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DUTY TO DISOBEY CLEARLY ILLEGAL ORDERS
The law is clear.
Government officials, including members of the military, are saddled with a duty to disobey clearly illegal orders. The charter of the International Military Tribunal for the trial of the Nazi leadership, which established international law, provided in Article 8, “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him of responsibility….”
The Court of Military Review in the prosecution of Lt .William Calley for the My Lai massacre added, “The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to be accused to be unlawful.”
The risk is substantial that President Donald Trump will issue clearly illegal orders during his second stint at the White House. He voiced enthusiasm for torture in 2016 but then backed down when he confronted push back. Secretary of Defense Jim Mattis was explicit: He would disobey an order to torture, including waterboarding. Moreover, Mr. Trump has displayed equal exuberance over the possibility of ordering the crime of aggression, i.e., wars not in self-defense, against Panama, Denmark, or Canada. The prevailing political hysteria shared by President Trump and Secretary of State-designate Marco Rubio makes thinkable an illegal presidential order to initiate the crime of aggression against China over Taiwan or the South China Sea.
Mr. Trump will be more emboldened in his second term than in his first. The Supreme Court’s decision in Trump v. Untied States (July 1, 2024), conferred criminal and civil justice immunity on the President for any action taken in his official capacity. Moreover, Secretary of Defense-designate Pete Hegseth, during his confirmation hearing, refused to echo Mr. Mattis. Instead, Mr. Hegseth equivocated—an earmark of subservience.
The legal duty to disobey a presidential order to undertake aggressive war attaches to officials who occupy policymaking positions, de jure or de facto, controlling or directing the political or military action of a State. The International Military Tribunal at Nuremberg elaborated, “Somewhere between the dictator and supreme commander of the military forces of the nation and the common soldier is the boundary between the criminal and excusable participation in the waging of an aggressive war by an individual engaged in it.”
American wars not in self-defense, i.e., not response to actual or imminent aggression against the sovereignty of the United States, are clear international crimes, for example, the
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United States invasion of Iraq in 2003 or attack on Libya in 2011. They were indistinguishable from crimes of aggressive war undertaken by leaders of the Third Reich against Poland, Denmark, Norway, Belgium, the Netherlands, Yugoslavia, and the Soviet Union.
Moreover, Article I, section 8, clause 11 of the United States Constitution entrusts the war power to Congress. The President is prohibited from using military force without a congressional declaration of war except in self-defense in response to a sudden attack which had already broken the peace. In other words, a presidential order to use military force in other circumstances without a congressional declaration of war would be clearly illegal and compel disobedience by principal officers of the United States with material influence over military or political policy.
President Trump may also issue clearly illegal orders under the Insurrection Act during his second term. It confers on the President virtually infinite discretion to displace civilian with military rule by declaring obstructions to the enforcement of federal law (10 U.S.C. 333):
“The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it… (2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.”
President Trump may invoke the Act to suppress by military force any political dissent by fact-free declarations that his detractors are obstructing the enforcement of federal laws by resorting to mob violence. A presidential order in such circumstances would be clearly illegal and compel disobedience from all principal officers endowed with material influence over political or military decisions of the President.
The duty to disobey clearly illegal orders is the last guard rail against dictatorship. Courage should be forthcoming accordingly.
Bruce Fein
Ralph Nader