For Troops, NOT Following Unlawful Orders Isn’t As Simple As It Seems

Thanksgiving notwithstanding it’s going to be an active week for news on major topics. Epstein of course, pushback on Trump’s ‘Give Putin whatever he wants’ peace plan, and I’m guessing the debate over the fallout from the video of six Democrats reminding troops they don’t have to follow unlawful/illegal orders will continue.  In fact on that last one the Trump admin is talking about hauling Senator Mark Kelly into court. Military Court.

Let me be clear. Trump wants, even expects those in uniform to be loyal not to the Constitution but to HIM. He was stymied last time he was President but unfortunately he and his team figured out that a major housecleaning of leadership who all their lives have followed their oath to the Constitution, then replacing them with if not sycophants then at least people who wouldn’t stand up to him would have to  happen.  He WANTS a command structure that will tacitly go along with fomenting a situation like the one that happened at Kent State, assuming Fox and others will go along with his message that the troops ‘had no choice’ but to shoot live ammo at protesters.

We all know Trump wants to place the entire country under Martial Law and literally have U.S. troops, active duty one patrolling the streets. Including tanks, armored HumVees and troop carrier vehicles. To do so he’s got to have a better excuse than he’s been able to manufacture, at least so far. But he’s trying and the worry is that the purges of former leadership, both in the upper ranks of the armed forces and civilian leadership at the Pentagon by Hegseth is geared towards having a more subservient group that will profoundly change things. With no one like former JCS Chair Mark Milly holding the line elected officials have chosen to step up and remind the troops of their oath.

Six former military and intelligence officers put out a powerful statement to the troops they are NO obligated to follow unlawful orders. It’s ignited some serious discussion and debate.  And yes, the UCMJ does say troops have not just the right but the duty to refuse to follow unlawful orders. It’s obvious to me that many folks think this is a simple, cut and dried thing. However for those in the armed forces (either active duty or reserves) I can assure you that even for top officers it can be anything but.

To clarify, yes troops have not just a right, but a duty not to follow unlawful orders. Civilians also assume orders including what are known as Rules of Engagement are crystal clear. As someone who served on active duty (Marines) albeit decades ago I’m here to tell you it’s often not at all clear cut what is a legal order and what isn’t. Starting in training everyone is given on the Uniform Code of Military Justice (UCMJ) It includes responsibility to follow orders and rights and rights not to follow unlawful ones. As obvious as some things are, others are anything but and that’s particularly true of what to do when deployed in civilian areas.

In war zones Rules of Engagement might seem clear cut to someone sitting at home looking at news on their computer or TV.  To an extent for troops deployed in hostile areas, especially large towns and cities during the briefing they might seem to cover all the bases. However when troops are actually surrounded by or even facing off against civilians who are openly hostile to their presence all bets are off. Things can change literally in a second, going from heated but peaceful “go away and leave us alone” to actual danger. Stones, rocks and other items being thrown including from rooftops. Shots being fired. Someone with explosives strapped to them  and so on. Often there is only a second or to to decide whether to respond (or not) with lethal force.

No one who hasn’t been in such situations knows how they would handle a given set of conditions/circumstances. Even those who have don’t know how they would respond in the future. I ask you to really think about it, what you’ve seen on TV about what happens in war zones or in neighborhoods here at home with LE. Cops often get it wrong and they get a lot more training in ‘shoot – don’t shoot’ than troops do!  Now take it to the next step which we’ve seen play out some already. The best example is that tiny few blocks in Los Angeles where Trump deployed federalized Guard and even a couple hundred active duty Marines to deal with what was admittedly a bad situation. Local LE could have handled it, but Trump got troops involved. He wants to do more of it and in more places.

I for one don’t think there’s any reason other than Trump wanting to cause what’s depicted in the title picture. Yes, the riots at many universities during Vietnam got ugly. A few times I was taken over (six miles from my hometown) to Carbondale Illinois to watch protesters (some of the biggest in the country took place there) from SIU-C clash with the National Guard troops based at their armory – in Carbondale!  The protests/rioting at Kent State in Ohio wasn’t much different. Until a small group of Guard that had been retreating suddenly turned around to square off against protesters again and someone started shooting. In just 13 second protester’s casualties including four DEAD.

THAT is what Trump has been trying to make happen. Again. Things were different in the 1960s and 70s. There was an awful lot of mutual loathing between the military and the public.  The treatment of troops who served was appalling, and the if not disdain then at least lack of respect from the overall public towards the military was still present by the 1980s when I became a Marine. Over time our country would try to atone to the Vietnam Veterans. And did so enough that when 911 happened plenty of Americans were willing to sign up.

A true trust of the public for our military has been in place for a while now. When, in his first term as President Trump tried to destroy it we had a SecDef and Chair of the Joint Chiefs who publicly made clear that their and the troops duty was to the Constitution and NOT Donald effing Trump. Having been thwarted before, Trump and more importantly his top enablers set out with a vengeance to bend the military to his ill-will. I didn’t expect anything from Hegesth but worry over the fact Milly’s replacement as Chair of the Joint Chiefs and the Commandant of my Marine Corps didn’t resign in protest over the deployment of active duty Marines to Los Angeles.

We are on the edge of the cliff and I’m not confident leadership to will do the right thing. And here’s where it all gets into “What the hell am I supposed to do?” territory for troops deployed to “aid” in civilian law enforcement. At the JCS level when it’s a given JAG is involved in cutting orders for deployments of any kind. IF just enough vagueness is built in to what the administration orders the military to do then by training and experience they will default to said orders being legal. Regardless of any personal feelings they will carry them out.

Now imagine being down the chain of command. It’s natural, even drilled into you that superiors in the chain of command know what they are doing and orders coming from them have to be WAY the f**k “out there” before you so much as question them.  Then consider that even questioning them, say to a staff NCO or company or field grade officer could well get you in trouble or even brought up on charges.

Think of it this way. The ROE approve responding to not just being shot at, but protesters throwing objects like bricks or rocks capable of at least causing serious injury, incendiaries like Molotov Cocktails or even shooting at them with “deadly force.” That last one might seem ok but even IT can be open to question. Are the troops required to determine with some accuracy the direction from which the shot(s) came or just start shooting at the crowd? Throwing containers with flammable liquids can cause serious injury or death but at least troops have a good idea where they were thrown from. Or do they? What if some type of launcher was improvised that could toss something from a hundred yards away?

See what I mean? Even seemingly clear cut rules that allow troops to respond to actual threat of serious injury or loss of life with deadly force can be not so simple at all to the troops deployed into situations they’ve had little, if any training to be in. Yes, when deployed an obviously illegal order might be given. Let’s say an Officer or Senior NCO ordered a squad or a platoon to “make some examples” out of people. If the crowd attacks, even goes over the line in doing so and one or more are subdued then execute them by stringing them up from a lamppost.  Or, if say they got hold of one or more women start spraying rifle fire as turns were taken to gang-rape right there in the middle of the street?

It’s not that Trump and his goons advising him would be just ok with but LOVE that kind of thing to  happen. Because Trump, Miller and the rapey Hegseth would be all for it. However even they would know better than to put it in writing. However it could be conveyed down the ranks that if things “got out of hand’ it would be forgiven, although it might take a while till the fuss died down.

Unfortunately it will be alarmingly easy to create loose rules of engagement that are vague enough that commanders and troops will know if some take things too far it will be if not overlooked then ‘justified’ and forgiven after a time. But for troops, like cops who detest abuses of power by their colleagues speaking out comes at a cost. Not just of one’s career but retribution from fellow cops (or troops) for not covering for their colleagues.  Hopefully if you’ve read this far you are starting to realize that while Article 90 of the UCMJ is real and can be successfully used it’s still one hell of a gamble.  And while an Officer can resign their commission enlisted troops can’t. They are stuck with being in their posts until the date of their discharge.

Even for Officers as we are seeing today with the news they might go after Senator Mark Kelly (one of the people in last week’s video) by recalling him to active duty and trying him via Court Martial! NOW do you understand?

Why this matters is that Trump has been trying to provoke an excuse to use the Insurrection Act which was originally passed in 1807. It has been altered by Congress a couple of times since but critics, especially now have (and say) it’s too vague. It would starting people to know it’s been used numerous time including modern times including the LA riots in response to the Rodney King beating several decades ago to the protests that took place in the aftermath of George Floyd’s murder.

So, it’s not some out of the blue invoking an ancient law that’s rarely been used. Trump has repeatedly made it clear her wants to use the Act to federal the entire National Guard AND deploy active duty troops to American cities. Probably even well outside them all so he can justify declaring Martial Law and legally (thanks to SCOTUS) become the dictator he wants to be. But, you ask what about the Posse Comitatus Act?  Adopted in 1887 it was designed to prevent local and state entities from using military units for civilian law enforcement. However, the original and subsequent revisions haven’t provided much in the way of limting a President from doing so.

History teaches us that when the two laws seems to be in at odds a President has broad discretion. That someone like Trump would make it into the White House was thought so ridiculous there seemed to be no need. Both laws, like the Constitution itself intentionally had built in vagueness, some ‘wiggle room.’ Those who debated, wrote and ratified the Constitution were crystal clear in their fear that someone EXACTLY like Trump could wind up wielding the powers of the Presidency. They went to great lengths to prevent it, but here we are.

We have a self-crowned (Mad) King slash wannabe Mob Boss slash wannabe Dictator who has been trying like hell to invoke Martial Law and suspend the Constitution. Our very own Hitler in the making. Hell, he instigated his own version of Germany’s Reichstag Fire (Jan. 6) and his immigration raids are a daily version of Kristallnacht. Trump WANTS a violent protest against his masked immigration goons to break out so he can send in federal troops. Yes, with orders to shoot to kill to quell protests. So far he’s been held in check but from where I sit he WANTS to provoke what is shown in the title pic – troops (in this case the Ohio National Guard) feeling ‘threatened’, and/or ‘in fear for their lives’ just like countless cops have done and start shooting. I looked for a picture of those Guard troops suddenly turning around and starting to shoot. It’s like it’s been scrubbed from the internet.

Trump’s problem is that there’s a huge difference between the National Guard troops who panicked, turned around and started shooting at protesters on that fateful day at Kent State University back in 1970. Today’s Guard/Reserve units are much more carefully selected, and far better trained. Many have even been deployed into war zones. There are enough that the Guard/Reserve force is ‘seasoned’ with professionals that can and will remind troops they aren’t in some foreign country, and that opening fire means killing fellow citizens including possible friends and neighbors!

It’s no wonder troops are torn. For damned sure the DC guard hated being used as props for the walk across the street to  hold up a bible (upside down!) photo op during the George Floyd protests. Then Chair of the Joint Chiefs Mark Milly apologized for getting caught up being part of Trump’s entourage. It reflects well on him he went the extra mile publishing strong messages to the troops that the military should not take part in political goings on. Trump wanted to mobilize Guard units in 2020 to threaten voters but thanks to Milly he couldn’t get away with it.

Things are different now with a toady SecDef (Hegseth) and JCS members who, after purging prior Service Chiefs and other top Officers in the various branches have a Command Structure less willing to stand up to Trump when (not if, but when) push comes to shove.  THAT is why his threats against the Democratic lawmakers who put out that ‘duty to disobey unlawful order’ video matters. Even if they remember the oath they swore was to the Constitution and not to Trump, he could turn right around have them all arrested and charged on bullshit grounds if they resign rather than carry out unlawful orders.

Having said all that, if the top brass finds itself in the big squeeze then what about down the chain of command? What are Officers at the Company level supposed to tell their senior NCOs, and the rank and file troops? Especially now with a movie about Nuremburg out and who WE (and other allied powers) refused to accept what became after WWII known as the Nuremberg Defense? Countless people and not just the officers who ran the camps that carried out the Holocaust used the argument “I was following orders.” It didn’t fly then, and in some instances since then U.S. troops who’ve tried it have found it didn’t work.

Now it gets REALLY complicated. If the laws, the Insurrection and Posse Comitatus Acts are vague and sometimes in conflict imagine actual orders defining Rules of Engagement if troops are deployed as Trump wants. I’m certain even the idiots he’s got in the WH Counsel’s Office will water down any ‘shoot to kill if you feel threatened’ language more to ‘you are authorized to use deadly force if circumstances require it.’ And there’s where the real dangerous mess lies – what constitutes “Circumstances” that justify use of deadly force?

Now, imagine RWNJ militias and ordinary armed to the teeth MAGAs who have a lifetime of mistrust of the government seeing troops, who are authorized to do searches of homes, businesses etc. to take away their guns?  That WILL happen if Trump gets his way. Yes, some MAGAs would cheer the thought of Trump as dictator but I grew up with a lot of people who became MAGA and I know damn well how much they’d chafe under Martial Law, even under Trump’s version. He’s already had two people, at least one of which was a supporter try to shoot him. Charlie Kirk WAS shot and killed by someone who if not outright MAGA aligned with the movement on many levels.

There’s not a chance in hell Trump would want millions of gun owners out there with the capability (think hunters and former military) and high powered rifles and lord knows what else. Having troops swoop through towns in rural/small town America, MAGA country would be worse than we can imagine. First though Trump has to be able to have some cover for deploying U.S. troops on U.S. soil against American citizens.  Again I say he’s using ICE and other entities to ramp up George Floyd level protests and provoke protesters into violence and major property destruction.

And our military, both active and reserve will be caught in the middle as this article from The Military Times explains. I’ve already gone on too long so I won’t get into the details but it’s a sobering read and worth every minute it takes to read and digest it. It’s over a year old, and eerily prescient. It posits a scenario that we are seeing play out in recent months. It also goes into the impossible choice officers and enlisted troops will have to make.

IF their orders seem  unlawful, contrary to their oath to the Constitution and everything they’ve been taught do they try and use Article 90 of the UCMJ and hope someday to be cleared of charges?  If the top brass can’t say, or is afraid to stand up to Trump anyone who refuses deployment in cities and towns and uses force, deadly or lessor to control the population can ask a JAG lawyer for guidance and still not get clarity.  From where I sit it would take thousands, perhaps tens of thousands and within the space of a week overwhelming the military legal system with refusals to put an end to what Trump wants to do.

As the free world looks on, the Nuremberg Defense WE led the charge against will become acceptable. I was just following orders will likely be successful despite the damage allowing it would do in world affairs moving forward.  Will Congress, including enough Republicans raise enough hell to finally rein in Trump’s immigration antics and more importantly fight even harder to make him back down from use of the Insurrection Act? We’ll have to wait and see.

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