The Constitution vs. the Commander-in-Chief: The Duty to Disobey Unlawful Orders

“The United States boldly broke with the ancient military custom of swearing loyalty to a leader. Article VI required that American Officers thereafter swear loyalty to our basic law, the Constitution… Our American Code of Military Obedience requires that, should orders and the law ever conflict, our officers must obey the law…This nation must have military leaders of principle and integrity so strong that their oaths to support and defend the Constitution will unfailingly govern their actions.”
“Loyalty to the Constitution” plaque located on the grounds of the United States Military Academy

Every military servicemember’s oath is a pledge to defend the Constitution against all enemies, foreign and domestic.

It is not an oath to a politician. It is not an oath to a party. And it is not an oath to the police state.

Yet what happens when those same men and women are being told—by their own government—that obedience to power and loyalty to a political leader come before allegiance to the Constitution they swore to uphold?

That question isn’t hypothetical.

It is the moral line now being tested in real time, and it goes to the heart of what kind of country we are: do we live in a constitutional republic governed by the rule of law, or in a militarized police state where “legality” is whatever the person with the most power and the biggest army say it is?

The answer becomes painfully clear when you look at what our troops are being ordered to do—and what “we the people” are tacitly allowing them to be ordered to do—in the so-called name of national security.

Members of the military are now being deployed domestically to police their fellow American citizens in ways that trample the spirit, if not the letter, of the Posse Comitatus Act.

It’s legally dubious enough that the military is being used to enforce immigration crackdowns and police protests in American cities. But now they’re being tasked with killing civilians far from any declared battlefield in the absence of an imminent threat—all while being told that questioning the legality of those missions is itself a form of disloyalty.

So, which is it: obedience to the Constitution or the Commander-in-Chief?

At the center of this latest maelstrom is a report that Defense Secretary Pete Hegseth issued a verbal order to “kill everybody” on a maritime vessel in the Caribbean that was suspected of transporting drugs.

According to multiple accounts, after an initial “lethal, kinetic” strike disabled the vessel and killed nine men on board, a second strike was carried out to kill two survivors clinging to the wreckage—an alleged “double tap strike” that legal experts warn could constitute murder or a war crime if the survivors no longer posed a threat.

In all, the boat was reportedly hit four times: twice to kill the eleven occupants on board and twice more to sink the boat.

Intentionally killing survivors clinging to the remains of a boat in the middle of the ocean, in the absence of an imminent threat, whether or not the U.S. is engaged in “armed conflict” with drug cartels, is unlawful.

Murder on the high seas is a crime.

Even the Pentagon’s manual on the law of war says combatants who are “wounded, sick, or shipwrecked” no longer pose a threat and should not be attacked.

Some Republicans who have, until now, turned a blind eye to the Trump administration’s most egregious offenses against the Constitution appear reluctant to let this one slide.

Not surprisingly, the Trump administration has done an about-face.

Hegseth—who bragged about watching the September 2 strike live—now claims he wasn’t in the room when the second strike happened.

Suddenly, the White House—which had been gleefully chest-thumping over its power to kill extrajudicially—is signaling its willingness to scapegoat subordinates in the chain of command.

The man with his head on the chopping block is Adm. Frank M. “Mitch” Bradley.

Clearly, it’s a lesson learned too late: when you’re dealing with power-hungry authoritarians, loyalty is no guarantee of protection. It’s always the men and women who carry out the unlawful orders—not the ones who give them—who end up paying the price.

Here’s the problem, though. While the media fixates on who will bear the blame for ordering the double-tap strike, the government war machine is moving forward, full steam ahead.

The Sept. 2 boat strike was part of a broader Trump administration campaign of maritime attacks that has already killed at least 80 people at sea, all without a formal declaration of war or due process—evidence of who they were or what they had done—to warrant an extrajudicial execution.

This is yet another of Trump’s everywhere, endless wars—this time at sea—sold as toughness on “narco-terrorists” at a moment when his poll numbers are slipping, economic promises have failed to manifest, and new Epstein-related revelations continue to surface.

When presidents manufacture new fronts in a forever war whenever they need a distraction, we should all beware.

The Trump administration has tried to frame this preemptive maritime war on suspected “narco-terrorists” as a “non-international armed conflict” with designated terrorist organizations.

Yet what it amounts to is an undeclared war, launched in international waters, without just cause and without congressional authorization.

The legal landscape is not murky—it is clear.

Most of the public debate has revolved around those technical legalities—what kind of conflict this is, which statutes apply, which court might have jurisdiction—yet what is really at stake is whether we are training a generation of American troops to believe that loyalty to a leader can excuse disobedience to, or even override, the Constitution.

Three bodies of law converge here: the Constitution’s allocation of war powers, the international law of armed conflict, and the Uniform Code of Military Justice.

First, there has been no declaration of war by Congress. Under the Constitution, only Congress can declare war. The president cannot start wars based solely on his own authority.

Second, the law of armed conflict and the law of the sea forbid killing shipwrecked survivors who pose no immediate threat.

Third, the Uniform Code of Military Justice requires every servicemember to refuse manifestly unlawful orders.

A command to “kill everybody” is precisely the kind of order these guardrails were written to forbid.

The rationale that “I was just following orders” is not a defense to war crimes. That is the core lesson of the Nuremberg Trials and the modern law of armed conflict.

Of course, the police state wants mindless automatons who obey unquestioningly.

Reporting on the trial of Nazi bureaucrat Adolf Eichmann for the New Yorker in 1963, Hannah Arendt explained, “The essence of totalitarian government, and perhaps the nature of every bureaucracy, is to make functionaries and mere cogs in the administrative machinery out of men, and thus to dehumanize them.”

Arendt, a Holocaust survivor, denounced Eichmann, a senior officer who organized Hitler’s death camps, for being a bureaucrat who unquestioningly carried out orders that were immoral, inhumane and evil. This, Arendt concluded, was the banality of evil, the ability to engage in wrongdoing or turn a blind eye to it, without taking any responsibility for your actions or inactions.

Coincidentally, the same year that Arendt’s book Eichmann in Jerusalem: A Report on the Banality of Evil was published, Martin Luther King Jr. penned his “Letter from a Birmingham Jail,” in which he points out “that everything Adolf Hitler did in Germany was ‘legal’ and everything the Hungarian freedom fighters did in Hungary was ‘illegal.’ It was ‘illegal’ to aid and comfort a Jew in Hitler’s Germany.”

In other words, there comes a time when law and order are in direct opposition to justice.

Every military recruit is supposed to learn in basic training that there is a duty to obey lawful orders, and an equal duty to disobey manifestly unlawful orders.

No president—Republican or Democrat—can override that principle.

The Commander-in-Chief may issue orders, but he does not get to erase the Constitution or rewrite the laws of war by fiat.

The White House rationale—that a preemptive “kill everybody” attack “was conducted in self-defense to protect US interests”—should terrify every American.

If the government can redefine “self-defense” to justify killing incapacitated survivors on a sinking boat, then it can justify killing anyone—at home or abroad, in uniform or out of it.

No matter how the White House spins it, however, these are crimes and those involved—from Hegseth on down—could find themselves in legal jeopardy and should be held accountable.

The pressure on the military is mounting.

The Orders Project, a nonpartisan initiative that helps connect servicemembers with outside legal counsel, reports a spike in calls from military personnel concerned that they could be asked to carry out an illegal order or pressured to take part in missions that violate their training in the laws of war.

Given Hegseth’s much-publicized approach to waging war without constraints—he has openly derided the military’s Judge Advocate General corps and championed a more “unshackled” approach to lethal force—these concerns are reasonable.

Indeed, there has been enough cause for concern that six members of Congress, all with military or national security backgrounds, recorded a message reminding servicemembers what the law requires: “Our laws are clear. You can refuse illegal orders…you must refuse illegal orders. No one has to carry out orders that violate the law or our constitution.”

For re-stating what every recruit is taught in basic training, these lawmakers have been accused by President Trump of “sedition” and branded as “traitors” who should be arrested and punished by death. The FBI has reportedly opened an investigation. Hegseth has even threatened to recall one of the lawmakers—Senator Mark Kelly, a retired Navy captain—to active duty in order to court-martial him for his remarks.

The message from the top could not be clearer: allegiance to the Constitution is a crime.

Every person like myself who has served in uniform has experienced the tension between following orders and honoring that oath. Discipline requires obedience, but a constitutional republic requires lawful obedience.

That is why the oath matters.

It is not an oath to a man, a party, or a policy agenda. It is an oath to a charter of law: the Constitution.

At West Point, a 1943 “Loyalty to the Constitution” plaque proclaims: “should orders and the law ever conflict, our officers must obey the law.”

That principle is not antiquated. It is the foundation of American civil-military relations. Remove it, and what remains is not a republic but a personality cult with weapons.

The danger becomes even clearer when you examine the rhetoric now shaping national policy.

For instance, Homeland Security Secretary Kristi Noem recently urged the president to impose “a full travel ban on every damn country that’s been flooding our nation with killers, leeches, and entitlement junkies.”

A harsher irony is hard to find.

A good case could be made that it is, in fact, the U.S. government that is flooding our nation with killers, leeches, and entitlement junkies. Just consider Trump’s steady spate of presidential pardons, the latest to Juan Orlando Hernández, the former president of Honduras, who had been sentenced to 45 years in prison for conspiring with drug traffickers to move cocaine into the U.S.

According to U.S. prosecutors, Hernández—quoted as saying he wanted to “shove the drugs right up the noses of the gringos by flooding the United States with cocaine”—took bribes from drug traffickers and had the country’s armed forces protect a cocaine laboratory and shipments to the U.S.

So the president is blowing up boats in the Caribbean he claims—without proof—are ferrying drugs all the while pardoning someone who was convicted of conspiring to transport hundreds of tons of cocaine into the U.S.

This corrupt double standard has become business as usual for the Trump administration.

Now Trump wants to launch land attacks on Venezuela, a country that is conveniently richer in oil reserves than Iraq—all in the so-called name of fighting the war on drugs.

The rapid buildup of U.S. military forces in the Caribbean—which according to news reports includes a range of aircraft carriers, guided-missile destroyers, and amphibious assault ships capable of landing thousands of troops, as well as a nuclear-powered submarine and spy planes—far exceeds what would be needed for a supposed counternarcotics operation and is worrisome enough on its own.

Yet conscripting the military to do the dirty work of the police state—and then throwing them under the bus for doing so—takes us into even darker territory.

The U.S. government’s weaponization of the armed forces for political power is a betrayal of the Constitution, but it is also a betrayal of the very men and women who swore to give their lives for it.

This has never been about public safety.

As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, this has always been about power—who wields it, who is protected by it, and who is crushed under it.

And once a government shows a willingness to break faith with its defenders, it will break faith with anyone.

A government that can discard its military service members can discard its whistleblowers and truth-tellers who expose corruption.

A government that can discard its military service members can discard its journalists, judges, and watchdogs in the press and the courts who insist on transparency and limits to power.

A government that can discard its military service members can discard its political opponents and dissidents, its religious and racial minorities, its immigrants and asylum seekers, its small business owners and workers who organize, its parents and community members who speak up locally, and any citizen who dares to say “no” when the state demands “yes.”

This betrayal of those who swore an oath to the Constitution is not an accident—it is a warning.

Originally published via The Rutherford Institute

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at [email protected]. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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