Speak of the devil! Or do I mean give Pete Hegseth credit? Once upon a distant time, today's secretary of defense -- sorry, my mistake! Secretary of war (and more and more war after that) -- insisted repeatedly on Fox News that American military personnel should never follow an "unlawful" order from -- yes, indeed! -- a future President Trump. "You're not just gonna follow that order if it's unlawful," he said. He then pointed out that military personnel could face criminal consequences if they issued or followed illegal commands. Even more devastatingly, he added, "Here's the problem with Trump. He says: 'Go ahead and kill the family. Go ahead and torture. Go ahead and go further than waterboarding.' What happens when people follow those orders, or don't follow them? It's not clear that Donald Trump will have their back."
That, of course, was in another century (or, to be more exact, during the election campaign of 2016). Now, we're in a world where Pete Hegseth has repeatedly given orders to commit illegal extrajudicial killings by blowing seemingly random boats out of the water in the Caribbean Sea (and the Eastern Pacific Ocean), claiming they're carrying drugs to the United States. In fact, his military blew away two helpless survivors of one of those airstrikes clinging to their overturned vessel after he evidently had given an order, as the Washington Post reported, "to kill everybody." (He now denies ordering those two specific men killed with a second strike and was supported in that by presidential press secretary Karoline Leavitt with a statement one unnamed military official labelled "protect Pete bullshit" and another summarized as "it's throwing us, the service members, under the bus.")
As Hegseth's initial order was evidently "to kill everybody," I have a feeling that, back in 2016, even he might indeed have considered that "unlawful." At this point, though, with Donald Trump in the White House a second time, nothing either of them wants to do seems to be even faintly illegal (to them) and a distinctly Trumpian Supreme Court could well ensure that that's so. What, you might wonder, would Hegseth have said back in 2016 about his own actions? "Even if the U.S. were at war with the [drug] traffickers, an order to kill all the boat's occupants if they were no longer able to fight would in essence be an order to show no quarter, which would be a war crime," commented Todd Huntley, "a former military lawyer who advised Special Operations forces for seven years at the height of the U.S. counterterrorism campaign," and now the director of the national security law program at Georgetown Law.
And in such a world, imagine what it's like to be in the U.S. military or rather, let TomDispatch regular Nan Levinson do that for you, as she also considers what it means to resist the Trumpian and Hegsethian military world from the inside. Tom
Doin'-the-Right-Thing Rag
Who's Responsible When a Military Order is Illegal? (Don't Ask Donald Trump!)
By Nan Levinson
Any story about resistance within the military must begin by recognizing that it's not an easy thing to do. Apparently, that's true even for a much-decorated retired Navy commander, former astronaut, and sitting United States senator. I'm talking about Arizona Senator Mark Kelly. He was one of six Democratic legislators, all military veterans or former intelligence officers, who, on November 18th, released a 90-second video reminding members of the military that the oath they took on enlisting requires them to refuse illegal orders. The implicit context was the Trump administration's deployment of National Guard troops to American cities, but their message took on added urgency after the Washington Post published an expose' about an order coming from high up to kill survivors of an airstrike in the Caribbean Sea.
Michigan Senator Elissa Slotkin, who served in the CIA, on the National Security Council, and at the Defense Department, and had three tours of duty as a CIA analyst in Iraq, spearheaded the action. She was joined by Kelly; Pennsylvania Representatives Chrissy Houlahan (former Air Force captain) and Chris Deluzio (former Navy lieutenant with one tour in Iraq); New Hampshire Representative Maggie Goodlander (Navy Reserve lieutenant, intelligence); and Colorado Representative Jason Crow (Army Ranger, three tours in Iraq).
Speaking directly to the camera, their voices imbued with sincerity, the six stated their affiliations, noted the precariousness of what the military is being asked to do in the second presidency of Donald Trump, and repeated their duty-to-refuse refrain, ending with a rousing, "Don't give up the ship!" It was pretty straightforward stuff and, except for a few digs at the administration, an accurate statement of legal fact.
On enlistment, everyone in the military takes an oath of loyalty not to a person, a party, or any form of politics, but to the Constitution. Enlistees in all branches also pledge to obey orders from their officers and the president. As stipulated in the Uniform Code of Military Justice (UCMJ), it's clear that this means only lawful orders. Officers take a slightly different oath: they, too, swear to support and defend the Constitution, but their oath doesn't include anything about obeying orders from their superiors or the president, presumably because they're responsible for giving orders and ensuring that those orders are lawful. Officers reaffirm their oath whenever they're promoted. Across the board,the UCMJ, the Nuremberg Principles, and the U.S. Constitution establish the right and responsibility of servicemembers to refuse illegal orders or to refuse to participate in illegal wars, war crimes, or unconstitutional deployments.
The Straight-Speaking Six
Never one to bother with legal niceties,Donald Trump (commander-in-chief,no military service) quickly denounced the video on Truth Social as "SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL," adding, "Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL."He also posted: "SEDITIOUS BEHAVIOR, punishable by DEATH!" He then backtracked on the death threat on Fox's "Brian Kilmeade Show."
Members of his administration followed Trump's lead with ever more strident outrage. Within days, Defense Secretary Pete Hegseth (former Army National Guard major, one tour each in Afghanistan and Iraq) called the lawmakers the "Seditious Six." He then began to investigate Kelly, threatening to recall him to active duty so that he could be court-martialed for misconduct.
He went after Kelly because, as a retired military officer, he's the only one of the six who could still fall under the military's jurisdiction. Nonetheless, it's unusual, to say the least, for a secretary of defense (oops, war!) to think about punishing an officer so long after he has retired. Meanwhile, the FBI began investigating all six of those legislators. (Consider it unlikely indeed, however, that the FBI will also investigate the death threats the six have received.)
Less half-baked responses came from places like Military.com, which criticized the legislators for attempting to politicize the military by bypassing the chain of command and speaking directly to the troops, while not citing specific examples of illegal orders and so potentially confusing them. If true, this wouldn't be the first time this country's troops were confused by orders. As a Marine sergeant testified at the 2008 Winter Soldier hearings, "During the siege of Fallujah [in Iraq], we changed rules of engagement more often then we changed our underwear." As for politicizing the military, you need look no further than the Trump version of political theater --National Guard deployments to Democratic-run cities on his shitlist.
The straight-speaking six and their supporters were anything but cowed by the accusations. In a joint response to the president, they proclaimed their love for this country and fealty to the Constitution before concluding, "Our servicemembers should know that we have their backs as they fulfill their oath to the Constitution and obligation to follow only lawful orders. It is not only the right thing to do, but also our duty" This is a time for moral clarity."
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