The Democrats have released an ad encouraging members of the military to defy what they call “illegal orders”. Presumably this is aimed at disrupting President Trump’s recent use of the armed services to address a bouquet of emergencies confronting the nation — including crime, invasion, and the smuggling of lethal drugs.
The people who made this ad are playing a dangerous game: not only because they are directly trying to subvert the salutary efforts the President is making for the nation’s defense, but also because their simplistic, emotive appeal risks getting military personnel into serious legal trouble.
Here’s why. For obvious reasons, military discipline requires that orders be obeyed first and challenged later (through the chain of command, IG, or legal channels). Shifting the burden to the government to prove every order lawful in advance would undermine good order and discipline. Therefore, the presumption favors obedience unless the accused affirmatively shows the order was clearly and obviously illegal.
In a court-martial in which a service-member is charged with disobeying an order, the burden of proof is initially on the government, but only to establish some basic facts: that an order was given; that the person who gave the order had the appropriate rank and jurisdiction to issue orders to the accused; and that the accused disobeyed the order.
After that, however, comes the question of whether the order itself was manifestly unlawful. A service member has a duty to disobey a manifestly (patently, obviously) unlawful order (e.g., an order to commit a war crime). In such cases, though, the illegality is so apparent that no reasonable person could think the order lawful. And for this, the burden of proof is not on the prosecution, but on the defense.
This means that this ad, the intention of which is to whip up resistance within the ranks — and which, quite obviously, is intended to get as many service-members as possible to disobey direct orders — is probably going to get at least a few biddable and weak-minded soldiers into very hot water. That these people would put out such an inflammatory message without at least giving the necessary context and cautions is shameful: clearly they consider themselves involved in total war, and are willing to use our military, in a truly devious way, as cannon-fodder.
5 Comments
Very good! That needed to be said. Did any of the people quoted in the outrageous ad give even one example of an illegal order?
As published on the House site (but who’s reading!):
https://uscode.house.gov/view.xhtml?req=(title:10%20section:894%20edition:prelim)%20OR%20(granuleid:USC-prelim-title10-section894)&f=treesort&edition=prelim&num=0&jumpTo=true
And in the UCMJ itself:
https://ucmj.us/894-article-94-mutiny-or-sedition/
Frankly, I think a good case might be made …
(I’d say ‘could be’ but I’m no attorney. Where’s Alvin Bragg when we need him!)
(I wonder if there’re any reservists amongst those lawmakers?)
I didn’t see the er, incitement as it were so I don’t know which of the “loyal opposition” took active part in the exercise but I wonder, any reservists in the group? Any lately discharged (and therefore subject to recall)?
Any “illegal” order? Perhaps a review of one the little group may not have had in consideration when they made their utterance …
From the House:
https://uscode.house.gov/view.xhtml?req=(title:10%20section:894%20edition:prelim)%20OR%20(granuleid:USC-prelim-title10-section894)&f=treesort&edition=prelim&num=0&jumpTo=true
And from the UCMJ itself:
https://ucmj.us/894-article-94-mutiny-or-sedition/
I seem to recall in recent times the word “sedition” seems to have taken to being somewhat loosely employed. By certain parties.
One final citation:
https://constitution.congress.gov/browse/article-2/section-2/clause-1/
I think a case might be (I’d say ‘could’ but I’m no attorney) made those fellow citizens should be given an opportunity to walk their plank.
Oh heck. Now I see it (sent you a text Malcolm, sorry for not waiting)
The video came mere weeks after Fox host Hegseth had fired scores of career military for perceived possible disloyalty to Trump. No expert, but I believe historically it’s the common practice when authoritarianism clears the decks for unquestioning military support. Maybe you can understand how that makes some of us nervous.
Hi Jim,
Fair enough, but what’s been done to the military in recent times, and the outright subversiveness of many of the top brass, has made a lot of us nervous as well.
I agree that affairs are proceeding along worrisome lines in general, but I’m afraid that at this point it is all part of the great cycle, and the death of republics. We got ourselves into a terrible place over the last half-century or so, and this is what naturally happens. It may well be, for better or for worse, that the system, and the America, we have throughout my lifetime attached mythical veneration to, is dying, or already dead.