US Soldiers Should Disobey Illegal Orders – Of Course

by Mary W Maxwell, LLB

I argue here that soldiers should – nay must — disobey illegal orders.

The US Constitution is clear on the impropriety, or should I say illegality, of a president of the US making war unless it is a war declared by Congress. (See Article, section 8 of the Constitution.)

We read in today’s Washington Examiner (September 12, 2018) that the US will now make war on Syria, based on an alleged use of chemical weapons by Bashar al-Assad on his own people.

As far as I know, al-Assad did not do that — but to make it easy for soldiers to follow my reasoning I’ll go along with the story that Assad is killing Syrians with chemical weapons at a place named Idlib – or anywhere else.

Still, a US war against Syria is illegal. Congress has not declared war on Syria, and so our military does not have the authority to attack that country. This is true regardless of whether al-Assad is doing something bad.

Punishment for Desertion

Consider the plight of the soldier who thinks maybe it is wrong for him to obey an order.  What can he do?

What if a soldier merely disagrees with the way his commander is going about an action in war. Maybe the commander says “You will use tanks”. Could the soldier say “Hey, no, it would be better to use helicopters”? Of course not. It would be ridiculous to have underlings refuse to carry out superior orders. There definitely is no room for democracy in an army.

What if the soldier is sure that a wrong strategy is going to cost him his life? I assume he can lay down his arms and expect to be arrested for insubordination or desertion and get court-martialled.

Where are the rules on this?  For American soldiers, the rules are located in the UCMJ, the Uniform Code of Military Justice, which is authored by Congress. In Article 885 of the UCMJ we find:

“(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.”

Criticizing the Military from Within

What if the soldier is not attempting to save his life, is not laying down arms or deserting, but is opposed to his nation’s undertaking of the war in the first place? Does the UCMJ tell us how he should proceed?

No, you won’t find any guidance on that in the UCMJ.  Probably the authors of that law (namely, Congress) do not want any criticism within the military. If the soldier opposes Congress’s decision, too bad.

Note: such is the nature of the federal government that Congress does indeed have the right to make a decision affecting all, even when there is controversy among the citizenry.

During the Vietnam war, thousands of men who were in line for recruitment, or who were already enlisted, escaped to Canada. The anti-war protests at home were not resulting in a change of US war policy — escape was seen as the only way to be a “refusenik.”

It is noteworthy that after that war ended, President Carter granted a general amnesty.  It’s my guess that he did this in preference to letting the escaped soldiers put their case in court. Who knows what would have come of judicial thinking?

Who Is Held Responsible for War Activities?

To repeat, my argument is about a soldier’s obligation to disobey illegal orders. The “Nuremberg law” is well established— soldiers who obey bad orders cannot duck out of guilt by saying they were “obeying orders.” They are each responsible for what they do.

Their commanders, too, are responsible – for what their underlings do.  We saw in Yamashita in 1945 that even when the leader could not control his men he had to take the rap for what they did.  An American tribunal tried him for atrocities committed by his men when he was the (Japanese) governor of the Philippines. He was hanged.

That case set what is called “the Yamashita standard.”

Note: many believe that a case could have been made that America’s venturing into Indochina was unjustifiable. Many also feel that Lt Calley should not have been punished for the My Lai massacre of 1968.  (He was freed from prison, having served only a portion of his sentence.)

One wonders how a judicial retrospective would alter the standards as to who was responsible, but this has never been done.  Nor was it done regarding the American atrocities at Abu Ghraib. A Current court case offers the opportunity to look at the matter of responsibility of officers.

Smith v Trump

What if an officer felt that he was being asked to involve his men in something illegal – what should he do? Go on, think, and answer that question.

[Pause….]

Captain Nathan Smith filed a lawsuit against Obama in 2016 and then the name of the case was changed to Smith v Trump in 2017. Smith is an officer in the US Army and is NOT OPPOSED to our war policy.  He is happy to fight in the Middle East against the various “insurgents” or “jihadists” or whatever they be called.

However, Smith is aware that the president of the US is not supposed to decide to start a war against a nation.  That is the exclusive prerogative of Congress. He had learned that the war he is engaged in is unconstitutional.  He then reflected on his oath of office. To wit:

“I, _____, do 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.”

“Support and defend the Constitution” – them’s fightin’ words in a nation where the president – actually all branches of government – have thrown law out the window.   Note: all presidents since Ronald Reagan have made wars without Congress’s say-so; before that, the Constitution was dutifully obeyed.

I hope Smith v Trumps succeeds. However, it looks to me that the judiciary is abandoning Captain Smith – and thus all similarly-situated officers.

As mentioned, the case was filed in 2016;  it was called Smith v Obama. What is taking so long?  It was first dismissed by the D.C. District court and then Captain Nathan appealed it. He has an excellent case – saying that he is distressed at his odd situation—asking men to engage in battle when he knows Congress did not approve the battle.

By the time the appeal was heard, Smith was close to the end of his term of service.  He nevertheless had one more year of reserve duty. But the court managed to stretch out the adjudication to the point where he has now completed even the extra year.

That could allow the Court to dismiss the case on mootness (“ no longer an issue”). The Court has recently, on May 10, 2018, requested both parties to submit their thoughts on mootness.  I think it will be outrageous if mootness is allowed to stop the case.

(Note: it need not stop the case.  The famous Roe v Wade case about the Texas law against abortion was adjudicated by the US Supreme Court long after the baby was born!)

US SOLDIERS SHOUD DISOBEY ILLEGAL ORDERS

What a dilemma!  As described so far, there is no guidance that can be sought by soldiers during war. I’ve heard that chaplains are trained on advising a soldier who expresses a questioning of a war on moral grounds. The chaplain is to tell the soldier to wait till he or she is back in civilian life and then complain.

As a citizen, however, I do not mind giving guidance.  I say “Disobey.” That is the correct thing to do morally if you are told to kill people who are not the nation’s enemy. How could anything be plainer than that? I am referring to killing people in an unauthorized war.

The Framers of the Constitution in 1787 were absolutely clear and explicit about their decision to hand the war power to the First Branch of government, the legislature, not the Second Branch, the executive.  I believe it is wrong for President Trump to order soldiers to kill Syrians absent a congressional say-so. So now let’s ask, Is Mary Maxwell liable for punishment for expressing that idea?

Law of Mutiny

There are laws against mutiny. We find, at 10 USC 894, article 84:

(3) [If he] fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer … is guilty of a failure to suppress or report a mutiny or sedition.

(b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court-martial may direct.

I have so far not tracked down any statute or case precedent that says a citizen cannot advise soldier to disobey illegal orders.

Ripeness and Other Tricks in Court Cases

I have twice filed a lawsuit asking the Third Branch of government, the judiciary, to intervene in the matter of a president making war contrary to the Constitution’s granting of this power exclusively to Congress. In 2006 I was the litigant in Maxwell v Bush, and in 2018 I am the appellant in Maxwell v Trump.

It is possible that hundreds of citizens, and maybe soldiers and officers, have gone to court over this matter. We usually do not hear of them when they get dismissed at the district court level.

When writing my 2011 book, Prosecution for Treason, I found 22 war-powers cases. The district courts always dismisses such cases, usually on the grounds that the plaintiff lacks standing. The other most common “reason” given for a dismissal of the case is that the matter is a “political question” is best left to the to political branches.

In other words, let the Congress and the president sort it out.  I think that’s a correct approach in that the Constitution has checks and balances that are sufficient to prevent runaway behaviour by the Executive.  Quite simply, the House of Representatives can impeach an erring president. Out he goes if he breaks the rules.

Naturally, though, the political-question excuse for dismissing a case, before it is even heard on the merits, can’t be right if the protectors of the checks and balances are all treasonously shirking their solemn duty.

There are two other grounds on which Appeals Courts have got rid of pesky war-powers cases. One is mootness, as mentioned above. (It was used in a 1985 case challenging the US intervention in Grenada). The other excuse is ripeness. I am appalled at how ripeness was used to dismiss the following two cases:

Dellums v Bush was an excellent case against the 1991 war on Iraq known as Operation Desert Storm. But the D.C. federal court said, in January 1991, that it was not a ripe case as there was still time for diplomatic talks at Geneva (by Tariq Aziz and James Baker). Thus we never got to hear the merits. Disgraceful.

Doe v Bush was dismissed on ripeness grounds by the First Circuit Court, less than a week before the March 2003 invasion of Iraq — an invasion that even a very creative person would have been hard put to justify.  Not that justifying is involved here.  Each litigant asks only that the court insist on constitutional protocol.

Naturally, behind that request for protocol is the belief that once Congress were forced to debate the war, justification of the war would become an issue, as it certainly should. Yet it’s obvious that Congress deliberately abandoned its duty to debate that invasion.

US soldiers should disobey illegal orders, of course.

The abandonment of Article I, section 8 of the Constitution by all three branches of government seems to leave it up to one final challenge – from the troops.

Let me repeat, and don’t worry, this is valid law: a soldier should –nay, must — disobey illegal orders.

— Mary W Maxwell, LLB, does not like being the middle man in all this.