Outside the Beltway

Lawful But Unethical Orders

Should military officers substitute their judgment for the Commander-in-Chief's?

James Joyner · Sunday, September 29, 2024 · 8 comments

Dr. Graham Parsons, an ethics professor at West Point, takes to the op-ed pages of the NYT to argue, “There’s a Dangerous Misconception About the Military’s Obligations to the President.” After rehashing some civil-military relations under the Trump administration, he writes,

Now, as then, a question arises: When is the military permitted (and perhaps obligated) to criticize or even refuse an order from a commander in chief — and when must it defer?

Of course, if an order is clearly illegal, service members are legally bound to disobey it. But the law in this space can be ambiguous. For example, the Posse Comitatus Act of 1878 generally prohibits using the U.S. military for domestic policing purposes, but that prohibition has exceptions — and the Insurrection Act of 1807 grants the president the authority to unilaterally deploy the military to restore domestic law and order. A president’s advisers have plenty of wiggle room to make reasonable-sounding legal defenses of domestic policing operations.

This sort of legal uncertainty might seem to dictate a very strict policy of military deference. Indeed, people on both the right and the left have criticized [then Chairman of the Joint Chiefs] General [Mark] Milley and [then-Secretary of Defense Mark] Esper for their actions in 2020, arguing that they overstepped, undermining the authority of the commander in chief and compromising the military’s political neutrality. The assumption here is that political neutrality means the military must obey all presidential orders, as long as those orders are not clearly illegal.

But this assumption is mistaken. It is true that political neutrality means having the military generally defer to civilian authority. But neutrality also means not letting the military become a partisan political tool, which is why service members are prohibited from, among other things, taking part in political events in uniform. If the president orders the military to take actions that jeopardize its neutrality, the military is ethically justified in criticizing and even resisting the order, even if it is not clearly illegal.

Parson makes an error here that’s particularly frustrating coming from someone in the professional military education space: conflating the uniformed military and their civilian overseers. The Chairman and the Secretary have radically different remits under our system, both legally and ethically. The latter absolutely has an ethical obligation to refuse to follow presidential instructions they deem immoral or damaging to the standing of the military. The former has a legal obligation to offer his best military advice to the President but has no right, absent submitting his retirement papers and leaving his post, to publicly criticize his Commander-in Chief.

Critics of General Milley and Mr. Esper fail to appreciate that political neutrality exists to solve two problems. The first is to ensure that the military does not usurp power and turn on the society it is designed to defend. Insofar as the military remains obedient to civilian authorities, there is no risk of a military coup.

If avoiding military coups were the only problem that political neutrality was meant to solve, equating neutrality with obedience would suffice, and actions like General Milley’s probably would violate it. But political neutrality exists to solve a second problem, as well: to ensure that the military is subordinate only to legitimate democratic authority — not to, say, a tyrant

I honestly don’t know where this comes from. The expected norm of neutrality exists, yes, because of historic fears of military coups but, more generally, because the military is an instrument of national power subordinate to elected policymakers. If military leaders are perceived as partisan actors, their value as professionals is greatly diminished because they will not be trusted to give unvarnished advice or to carry out orders they dislike.

To be sure, we don’t want our military to serve a tyrant. But it’s not their role to deem their Commander-in-Chief a tyrant and give themselves permission to disobey him. Indeed, it’s hard to conceive of a more grossly partisan act.

Thankfully, we have a system of checks and balances in place. First and foremost, our Presidents are elected by the people, albeit in an imperfect manner. Second, we have a separately-elected, bicameral legislature with enormous power. Third, we have a Supreme Court to arbitrate disputes between the two elected branches. Within th military sphere, we have a civilian Secretary of Defense and a presidentially-appointed, Senate-confirmed secretariat. And House and Senate Armed Services Committees.

Could all of those mechanisms fail to protect us from a tyranical President? Quite possibly. But it’s still not obvious that we want the American military to be the final arbiter of tyranny. There have certainly been times, in my own adult memory, when they vehemently thought a Democratic President was morally unfit for office and not acting in the best interests of the nation’s security. Thankfully, their professional norms held and they nonetheless obeyed lawful orders.

In a political system like ours, unlike in an autocracy, the people are the ultimate sovereign. This is why, when members of the military take their oath of office, they pledge to defend the Constitution, not the president. Political neutrality is a democratic ideal. As such, it is not a promise of absolute military subordination to the executive. On the contrary, it is a commitment to uphold the political order that ensures the sovereignty of the people. This requires a clear separation of the military from the president’s partisan political agenda.

For this reason, the military has an obligation to object to or resist certain commands that blur this line. If the president orders the military to disperse protesters who are upset that the president will not leave office after losing an election, military leaders could be obligated to refuse on the ground that the operation threatens the democratic order.

No, goddamnit, they couldn’t. It’s quite possible that they would judge the order illegal. But they don’t have the right, much less an obligation, to substitute their judgment of what’s good for the democratic order for that of the democratically elected President.

If the president orders the military to police urban areas, military leaders could be obligated to refuse on the ground that the operation threatens the due process rights of civilians (because the military is designed to confront combatants, not enforce laws in a civil society). Mere passive obedience to orders like these would be inconsistent with the demands of political neutrality.

No. Just no.

Again, it’s quite possible that the OSD General Counsel or other senior legal advisors to the Secretary or Chairman would advise that such an order is illegal. Ditto a lower-level attorney if the order came lower in the chain of command. But military leaders are neither authorized nor trained to assess the intricacies of due process law, much less to override the judgment of the President on them.

Regardless of who ends up in the White House in 2025, it is crucial to a just and stable society that we understand how the relationship between the military and civilian leaders ought to function. Contrary to a dangerously naïve conception of military obligation, resisting a legal order is not necessarily a violation of political neutrality.

Yes. It is. By definition.

Military resistance does not always undermine the rightful authority of civilian leaders, nor is it always tantamount to putting one’s personal political or moral convictions above one’s loyalty.

Again, yes it is. By definition.

Parsons’ close, though, may be where we agree:

Sometimes resistance is essential to preserving our democracy. And that is one of the fundamental purposes of our military.

There’s a difference between resistance and disobedience.

The Chairman is required, by law, to provide his best military advice to the civilian leadership. As such, it is absolutely incumbent on him to tell the President and Secretary of Defense if he believes their orders are unwise and to explain why he thinks so. He’s also entirely within his rights, absent the exigencies of time, to bring that advice to the attention of the HASC and SASC.

During the first Trump administration, senior leaders, wisely I believe, decided that “a Tweet is not an order.” While that’s a gray area, they quickly realized that Trump was prone to spouting off half-baked ideas. So, they made it a practice to utilize the system to clarify what the President wanted and to require orders to be issued through traditional, more formal means. More often than not, the half-baked idea was rescinded rather than made into policy.

Crucially, however, they ultimately carried out unwise-but-lawful orders when the Commander-in-Chief insisted. Because that’s their role in our system.