Why the President cannot order attacks that include Law of War violations

Pres. Donald J. Trump

Recent Twitter emissions by President Donald J. Trump suggest that he is contemplating significant retaliatory strikes against Iran if Iran responds to his decision to attack and kill Iranian General Qassim Soleimani with similar attacks. He has threatened not only to attack cultural sites but also a potentially "disproportionate" response. Trump has reportedly dismissed criticism of his plans. Numerous reports indicate that he also said to reporters on Air Force One:

“They’re allowed to kill our people? They’re allowed to torture and maim our people? They’re allowed to use roadside bombs and blow up our people? And we’re not allowed to touch their cultural sites? It doesn’t work that way."

Of course, those of us familiar with international humanitarian law---a.k.a. the law of war---know that, legally, it does work that way.

Gene was kind enough to highlight this article of mine when it was published. It explains why the president does not have constitutional power to authorize or order the military to violate the laws of war. It is a somewhat technical piece, tracing the history of military tribunal jurisdiction to explain how some jurisdiction-conferring text in Article 18 of the Uniform Code of Military Justice (UCMJ) requires the armed forces to comply with the laws of war.

I would welcome the thoughts of anyone with time to download and read the article. For those who do not have the opportunity to do so, the general line of discussion and argument follows.

1. Courts, commentators, and executive branch publications (including the DoD Law of War Manual) are ambiguous about the full extent to which the military is absolutely required to comply with the law of war as a matter of law. Some statements explicitly or implicitly suggest that an executive branch official may override DoD "policy" requiring compliance with the applicable law of war in all military operations.

2. Carefully retracing the development of courts-martial and other military tribunal jurisdiction demonstrates that there has long been an understanding that members of the U.S. military are required to comply with the common law, including the common law of crimes and the common law of war (now customary international law), and were subject to criminal punishment for violations wherever they occurred. (Prior to 1916, court-martial jurisdiction was often temporarily expanded to encompass some common law crimes, particularly capital offenses, during war.)

3. Beginning in 1916, the Articles of War, and now the UCMJ, amended general court-martial jurisdiction to include prescribed common law (and some other) crimes as well as law of war violations. (The article explains the types of law of war violations included in what is now Article 18 of the UCMJ.)

4. This jurisdictional grant was a legislative execution of the law of war---which is a term of art incorporating both customary and treaty law---in domestic military law, thereby requiring the armed forces to comply with it. The armed forces are prohibited from committing not only war crimes but also other law of war violations that result in or entail a crime prescribed in the UCMJ. Put differently, law of war compliance is required to claim a justification defense for acts of war that would otherwise be UCMJ crimes. (For those familiar, this is why there is a policy to try law of war violations as crimes prescribed by the UCMJ.)

5. The article also explains that the order must be a clear or manifest violation of the law of war, like targeting cultural property that is not a military objective. Proportionality (of a specific attack or of a responsive operation) is a different issue, one that involves some individual judgment based upon known facts. It would be much harder for members of the military asked to execute a disproportionate attack or response to "know" that they are manifestly disproportionate. Members of the Joint Chiefs would likely be in a better position to do so, however, if an attack or responsive operation were clearly disproportionate.

6. Finally, Congress has express constitutional authority to "make rules for the government and regulation" of the armed forces, which the Supreme Court has labeled a "plenary" authority. That power, coupled with the Take Care Clause, means that a president cannot override the UCMJ. In fact, the Supreme Court has never held that the president or other member of the executive branch may ignore the law of war when Congress has clearly required compliance with it. (See Hamdan, for an example.) Therefore, a president possesses no constitutional authority to authorize or order the military to violate applicable laws of war.

Although I did not address it in the article, there has long been a vague notion that a president can violate any law, international or domestic, to thwart an existential threat to the nation. I discussed this power and the frequent rhetorical appeals to it in this article. Needless to say, that is not the type of situation to which Trump is referring.

The time may soon come for the leadership of the armed forces to rely upon their oath to the Constitution and uniformly refuse to follow any unlawful order. Our Constitution and rule of law depend upon it. As a plaque on Constitution Corner at the United States Military Academy (West Point) says:

"The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American Officers thereafter swear loyalty to our basic law, the Constitution. While many other nations have suffered military coups, the United States never has. Our American Code of Military obedience requires that, should orders and the law ever conflict, our officers must obey the law. Many other nations have adopted our principle of loyalty to the basic law. This nation must have military leaders of principle and integrity so strong that their oaths to support and defend the Constitution will unfailingly govern their actions. The purpose of the United States Military Academy is to provide such leaders of character." 

May it be so.