Monday, January 25, 2021

Lawful Orders, the Joint Chiefs Memo, and the Peaceful Transition of Political Power

As the nation comes to terms with one of the most turbulent and tumultuous elections in American history, from a military justice perspective it is worthwhile to reflect on how the existing obligation to obey lawful orders helps to maintain military effectiveness while ensuring the conditions for a peaceful transfer of political authority. Despite the widespread turmoil caused by then-President Trump’s systematic election denialism, the transfer of political power from one administration to the next occurred as scheduled – without serious concern that the outgoing president would be able to utilize the military to retain political power.

The expectation that the armed forces will remain politically neutral is a matter that Americans can take for granted. However, this certitude can potentially be undermined if the chief commander of the military demonstrates, as Donald Trump routinely did, a willingness to retain political authority at all costs. This is especially true given that from the campaign trail to Inauguration Day and into his presidency, President Trump repeatedly described military leadership as “my generals” and the armed forces as “my military.”

This, of course, was never true. President Trump led the military as commander-in-chief, but both the president and the military owe allegiance to the Constitution of the United States and, by extension, to the American people.

That then-President Trump could not call on the military to support his systemic campaign of election denialism is attributable to one simple yet significant fact: military members are obliged to carry out only lawful orders – even if the orders come directly from the commander-in-chief. This fact stands in sharp contrast to then-candidate Trump’s assertion that, even if the president orders troops to violate the law by, in this example, torturing detainees, “They [military members] won’t refuse. They’re not gonna refuse me. Believe me.”

President Trump’s Election Denialism Crusade Not Backed By “His” Military

The (now) former president’s orchestrated campaign of election denialism notoriously came to a head with the appalling siege on the U.S. Capitol. In the wake of that attack, a memorandum posted by the Joint Chiefs of Staff addressed to “the joint force” confirmed for the military and the American people what the commander-in-chief never seemed to fully comprehend.

In the words of the Joint Chiefs, “the U.S. military will obey lawful orders from civilian leadership, support civil authorities to protect lives and property, ensure public safety in accordance with the law, and remain fully committed to protecting and defending the Constitution of the United States against all enemies, foreign and domestic.” Any action to “disrupt the Constitutional process is not only against our traditions, values, and oath; it is against the law.” This would include any order that would have been given for the military to disrupt the transfer of political authority from one president to the next: even if that order came from the sitting commander-in-chief.

Perhaps the most sinister aspect of the systemic misinformation campaign now former President Trump fabricated to cast doubt on the legitimacy of the electoral process is that he put his own personal interests above the nation’s. This should come as no surprise: for someone who reportedly loathes “losers” so much, it must be personally devastating to lose at the polls and become the first one-term president in nearly three decades.

While former President Trump’s dangerous personal crusade to overturn the results of the presidential election culminated in the horrific Capitol siege, the longstanding conviction that the armed forces are “his” military that is led by “his” generals was exposed for what it has always been: a narcissistic delusion.

The presidential oath obligates the president to “preserve, protect and defend the Constitution of the United States.” Both the oath of commissioning and of enlistment sworn by military members obliges them to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” For both leader and led, president and military member, defending the Constitution is an obligation to the American people.

When President Trump deliberately attempted to subvert the results of the election in support of his own personal crusade, he became a domestic enemy of the Constitution of the United States and, by extension, of the American people. As dangerous as this crusade was, his election denialism remained confined to unhinged political messaging and a futile spate of court cases.

Through all this, what was one powerful tool that was never even a legitimate option to use? “His” military.

With Great Power Comes Great Responsibility

The great power that is entrusted to the military by the American people comes with great responsibility. The specter of M-1A2 Abrams Main Battle Tanks rumbling down Main Streets across America in support of the commander-in-chief’s election misadventures was never even a remote possibility. That the American people can take this for granted evinces that the great responsibility entrusted to the military is well placed.

It is in this context that the memo published by the Joint Chiefs of Staff for the joint force in the wake of the Capitol siege was such a significant development. The fact that such a memo was necessary at all is a testament to the chaos that was created by President Trump’s campaign of election denialism.

Nonetheless, the reason this memorandum was such a momentous development is that it provided clear and unmistakable guidance to the entire U.S. military. This simple, concise message was designed and intended to cut through the confusion sown by the commander-in-chief’s sustained election delusions. While attorneys for civilian participants in the Capitol siege may now claim that their clients were “duped” by the president to make decisions they “should not have made,” such an assertion would not be supportable in the military context if a member claimed to simply be following the orders of the chief commander.

All military members, from the lowest ranking troop to the Joint Chiefs of Staff, have a duty to comply with lawful orders and are obliged to refuse illegal ones. As the explanation in the MCM that accompanies UCMJ Article 90, Willfully disobeying superior commissioned officer, establishes, “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” Attempting to order military members to contravene the constitutionally-mandated electoral process and the transition of political authority that ensued would have been patently unlawful.

As now-Vice Chairman John Hyten reportedly observed during public remarks at a 2017 security forum, this in the context of potentially illegal orders involving the employment of nuclear weapons: The president will “tell me what to do, and if it's illegal, guess what is going to happen? I'm going to say, 'Mr. President, that's illegal.’” After such an exchange, Hyten explained that he would work to identify a lawful course of action.

In the context of a potential order to employ military force in support of the president’s personal election misadventures, no such lawful course of action would be available. This is so because military members owe allegiance to the Constitution and the domestic law derived therefrom. This means the command relationship established in the Constitution flows down the chain of command from the Office of the President but never from the president personally. As such, an order to disrupt the legitimate electoral process would be “patently illegal” and would therefore subject a military member to punishment for obeying it – no matter the source of the order.

President Trump may have successfully convinced some portion of the American electorate that the election was stolen from “him” – and he may have helped incite a mob to temporarily lay siege to the Capitol building. But the one tool that could have potentially allowed him to actually overturn the results of the election, by force of arms, was not at his disposal. The brilliance of the Joint Chiefs memo in the wake of the Capitol siege is that it succinctly disposed of any confusion instigated by a commander-in-chief that systemically sought to undermine the constitutional election process.

The Transfer of Power and the Resilience of America’s Democracy

 Global strategic competitors have characterized the Capitol siege as evidence of the impending downfall of American democracy. China, for example, characterized the attack as evidence of an “internal collapse of the US political system,” while a Russian politician has noted that America’s “celebration of democracy has ended.” Though politically sensational, such sentiments constitute a gross overstatement. The U.S. political system is resilient, just like the American people.

Through all the turmoil and havoc and confusion deliberately instigated by an unhinged commander-in-chief, the transfer of power from one administration to the next occurred as scheduled and in accordance with results of the constitutionally-mandated electoral process. This occurred against the explicit will of the sitting president and despite the fact that, at the time, he was the chief commander of the most powerful military in the world.

All members of that military joint force are obligated to comply with lawful orders of superiors, but the source of superior authority is not personal; rather, it flows from the Constitution and through the legal and regulatory processes established thereby. In this manner, good order and discipline as well as military effectiveness can be maintained in trust on behalf of the American people. This is true even if, as we have witnessed over these last several months, the commander-in-chief engages in a personal campaign to disrupt the will of the people as expressed through the legitimate electoral process.

In this regard, one simple phrase from the Joint Chiefs memo to the military is as pertinent to the American electorate as it is to the joint force: “keep your eyes on the horizon.” Despite the present troubles, the U.S. Constitution and the political system it represents are resilient – even in the face of a president who was determined to undermine them both.

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