Published 7/12/2024
SOURCE: military.com
In speaking with more than a dozen Pentagon officials as well as outside experts, what emerged was a landscape where few concrete legal protections exist to prevent an abuse of power by a president, especially if that president chooses to lean on the Insurrection Act, a vaguely worded law originally passed in 1792…
The military can (and should) decline to follow an illegal order.
Uniformed commanders themselves also have a specific obligation to reject an order that’s unlawful, if they make that determination.
All military members swear to “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” Within that oath is the implication that service members hold allegiance to the rule of law.
The oath of enlistment goes on to ask service members to follow orders, but adds that it must be done “according to regulations and the Uniform Code of Military Justice,” or UCMJ.
Both Article 90 of the UCMJ, the charge of willfully disobeying a superior commissioned officer, and Article 92, failure to obey an order, say that they apply only to lawful orders.
Broader legal precedence holds that just following orders, colloquially known as the “Nuremberg defense” as it was used unsuccessfully by senior Nazis to justify their actions under Adolf Hitler, doesn’t absolve troops.
In my (very limited) experience, people in leadership positions in the military take rule of law and duty to country much more seriously than the political class. I like to think they would be the adults in the room. But you never know.
I don’t know what the political fallout would be, but I bet it would be equal parts fascinating and terrifying.
