Guardians or Guardrails? The Role and Rule of Law in the Military

January 13, 2020
Trump Milley

In November, a dispute between President Donald Trump and senior military leaders over whether convicted war criminal Eddie Gallagher should remain a member of the Navy’s elite SEAL community resulted in the departure of the senior civilian service secretary who had publicly (but perhaps not privately) opposed the president’s desires. In the wake of the secretary’s dismissal, military leaders quietly dropped their plans to administratively remove Gallagher’s SEAL designation. Yet, in January, when the secretary of defense stated that he would not follow the president’s direction to plan attacks on Iranian cultural sites and impose disproportionate damage, the president, after initially doubling down on his threats to Iran, ultimately demurred, saying that he “like[s] to obey the law,” although he still expressed bemusement over the need to be “gentle” with cultural sites in the midst of a lethal conflict. Both cases involved disagreement between the president and military leaders over how to interpret and enforce the laws and norms that govern the military’s use of violence, yet the outcomes were quite different. Why? In order to better understand these different results, it’s helpful to focus on the role — and the rule — of law in the military.

 

 

A popular misconception holds that the Nuremberg tribunals following World War II definitively discredited the notion that superior orders are a defense against war crimes. Indeed, in one of the more infamous cases, Otto Ohlendorf, who commanded a unit responsible for the murders of 90,000 Jewish civilians between June 1941 and March 1942, was convicted and executed, despite his defense that, “…it is inconceivable to me that a subordinate leader should not carry out orders given by the leaders of the state.” But the enduring legacy of the tribunal regarding the superior orders defense is far more nuanced. In the High Command Case, the tribunal held:

Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state which he serves and which are issued to him are in conformity with international law. … He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions.

This language from the High Command Case is cited in the Department of Defense Law of War Manual as the guiding principle behind the U.S. military’s implementation and interpretation of the superior orders defense. The space between Ohlendorf’s shocking abdication of humanity and moral responsibility and the need to relieve soldiers of the legal burden of parsing each order for compliance with international law and norms created the category of “manifestly unlawful” orders. A manifestly unlawful order is one which an ordinary soldier would clearly recognize to be unlawful. Reminiscent of Justice Potter Stewart’s famous description of pornography (“I know it when I see it”), this standard of manifest unlawfulness applies only to the most egregious orders, such as orders to fire upon victims of shipwreck, or to kill unarmed prisoners who have surrendered and are under the control of U.S. forces.

As Mark Nevitt convincingly demonstrates, Trump’s threat to intentionally target Iranian cultural sites without any indication that they are being used for a military purpose, if framed as an order, would rise to the standard of manifest unlawfulness. Cultural sites are protected by customary international law; treaty law to which the United States is a state party, thereby incorporating the requirements of the treaty into U.S. domestic law under the Constitution’s supremacy clause; U.S. domestic law regarding war crimes; U.S. military law; as well as U.S. military policy. Short of the extreme examples identified in the Law of War Manual of machine-gunning helpless shipwreck survivors or summarily executing prisoners, it would be difficult to create a clearer example of a manifestly unlawful order. Confronted with direction to plan attacks that an ordinary soldier would understand to be unlawful, military leaders properly refused to follow that guidance.

Contrast this with the legal landscape regarding the Gallagher case. He was tried and acquitted of the most serious war crimes charges against him. He was found guilty of posing for trophy photographs with the bodies of slain enemy fighters, for which he was sentenced by the military judge to time served, as well as a monetary fine and reduction in rank. Trump exercised executive clemency to commute the fine and reduction in rank, and subsequently intervened when the head of the Navy SEALs, Rear Adm. Collin Green, expressed his intent to strip Gallagher of his membership in the SEALs, including his right to wear the coveted “Trident” warfare insignia. The presidential power of pardon and clemency is one of the broadest powers granted to the executive under the Constitution. And, although the president’s power to intervene in an intra-agency administrative personnel decision is less clear, his power to compel the removal of a Cabinet, sub-Cabinet, or military officer is unquestioned. Thus, while there may be ample reason for moral and professional unease about Trump’s intervention into the Gallagher case, the domestic legal footing for his actions is rock solid.

The difference between the two cases yields an important insight into the role of senior military leaders as guardians of the norms of democratic civil-military relations. The idea that the military could serve as a bulwark against Trump’s most extreme impulses has been mooted at various times before and since he took office. For example, Gen. (ret.) Michael Hayden, who led the CIA and NSA, offered his view that the military would not obey orders to bomb the families of ISIL fighters. Gen. Joseph Dunford rejected then-candidate Trump’s calls to bring back waterboarding and other forms of torture, both because they were unlawful, and because they would “have an adverse effect … on the morale of the force.” Trump’s threats to rain “fire and fury” on North Korea in 2018 sparked a round of debate and discussion as to whether senior military and defense officials would or should follow an order to launch a preemptive nuclear strike on the hermit kingdom.

While these discussions often reflect the high level of confidence Americans have in their military as an institution, calls for the military to selectively disobey orders from the president pose a fundamental challenge to civil-military relations. As Rosa Brooks and I have each argued separately, selective disobedience of presidential orders, even orders that violate longstanding norms or values, poses an existential risk to the principles of democratic civil-military relations. To bestow on the military the duty and authority to decide which directives of the commander in chief should be disregarded as rash, unwise, or not in keeping with American values fatally undermines the principle of civilian control of the military.

As the confrontation over targeting Iranian cultural sites has shown, however, this does not mean that the military will be mindlessly obedient to every presidential whim. The military is institutionally reliant on obedience to law, policy, and regulation. But while the norm of obedience extends to most presidential directives, it does not extend to manifestly unlawful orders, as discussed above. The military’s reliance on law and legal interpretation has increased markedly since the Vietnam War, to the point where it is now routine for a commander to have a military lawyer at their side for almost every important decision. Even in the context of a president who may offer clemency to those who commit war crimes, the power of the law still serves as a guardrail against the most extreme presidential directives.

Cicero is supposed to have said that, “in times of war, the law is silent” (inter arma silent leges). The history of the U.S. military since Vietnam, and especially in the wars of the 21st century, suggests that the opposite is the case. Law continues to meaningfully shape the boundaries of military action by U.S. forces. But the boundaries imposed by the U.S. interpretation of the law are quite broad, and the scope of actions that are clearly prohibited by the concept of manifestly unlawful orders is quite narrow.

If the military should not be relied upon to guard against orders that are perceived to violate American values, and the law prohibits only the most outrageous behavior, what options are left to constrain an impulsive or impetuous commander in chief? Ultimately, it comes down to the outrage or acquiescence of American voters over actions taken in their name. Military leaders have demonstrated a proper deference to executive authority, as well as obedience to international law. But when voters go to the polls in November, whether they consider it to be a priority in their voting or not, they will be endorsing or rejecting the boundaries on the use of violence by the U.S. military and the accompanying moral vision for the United States for which Trump has advocated. That is precisely how the Framers envisioned things: a powerful executive, held to account by the judgment of the people — not the military.

 

 

Doyle Hodges is the Executive Editor of Texas National Security Review and a Senior Editor at War on the Rocks.  He has taught at George Mason University, the U.S. Naval Academy, and the U.S. Naval War College, and served as a Fellow in the Stockdale Center for Ethical Leadership at the U.S. Naval Academy.

Image: White House Photo