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Donald Trump, Illegal Orders, and the Law of Armed Conflict

During the course of the current Republican Primary campaign, Donald Trump has made a number of jarring comments regarding American armed forces and the actions he would take as president. At a rally in Columbus, Ohio, Trump said that he approves not only of waterboarding, but also that he would bring back “a hell of a lot worse than waterboarding.” Trump elaborated on his belief that waterboarding is an effective means of extracting information from terrorists, saying, “only a stupid person would say it doesn’t work,” and that even if waterboarding were not effective, “[terrorists] deserve it anyway for what they’re doing.” Trump has also waxed nostalgic for the days “when we were strong” and Sergeant Bowe Bergdahl, who is being tried for desertion and misbehavior before the enemy, would have been summarily executed. Decrying the politically correct nature of the present conflict with ISIS on Fox News, Trump said, “The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don’t kid yourself. When they say they don’t care about their lives, you have to take out their families.”

In response to Trump’s comments about waterboarding and killing the families of terrorists, General Michael Hayden, former Director of both the NSA and CIA, said that he “would be incredibly concerned if a President Trump governed in a way that was consistent with the way that candidate Trump expressed during the campaign.” Gen. Hayden, in an interview with Bill Maher, said that if members of the American armed forces were ordered to kill the families of terrorists, they would refuse to act. Gen. Hayden explained that members of the military are not required to obey an unlawful order and that Trump’s hypothetical order would be a violation of international laws of armed conflict. When asked about Gen. Hayden’s statement at a Republican Debate, Trump responded, “They’re not going to refuse me, believe me. If I say do it, they’re going to do it. That’s what leadership is all about.”

Under military law, a soldier is generally subject to criminal sanctions for failing to follow a superior’s lawful order. [1] The only defense available to members of the armed forces for failing to follow an order is that “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.”[2] More specifically, the standard is that “manifestly illegal orders must not be obeyed.”[3] Determining whether an order is manifestly illegal or not can be difficult because “[m]embers of all armed services have a right to presume the lawfulness of orders they receive.”[4]

The presumption of legality “helps maintain and promote good order and discipline . . . . Since subordinates do not risk incurring liability in most situations, the presumption effectively compensates for the subordinate’s lack of information and eliminates the possibility of hesitation and delay in carrying out orders.”[5] Thus, a soldier’s duty to disobey applies only to “a positive act that constitutes a crime [that is] so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their lawfulness.”[6] Under this standard, “a person’s conscience, religious beliefs, moral judgment, or personal philosophy” do not constitute manifest illegality “to justify or excuse the disobedience of an otherwise lawful order.”[7]

The relevant standard in determining whether an order is manifestly illegal is “would a reasonable person recognize the wrongfulness of the act or order, even in light of a soldier’s duty to obey?”[8] Thus, in cases where the legality of an order is uncertain, “the order must be presumed lawful and it must be obeyed.”[9]

If a U.S. service member believes that an order is manifestly illegal or beyond the authority of the superior issuing the command, the order should not be obeyed.[10] The service member should then “ask for clarification of the order to ensure it was correctly understood, or correctly heard, or was not merely misspoken by the senior person.”[11] Should the superior issuing the order persist, a subordinate must then report the incident to a higher authority.[12]

Under this analysis, an order from President Trump to murder the civilian family members of a suspected terrorist would most certainly qualify as a manifestly illegal order. In his interview with Gen. Hayden, Bill Maher remarked that the military would commit a coup d’etat by refusing to follow an illegal order from Trump. However, “receipt of a manifestly illegal order is not justification for a subordinate to attempt to relieve the superior of duty or, even more unwise, to take physical action, such as resorting to armed force, to stop a superior’s unlawful plan.”[13]

In an interview on CBS, Trump said that, “We have an enemy that doesn’t play by the laws. You could say laws, and they’re laughing. They’re laughing at us right now. I would like to strengthen the laws so that we can better compete.” Trump went on to say, “I happen to think that when you’re fighting an enemy that chops off heads, I happen to think that we should use something that’s stronger than we have right now.”

Trump’s concerns with fighting an enemy that eschews the laws of armed conflict were presaged by former Secretary of Defense Donald Rumsfeld. “There’s something about the body politic in the United States that they can accept the enemy killing innocent men, women and children and cutting off people’s heads, but have zero tolerance for some soldier who does something he shouldn’t do.”[14] However, the laws of armed conflict (LOAC) serve a critical purpose. “We obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”[15] To view weakening the standards of professional conduct of the battlefield as “strengthening” the laws is Orwellian, at best. Engaging groups such as ISIS in a competition of cruelty is beneath the dignity of the United States. The duty of members of the armed forces to disobey manifestly illegal orders serves to protect the honor of the profession of arms as well as our republic.

[1] Captain Robert E. Murdough, I won’t participate in an illegal war: Military Objectors, the Nuremberg Defense, and the Obligation to Refuse Illegal Orders, Army Law. Jul. 2010, at 4, 5.

[2] See id. (quoting Manual for Courts Martial, United States, R.C.M. 916(d) (2008)).

[3] Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War 359 (2010).

[4] Id.

[5] James B. Insco, Defense of Superior Orders Before Military Commissions, 13 Duke J. Comp. & Int’l L. 389, 393 (2003).

[6] Solis, supra note 3, at 359 n. 111 (citing United States v. Huet-Vaughn, 43 M.J. 105, 107 (1995)).

[7] Id. at 359.

[8] Id.

[9] Id. at 360.

[10] Id.

[11] Id. at 361

[12] Solis, supra note 3, at 361.

[13] Id.

[14] Id. at 11 n. 49 (citing Bob Woodward, State of Denial 486 (2006)).

[15] Id. at 9-10.


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