So, the president has called for charging a handful of Democratic Party politicians with sedition for advising members of the military and others that they are not obligated to follow illegal orders. President Trump called the action “punishable by death.” The president is wrong.
But let’s start at the beginning.
Whenever a person enlists in the United States military, he or she takes an oath to “… solemnly swear (or affirm) that 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; and that I will 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. So help me God.”
So far so good. We can’t have a military where individuals may casually flaunt any order he or she don’t like. But it’s not quite that simple.
I took that oath on Oct. 24, 1968, before heading to basic training. Now, basic is not just about learning how to march and salute, do a confidence course, drill, and use the rifle range. There’s classroom instruction as well. And in one of those classes in basic training, we were told that not only are we not required to follow illegal orders, but we are also required not to follow them.
And here it gets a little tricky. Members of the military can’t be ordered to rape, rob, or murder innocent noncombatants. And if an order violates the United States Constitution, that, too, would be an illegal order.
Under the UCMJ, the Uniform Code of Military Justice, there is Article 92 that says legal orders must be followed. But orders that require a soldier, sailor, airman, or marine to break the law are not protected by Article 92. And there are legal procedures in place to help a member of the military determine whether an order is legal or not.
The concept of not following illegal orders comes from the Nuremberg trials following WWII. The idea that someone was legally protected even when following illegal or unlawful orders because they were just following orders was rejected by the judges. Just following orders was no excuse, and it remains no excuse,
Interestingly, Trump’s remarks were aimed at Michigan Senator Elissa Slotkin, Arizona Senator Mark Kelly, Pennsylvania Representatives Chris Deluzio and Chrissy Houlahan, and New Hampshire Representative Maggie Goodlander, all of whom have military or intelligence backgrounds, according to Newsweek.
Again, according to Newsweek: “The Rules for Courts-Martial states that an order is lawful “unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.”
This means that illegal orders need not be followed.
Now, as anyone who knows me knows that I am no fan of Democrats or Republicans, but the Democrats who made the video are correct.
As former federal prosecutor Michael McAuliffe told Newsweek: “The fact that the president publicly accuses elected members of a separate branch of government of sedition for making a correct statement of law simply makes the video more justified, not less. And to be clear, the members’ statements contained in the video are wholly legal, even if motivated in part by politics, in addition to need.”
About Rich Schwartzman
Rich Schwartzman has been reporting on events in the greater Chadds Ford area since September 2001 when he became the founding editor of The Chadds Ford Post. In April 2009 he became managing editor of ChaddsFordLive. He is also an award-winning photographer.
