Trump and the US Military

A long time ago, there was a book [and later a movie] called Seven Days in May.  The story takes place during the Cold War.  The issue at hand is the signing of a nuclear disarmament treaty with the Soviet Union.  The subsequent ratification thereof sets off a firestorm of protest, especially among the President’s political opposition as well as some members of the military.  The uniformed opposition includes several members of the Joint Chiefs of Staff, including its chairman, USAF General James Mattoon Scott.  The director of the Joint Staff, a USMC Colonel named Jiggs Casey, suspects something is amiss.  He discovers the creation of a unit called ECOMCON [Emergency COMmunications CONtrol], which exists to seize television and radio networks. After doing some digging he concluded that the military will stage a coup d’etat near the time of the running of the Preakness [the second race of the horse racing’s triple crown held the first week of May].  He shared his conclusions with the President.  Casey is personally opposed to the treaty, but he puts his sworn oath to defend the Constitution ahead of his personal feelings in order to stop Gen. Scott’s plan.  The President confronted Gen. Scott about the planned coup in the Oval Office.  What followed was an argument about the American system of government, where if a member of the military, especially a general, disagreed with the policies of the government, the best way to change the system is to take off the uniform and ask for mandate at the ballot box. Gen. Scott was unmoved by the President’s arguments and went ahead with his plan.  To make a long story short, Scott’s plot failed.  While the president was engaged in a press conference about the plot, Scott confronted Casey at the end of the story and asked him a question – does he know who Judas was?  Casey answers “Yes, I know who Judas was. He was a man I worked for and admired until he disgraced the four stars on his uniform.”  I believe that in addition to the usual showings of Twelve O’Clock High in the Air Force’s leadership schools, Seven Days in May should also be required viewing in order to reinforce one of the rock-solid underpinnings of the American system – civilian control of the military services.  It’s a good primer about what the military can and can’t do within the confines of the American system.

Which brings us to the present day.  Seven Days in May is a fictitious “case study” about the limits of the military vis-à-vis the President of the United States.  The following scenario reverses the roles – what the President can/cannot do with the military.  And while Seven Days in May is a work of fiction, this scenario is all too real.  Donald Trump is running for president.  He may very well get the Republican nomination and appear on the November ballot.  But what he says about what he would do about terrorists is unsettling.   In December last year he stated he would order the military to waterboard those who threaten the United States and have their families killed.  In a debate last week, he doubled down on that thought.  He said “Can you imagine these people, these animals over in the Middle East, that chop off heads, sitting around talking and seeing that we're having a hard problem with waterboarding?  When you get these terrorists, you have to take out their families. They care about their lives, don't kid yourself. When they say they don't care about their lives, you have to take out their families."  When asked what he would do if the military refused such orders, he said "They won't refuse. They're not going to refuse me. Believe me.”  It’s as if he was saying “they wouldn’t dare oppose me – I’m Donald Trump!”  Actually Mr. Trump, yes they can, and if they take their enlistment/commission oaths seriously, they just might.  Officers swear an oath to preserve, protect and defend the Constitution of the United States, not a President of the United States.  When people enlist in the armed forces, part of their oath of enlistment says they will obey the orders of the president and of the officers appointed above them according to regulations and the Uniform Code of Military Justice.  I emphasize in italics because this is an important point.  

Is there an obligation to disobey unlawful orders?  Such an obligation is not overtly stated in the UCMJ, but it is inferred.  Article 92 makes it a crime to disobey any lawful order.  Obeying an unlawful order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal. The Eichmann Defense [“I was just following orders”] does not work.  That the Eichmann Defense is a non-starter is not a modern thing – this goes back to the early days of the Republic.  The earliest case of the Eichmann Defense came in 1799, during this country’s quasi-war with France.  Congress passed a law that said it was okay to seize ships sailing to French ports.  John Adams issued orders to the Navy authorizing seizure of ships not only bound to French ports, but also those traveling from such ports.  The Navy seized a Danish vessel called the Flying Fish.  The owners of the ship sued the captain in maritime court and won.  The Supreme Court upheld the decision, stating that officers who obey illegal presidential orders do so at their own peril.  Uniformed personnel can’t pick and choose which orders are lawful and which ones are not, but every year the military services give each and every member a refresher on things that are against the rules.  Our military is great at two things and two things only – breaking things and killing people.  But in executing those two tasks, there are rules.  Yes, even a thing as heinous as warfare has rules.  These rules are called the Laws of Armed Conflict.  

Laws of Armed Conflict.  Every year each person in uniform is required to undergo training on the Laws of Armed Conflict [LOAC].  The Army’s Judge Advocate General's Legal Center and School has put together in a single volume [https://www.loc.gov/rr/frd/Military_Law/pdf/LOAC-Deskbook-2012.pdf] to help JAGs and others learn about LOAC.  Here the text discusses such things as the treatment of prisoners of war, protections for civilians during wartime, the kind of weapons that can be used in wartime, occupation and post-conflict governance, and war crimes.  I direct your attention to the treatment of non-combatants.  This volume states “One must make a distinction between combatants and non-combatants. Non-combatants may not be directly targeted and must have their rights respected.”  What makes a non-combatant?  The Geneva Conventions define non-combatants as “the wounded and sick, shipwrecked, prisoners of war, and civilians.”  The families of terrorists that Donald Trump wants to target fall into the category of non-combatants.  As much as one would like to make sure that dead terrorists don’t become martyrs for the families they leave behind, we have to leave them alone.   

It was on this basis that Gen. Mike Hayden told Bill Mahrer a couple of weeks ago that a President Trump faces the risk of a military that would refuse any orders to attack and perhaps kill the families of terrorists.  He wasn’t advocating a mutiny or coup d’etat, but he did say that if so ordered by a President Trump, the military could say “no.”  If Donald Trump was paying attention in class while he was attending a military boarding school, he would know this.  But I think he doesn’t know nor care about the “niceties” of warfare.  Since the aforementioned debate Trump has had a change of heart about the targeting of civilians.   In my view he would not have had such a change of heart had he not been called out on it.  If he can change his mind one way, what’s to say he wouldn’t change his mind again once he was elected?  You can make up your own mind about whether Donald Trump has the temperament to be president.  Judging by what he says, I don't think he does.