Pentagon Debates What To Do About Illegal Orders From Cadet Bone Spurs
Here's something to keep you up at night.
When cooking up an authoritarian stew, unpredictability is a key ingredient. Nobody knows what the fuck That Man will actually do once he gets into office in a week, maybe not even him. But the Pentagon has been trying to game out every possibility.
What a goulash of contradictory mutterings! On the campaign trail and in his victory speech: “I’m not going to start wars, I’m going to stop wars.” But, and, now he’s also said he won’t rule out using the military to take over allies Panama, or Greenland.
And, he’s also vowed to use the military to deploy troops for mass deportations after declaring a “national emergency.” AND, he’s talked about using the Insurrection Act and Posse Comitatus Act to use the military to go after domestic “enemies from within,” like journalists, Democrats, and Liz Cheney, musing that "radical left lunatics" should be “very easily handled by, if necessary, by National Guard, or if really necessary, by the military, because they can’t let that happen.”
Handled very easily, maybe not. The Posse Comitatus Act of 1878 generally prohibits the military from being used as a domestic police force, and using the military to shoot American citizens would be an illegal order. But there are big loopholes: the Insurrection Act allows the president to deploy the military domestically under certain circumstances, and there’s seemingly no place for Congress or courts to intervene if he does, even if he decides to call up the National Guard for something plainly illegal like busting down every door looking for undocumented immigrants. And the Supreme Court has already said that anything he does is legal, by virtue of his office.
National Guard troops are in principle under the command and control of a state’s governor, or under the command of the president in DC. But they’re paid from federal money, and can also be called up in “support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” A governor is not obligated to acquiesce to that request. But, some governors would, leaving open the real possibility that, say, National Guard troops under the control of governor Glenn Youngkin of Virginia would agree to a request from Trump and SecDef Pete Hegseth to invade Maryland, and start a very real Civil War, 1861-style. That would not be technically illegal, and then what entity would stop it? Does the Pentagon have a plan for that? Let’s hope so!
So what would be the review process if That Man orders the National Guard to open fire on protestors, as he was slobbering to do in DC during the protests over the murder of George Floyd? Who would conduct the review of the lawfulness of that order? The military has lawyers for this sort of thing, but lawyers don’t have the authority to demand anything. And does breaking the law even matter anymore, with a commander-in-chief who is a felon?
Who would be the person give the order to disobey the order from the commander-in-chief? Certainly not Hegseth, should he be confirmed. Hegseth, who as Democratic Senator Tammy Duckworth points out has managed fewer people than the manager of “the average Applebee’s,” has also been hot and horny to bring about a purge of the disloyal within the military and itching to start a civil war. From his book American Crusade: “The military and police, both bastions of freedom-loving patriots, will be forced to make a choice. It will not be good. Yes, there will be some form of civil war.”
Using the military for mass deportations would also be a big fucking problem, even if the target is not technically US citizens. The military is trained to pew pew pew at foreign enemies. It is not trained to keep domestic order, or to go door-to-door pulling undocumented abuelas out of their beds to go to camps and await deportation. This would involve a whole different rulebook, and training that the military doesn’t have. During the Senate hearing on mass deportations last month, retired General Randy Manner helpfully summarized some of the many other problems: you’re going to have a hard time recruiting for the military if the job description starts to encompass terrorizing one’s neighbors. You’ll have a tough time protecting the US from foreign adversaries if all of the soldiers are busy domestically trying to hunt down every person who overstayed a visa.
So what could the military do to resist these orders that are illegal, but maybe also legal, because they are coming from the commander-in-chief? (A commander-in-chief who also would not be eligible to join the military because he is a felon, by the way.)
The military is already quietly debating these questions, but the answers are not as settled as those of us who like to sleep at night would prefer. Military officers are already obligated to not follow illegal orders to “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” That would presumably apply even if the enemy of the Constitution is the commander-in-chief himself, and/or greasy Pete Hegseth, but things sure could get murky. There’s 1.3 million active military members, so there’s not going to be any such thing as an internal consensus on how to handle these kinds of questions. Hegseth would like to toss out all disloyalists from the military, but even the secretary of Defense couldn’t just up and dismiss half of the military.
Military.com also reached out to Pentagon officials to ask what might happen if the military gets an illegal order, and the response was not reassuring, summed up as: “a landscape where few concrete legal protections exist to prevent an abuse of power by a president.”
Pentagon spokesman Maj. Gen. Pat Ryder emailed Military.com a statement that “lawyers are available to advise military leaders — including the secretary of defense, the chairman of the Joint Chiefs of Staff, and combatant commanders — regarding the legal and prudential impacts of orders, as well as the legal effects and consequences such orders may have.”
But, again, nobody’s under any kind of obligation to take the lawyers’ advice, the Supreme Court has made clear that no laws apply to the President, and even having Seal Team Six assassinate Liz Cheney in her bed would be legal.
This is all setting up to be a real civil war inside the military, and hopefully not on on the streets, too, again. It’s fucking scary, man.
[Politico archive link / Military dot com / Brennan Center for Justice ]
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The Pentagon pays people to sit in a room, game out every possible scenario, and file a report. They’ve had action plans on what to do during climate-change-related unrest since the 1970s.
If they don’t have a plan to contain this needy pipsqueak, they don’t deserve to be in those jobs.
“lawyers are available to advise military leaders — including the secretary of defense, the chairman of the Joint Chiefs of Staff, and combatant commanders — regarding the legal and prudential impacts of orders, as well as the legal effects and consequences such orders may have.”
John Yoo is tanned, rested, and ready.