Legal Foundations of Honorable Military Service

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Legal Foundations of Honorable Military Service

The Former JAGs Working Group Perspective

By Daniel Maurer, Steven J. Lepper and Eugene R. Fidell

Since September, the United States has engaged in an invasion of Venezuela and initiated an armed conflict against Iran. In January, the Trump administration threatened to annex Greenland – an unprecedented, unlawful threat of force against Denmark, a NATO ally of the United States. The administration continues to claim that in summarily striking and sinking vessels suspected of carrying illegal narcotics (with significant loss of life), it is engaging in a non-international armed conflict against narco-terrorists. The facts suggest, however, that there is no armed conflict with cartels or criminal gangs, which means the law of armed conflict does not apply. Rather, those being targeted are suspected criminals who, if captured, are subject to federal law, including Fifth Amendment due process. 

Senior officers, such as the Combatant Commanders and the Joint Chiefs of Staff who advise the president and secretary of defense, execute national strategy and policy set by civilian leaders. Sitting at the intersection of policy, national strategy, and global military operations, these officers have a duty to advise their civilian superiors in the Pentagon and White House not only on the feasibility, advisability, and military necessity of operations but also on their legality.¹ 

Officers who serve as Combatant Commanders and on the Joint Chiefs of Staff possess specialized knowledge, expertise, and extensive experience that may conflict with the immediate preferences or intentions of their civilian superiors.² Like all officers, they are also bound by ethical codes and grounded in institutional cultures, norms, and principles that help them navigate such conflicts. They know – or should know – that it is their duty to raise not only operational and tactical concerns, but also ethical and legal objections to orders or decisions. They know they are bound to do so, even at the risk of their careers. They know it is their duty to resign or retire rather than facilitate and lead American military personnel in unlawful wars or other military operations. 

These are not easy decisions, but at that high level of responsibility and expertise, these senior officers must address and reconcile sometimes competing imperatives: 

(1) the necessary presumption that orders are lawful; 

(2) the duty to obey only lawful orders and to disobey orders known to be or that are patently unlawful; 

(3) the constitutional subordination of the military to civilian authority;

(4) the principle that, so long as legal requirements have been met, “make war” decisions are political in nature, reside with the president and Congress, and are not the responsibility of the military; and 

(5) their oath to support and defend the Constitution, which makes certain treaties, including the Geneva Conventions, the U.N. Charter, and the North Atlantic Treaty, part of the “supreme Law of the Land” whose obligations are legally binding. 

The tension inherent in these imperatives is most acutely felt by the Joint Chiefs of Staff, the Combatant Commanders and their senior staffs. It does not simplify matters that the law of military obedience³ and the norms of civil-military relations at the strategic level,⁴ which ought to reconcile the five imperatives, are complex. Nonetheless, it is their responsibility to understand, balance, and apply these competing principles, even if doing so requires questioning, pushing back, objecting, retiring or resigning, and facing adverse professional and personal consequences.⁵ Fidelity to the law is not a lofty abstraction; it is essential to the vital role a non-partisan military plays in a healthy democratic society. 

The nine principles that follow are offered to prompt discussion regarding the legal obligations⁶ of all military officers to dissent from, object to, resign because of, or disobey an order from the president or secretary of defense that he or she reasonably and in good faith believes is patently unlawful.⁷ 

The Legal Foundations of Honorable Military Service 

1. Every officer’s inviolable duty is to the Constitution and every officer is bound by the rule of law. 

● All officers swear an oath to “support and defend the Constitution of the United States against all enemies foreign and domestic.”⁸ After their initial oath upon commissioning, officers repeat the oath at every subsequent promotion. The U.S. military officer’s oath places fidelity to the Constitution above loyalty to any individual office holder, including the commander-in-chief. It reflects an apolitical officer corps tradition that is as old as the Republic. 

● While officers may recommend or object to proposed military actions on policy or strategy grounds, they are bound to accept the final decisions of their civilian superiors. In contrast, officers must refuse patently unlawful orders, such as those that call for the commission of an offense, regardless of the basis or wisdom of such orders in either policy or strategy.⁹ 

2. The Constitution, federal statutes, and treaties to which the United States is a party comprise the “supreme Law of the Land” to which the President and everyone in the military chain of command are subject.¹⁰ 

● The president is bound by the law. Although he has considerable inherent authority as commander-in-chief to protect the national security of the United States, that authority is not unlimited. 

● The president’s engagement of U.S. forces in any use of military force requires a legal basis in both U.S. domestic and international law. 

● The president’s decision to use military force is not solely a matter of domestic politics beyond the scope of professional military responsibility.¹¹ Assessing the lawfulness of a decision to use force is intrinsic to and required by an officer’s oath of office. 

3. Civilian control of the military is mandated by the Constitution; however, no one can require the military to engage in patently unlawful conduct. 

● Lawful civilian control is not a matter of who wins a national election. No person, no matter the office, is above the law.¹² Nor may anyone insist that a member of the armed forces commit a crime or violate their oath to support and defend the Constitution. 

● The military law of obedience to orders is premised on the principle that the only orders that must be obeyed are lawful orders from those with the authority to issue them.¹³ 

● The Manual for Courts-Martial codifies this principle in a strong presumption that those orders are lawful.¹⁴ When in genuine doubt about the lawfulness of an order, military personnel should seek clarification from its originator and, if practicable, consult a lawyer with relevant experience and subject matter expertise. Ultimately, though, the decision to follow or disobey any order resides with its recipients and they disobey—or obey—at their own peril.¹⁵ 

4. Determining the legality of an order to conduct an armed attack or otherwise engage in armed conflict is not always a simple matter. 

The Constitution allocates war powers between the president and Congress. Article I makes Congress the primary decision-maker in decisions of war and peace. Although presidents have constitutional authority under Article II to order military operations and manage warfighting as commander-in-chief,¹⁶ Congress authorizes it,¹⁷funds it,¹⁸ establishes the code of justice to discipline those who fight in it,¹⁹ and the Senate confirms the civilian and military leaders who will manage it under the chain of command headed by the president.²⁰ By design, these officers lead a non-partisan military, subject to the lawful civilian control of both Congress and the president. 

As a matter of domestic law, there is broad consensus that the president may order the military into hostilities without Congress’ prior approval if doing so is necessary to repel an invasion or to respond to an attack on the United States, its territory, or its military.²¹

The executive branch has for decades held that a military operation of limited “nature, scope, and duration” in support of an “important national interest” is also within the unilateral discretion of the president.²² This view has not been embraced by Congress (and it conflicts with section 2(c) of the War Powers Resolution of 1973, which limits unilateral presidential authority to situations of “a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces”)²³ nor by federal courts. 

● What constitutes congressional “authorization” has not been fully resolved by the courts.²⁴ There is also no consensus on whether Congress’ silence (e.g., failing to defund an operation or failing to vote against stopping hostilities already underway) constitutes congressional authorization. 

● Every president since Richard Nixon has objected to parts of the War Powers Resolution on constitutional grounds (in particular, the section 5(c) concurrent resolution mechanism).²⁵ However, no president has objected to the statute in its entirety on constitutional grounds and most presidents (of both parties) have affirmed the constitutionality of its other core provisions. Moreover, the courts have yet to opine on its constitutionality in whole or part. Presidents continue to act in a manner that is consistent with the law’s notification and reporting requirements. With respect to its termination provisions, presidents have generally argued that under the law those provisions are not triggered in any given situation of potentially ongoing hostilities. 

● However, when a president, without congressional authorization or a declaration of war, initiates the use of military force that is (1) not reasonably, at its inception, anticipated by the executive branch to be limited in nature, scope, and duration and; (2) not in response to an armed attack or invasion, that president violates the Constitution’s separation of powers, his specific constitutional duty to faithfully execute the law,²⁶ and his singular oath to “preserve, protect, and defend the Constitution” to the “best of [his] ability.”²⁷ 

○ Any order, direction, command, dictate, instruction, mandate, or any other demand, oral or written, to initiate such a war without domestic legal authority is an unlawful order because it is “beyond the authority of the person issuing it.”²⁸ 

○ Whether the president is held politically or legally accountable under U.S. law for that violation is irrelevant to whether the entry into war exceeds his lawful authority. 

Under international law, when the United States invades or attacks another State, or otherwise initiates any armed conflict, without first receiving authorization from the U.N. Security Council²⁹ or establishing a legitimate claim of self-defense against an ongoing or imminent armed attack,³⁰it violates the U.N. Charter, a treaty that has been part of the U.S. “supreme Law of the Land” since 1945.³¹ 

● Any use of force in self-defense must be necessary and proportionate. 

● Any order, direction, command, dictate, instruction, mandate, or any other demand, oral or written, to initiate such a war without a basis in international law is an unlawful order because it is “beyond the authority of the person issuing it.”³² 

● Whether the president is held accountable under international law for that violation is irrelevant to whether or not the entry into war exceeds his lawful authority. 

5. Determining the legality of the domestic use of the U.S. military is not always a simple matter, but whether an operation is to be conducted within or outside the country, senior officers are equally bound by their duty to protect and defend the Constitution and by the rule of law. 

● Respecting the constitutional rights and civil liberties of Americans and following the law governing the domestic use of military force is a duty of U.S. military officers. 

● Military members have a legal duty to disobey patently unlawful orders, such as to employ lethal force against peaceful civilian protestors in American cities. While the lawfulness of orders to engage in armed conflict involve far greater legal complexity than orders to kill peaceful American protestors, senior officers have an ethical and legal duty to ensure the legality of all orders they receive from their civilian chain of command. Americans demand no less. 

6. Federal law requires senior officers to adhere to the requirement for “Exemplary Conduct,” the oath of office, and the military criminal code. 

● Federal statutes applicable to each branch of the military require commanding officers and others in authority in the armed forces “to show in themselves a good example of virtue, honor, patriotism, and subordination.”³³ 

● The military officer’s oath reads: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”³⁴ 

Retired Lt. Gen. Mark Hertling explains: 

Officers give orders, evaluate legality, and act as the constitutional circuit breakers the Founders intended. They are expected—by law, by 

professional ethics, and by centuries of tradition—to exercise independent judgment when presented with a questionable directive. Officers are 

duty-bound to refuse an unlawful order. It is not optional. It is not 

situational. It is their job.³⁵ 

● Disobeying a patently unlawful order is a fundamental professional responsibility and not a criminal act. Military law establishes a legal duty to disobey all patently unlawful orders, such as an order to commit a war crime. 

● The Uniform Code of Military Justice (UCMJ) prohibits, among many other things, disobeying a lawful order,³⁶ mutiny and sedition,³⁷ conduct “prejudicial to good order and discipline,”³⁸ conduct “of a nature to bring discredit upon the Armed Forces,”³⁹ and “conduct unbecoming an officer.”⁴⁰ 

7. Honor and personal integrity are as much standards of the military professional as competence and diligence. 

● According to Joint doctrine, “US military service is based on values that US military experience has proven to be vital for operational success. These values adhere to the most idealistic societal norms, are common to all the Services, and represent the essence of military professionalism. Duty, honor, courage, integrity, and selfless service are the calling cards of the profession of arms.”⁴¹ 

● Joint doctrine defines “honor” as the: 

code of behavior that defines the ethical fulfillment of our duties. It is that quality that guides us to exemplify the ultimate in ethical and moral behavior; never to lie, cheat, or steal; to abide by an uncompromising code of integrity; to respect human dignity; to have respect and concern for each other. The quality of maturity; dedication, trust, and dependability that commits members of the profession of arms to act responsibly; to be accountable for actions; to fulfill obligations; and to hold others accountable for their actions.⁴² 

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8. Obeying what an officer knows to be a patently unlawful order is fundamentally contrary to his or her oath to the Constitution even if an argument can be made for doing so. 

These decisions are weighty and involve considerations of great personal and professional sacrifice. Nevertheless, improper and illegitimate rationalizations include any of the following: 

● Believing that an order from the president or secretary of defense is irrefutably lawful; ● Believing the ends justify the means; 

● Believing that criminal accountability for obeying the order is unlikely; ● Believing that objecting to or disobeying the order will have personal or professional repercussions; 

● Concern that because someone will ultimately follow the order, remaining on duty will mitigate its consequences; 

● Concern that an officer’s objections or resignation, if made public, would undermine the sense of duty and discipline among his or her subordinates. 

9. To avoid engaging in a criminal act, to uphold one’s oath to the Constitution, and to maintain honor and personal integrity in the face of what a senior officer reasonably believes to be a patently unlawful order from the president, secretary of defense, or a military superior, an officer should consider: 

● First, raising concerns about the lawfulness of a presidential or secretarial order, dictate, command, or directive. Doing so is neither criminal, disloyal, nor unprofessional. 

● Second, objecting to a presidential or secretarial order, dictate, command, or directive on reasonable grounds that it is unlawful. Doing so is neither criminal, disloyal, nor unprofessional. 

● Third, if a patently unlawful order is not rescinded despite objections, requesting a new assignment or requesting permission to retire or resign one’s position. Although historically rare in the U.S. armed forces, such an attempt to persuade civilian authority to reconsider a patently unlawful order, avoid carrying out such an order, protest the order, or retard the execution of the order is neither criminal, disloyal, nor unprofessional. 

● Fourth, as a last resort, disobeying a patently unlawful order. Disobeying an unlawful order is neither criminal under Articles 90 or 92, “conduct unbecoming” under Article 133, nor “prejudicial to good order and discipline” or “conduct of nature to bring discredit upon the armed forces” under Article 134 of the UCMJ. However, orders are presumed lawful⁴³ and disobeying an order carries the risk of a court-martial at which the officer would have to persuade the court that the order was unlawful.

● The responses available in the face of receiving a suspect order should, of course, be considered according to the basis for the objection and the degree of certainty that the order is illegal. Refusal should be considered only after the first three options are exhausted, and even then only if the officer, having consulted competent counsel, is convinced that the order is patently illegal. 

● For example, objections to orders based, say, on presidential usurpation of congressional authority to declare war or a failure on the part of the United States to seek advance U.N. authority or make a legitimate claim of self-defense prior to military action are complicated enough that they should rarely lead to an officer disobeying an otherwise unobjectionable order (though such orders might legitimately be questioned and objected to and might be grounds for resignation or retirement). Conversely, patently unlawful orders to substantively violate international humanitarian law or domestic law may be more readily identifiable as patently unlawful, and thus be more likely to demand disobedience. Again, affected officers are strongly advised to consult competent counsel. 

It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.⁴⁴