What Happens If Trump Gives the Military an Unlawful Order?

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As the United States stumbles ever closer to a moment in which soldiers perform military operations on U.S. streets, the question that becomes more salient by the hour is whether and how a military order is considered lawful, what to do when an order from the commander in chief conflicts directly with the Constitution, and to whom one might turn if one sought clarification on such matters. A military that either cannot or will not advise its members that they have an obligation to understand the law is a military in crisis. On this week’s episode of Amicus^[2], Dahlia Lithwick spoke to two longtime experts on military law who are raising the alarm about the dangers that lie ahead^[3]. Gen. Steven J. Lepper is a retired Air Force judge advocate. He served for 25 years in the United States Air Force. Eugene R. Fidell teaches military justice at Yale Law School and is counsel at the Washington firm Feldesman LLP. Their conversation, excerpted below, had been edited and condensed for clarity.

Dahlia Lithwick: You wrote last week that “at no time since 1860 have military leaders confronted such a grave challenge to their oath to support and defend the Constitution.” Am I right that the challenge lies in this tension: Regardless of who the commander in chief is, and what he or she demands, in the military you have an independent obligation to seek to clarify the law, to seek guidance on the law, and to speak up? This question of the independent duty and obligation to know what the law is, rather than just do what you’re told, is the tension you’re sounding the alarm about?

Steve Lepper: I’m a former judge advocate. I spent 35 years in uniform advising commanders—partly on what the law says he or she can and can’t do when it comes to conducting military operations. When we talk about the challenge that exists for the military, especially as it regards the conduct of military operations within the guardrails the law establishes, we’re really talking about the fact that today, not only are military commanders being asked, and may potentially be asked, to do things that fall outside those guardrails, but those guardrails themselves are a lot less certain than they used to be. The entire legal terrain that applies to orders given to the military and the kinds of operations that the military can engage in has changed in the past year.

As a JAG, I felt free, I felt emboldened, I felt obligated to provide commanders with the advice they needed to execute military operations, or to decide whether an order that he or she was given even fit within those guardrails. It was my job to take the law and help the commander work through the questions about whether or not and how military operations can be conducted, because the how is also very important. Just answering the question of whether or not the order I was given is lawful is only one element of the equation. The next piece of it is: Are the weapons I’m going to be using, are the methods I’m going to be employing, also legal under domestic and international law? When the JAGS, the Judge Advocates General of the Army and Air Force, were fired back in February^[4] with the only rationale given that the law should not stand in the way of military operations^[5]—that sent a shiver through the spines of folks like Eugene and me who have served as judge advocates, because what that meant was both the firings and the rationale that was given^[6] in a variety of press interviews after the fact suggested that what I had been doing for the last 35 years no longer made a difference, was no longer going to be important when we considered whether or not orders given to conduct military operations were going to follow the law.

And a group of us JAGs who had done this work for many years decided we needed to point out to our fellow citizens that this seemingly innocuous decision to fire the JAGS was a lot more than what they thought it might be. JAGS are absolutely necessary to military operations.

And what we see unfolding now is a perfect illustration of the fears we had: The president is saying, I now am the final authority to determine whether or not anything in the executive branch is lawful or not. He has basically taken the role of the JAGs at the lower levels, he has taken that authority and given it to himself and to his attorney general.

Eugene Fidell: There’s a reason Congress provided for Judge Advocates General, the TJAGS, to have fixed four-year terms of office. What the president has done by firing several of the TJAGs is of a piece with the expansive notions of removability of senior federal officials who also have fixed terms of office^[7]. I’m thinking of members of the National Labor Relations Board,^[8] a member of the Federal Reserve^[9]. The removal of the TJAGs is not trivial, it’s a part of a larger pattern of unregulated power by a single person.

Dahlia Lithwick: Gen. Lepper, you’re part of a working group comprised of former judge advocates that just penned a memorandum to Congress, warning of your concerns about the military and the midterms. It’s quite, quite terrifying to read that it’s a short hop from where we are now to where that could go.

Steve Lepper: We’re concerned that what’s being done now is an effort to normalize the idea that the military can occupy cities so that when we do hit the midterms, or even the presidential elections, having the military providing security for polling places won’t seem like such an unusual thing.

We wanted to express our concern and provide Congress some suggestions for how they might deal with those concerns. The concern is that the law is becoming less and less relevant to how military operations are conducted. One thing that we did not include in that memorandum is Stephen Miller’s proposition^[11] that the president has a plenary authority to decide what is and what is not an insurrection, like his executive order that says^[12], I’m the one who determines what the law is for the executive branch. If the courts uphold this idea that he also has the exclusive authority to decide when an insurrection occurs, then facts be damned, anything that happens anywhere could be labeled an insurrection and could be the trigger for deploying troops.

This is really of concern, not only for elections, but also for the possibility this might occur in dealing with domestic terror organizations^[13]. What is a domestic terror organization? Well, the law doesn’t have any provisions for domestic terror organizations, but the president issued an executive order recently that said that Antifa is one^[14]. Antifa is not even an organization, let alone a terrorist organization, but he’s branded it as such. And so one of the concerns that we expressed to Congress was, what does that mean for the use of military personnel? Could he now deploy military personnel to deal with Antifa, which he has defined very broadly? And could that then be the trigger for using the military to deal with his “radical left” opposition?

Dahlia Lithwick: There are things Congress could do tomorrow, there are things individuals can do. Folks can get private legal advice. There is an independent duty in the military to seek legal advice if you think that you are being asked to follow an unlawful order. I would love for you both to say why it is that you think that, as chilling as this moment is, there are things that can be done, this is not inevitable or inexorable?

Eugene Fidell: First of all, on the macro level, I think everybody, every citizen in this country, every legal resident in this country, everybody in this country has agency. That even includes members of the U.S. House of Representatives and the Senate. People have power, and they have to exercise it, they have to exercise their vocal chords, they have to get out and vote, they have to run for office, and so on and so forth. That’s the good news. The bad news is it’s going to take everybody to keep this village from burning down.

I’m basically an optimist, as strange as that may be. I think this is a fantastic country. There’s never been a finer country to live in for anybody on this earth. We want to keep it that way, but we’ve got to have everybody pulling in the right direction. We’ve also got to calm down instead of fomenting divisions in the country, doing things that are divisive, turning the military into simply another part of the base and preventing ICE from becoming another armed force, which we’re well on the road to, unfortunately.

Steve Lepper: The hope I have is based on my 35 years in uniform, my four years before that at the Air Force Academy, and my 18 years before that as a military brat (my dad was in the Air Force). Throughout my entire life I have come to know the men and women of the military, and I believe that despite the deliberate efforts that are underway right now to dismantle the architecture that existed to ensure that military operations, and orders within those operations, were lawful, we have men and women who are serving as commanders, as judge advocates, and people who are going to execute those orders, who are as driven by the honor they feel wearing the uniform as any order they could be given. I believe that at the end of the day, that honor that they feel, that commitment to the Constitution that they make when they raise their right hand and swear an oath to the Constitution and not to any one single person, will ultimately prevail and will ultimately result in the members of the military reinforcing and reestablishing those guardrails. That’s the only hope I have, and it’s based on a history of people in the military wanting to do the right thing.

Eugene Fidell: A final word for members of the military: If you are in uniform, or if a loved one or someone you know is in uniform, and they have questions about the lawfulness of orders, there are places you can go. One such place is the Orders Project, which has a posse of former judge advocates who are willing to take calls and give the kind of confidential, competent, specialized legal advice that people with those questions need.^[19]

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