of costly mistakes: “A strike that is lawful but poorly executed can still be strategically catastrophic if it creates civilian harm that breaks partner support or drives escalation.”

Domestically, the laws of war are also important in the country’s ability to knit its veterans back into society, knowing that they have behaved honorably and don’t need to be feared by their fellow citizens. As Maj. Gen. and subsequently President James Garfield captured the idea, “Let it not be said that good men dread the approach of an American army.” Trump and Hegseth are calling that into question.

Restraining U.S. political leaders from damaging the military and its relationship to broader civil society is an urgent task. Democracy is not a spectator sport, and the United States will not retain a republic if Americans expect their military to save them from the politicians they elect. It is instead their civilian responsibility to protect the military from the harm that their politicians would do to them.

This post is part of FP’s ongoing coverage. Read more here.