The Bill of Rights for Soldiers

[Thiệu Ngô]

Six members of Congress gave us an example of the way to stand up to a tyrant on Tuesday. Each of them is under special guard by Capitol Police because of threats to their lives by MAGA followers of Donald Trump.

By Lucian K. Truscott IV

What you have to understand about the military is that it functions as a nearly absolute autocracy within the democracy that governs the rest of the country. There are many rights that you simply don’t have if you are in the Army, Navy, Air Force, Marines, or Coast Guard. You don’t have the right to go to bed when you please. If your commander says “lights out” at 11 p.m., that means lights in the barracks are turned off. If your commander says no personal electronic devices like cell phones while on duty, then you can’t look at or even carry a cell phone while you’re working.

Most famously, if a commander says reveille is at 5 a.m., that’s when the bugle blows and your feet must hit the floor. You don’t get to sleep in if you had a long night and you’re tired. Orders are orders. Get up and get moving, soldier!

In war, the window of a soldier’s rights narrows considerably. If you are ordered by a platoon leader to dig a hole and get in it and defend the perimeter of the unit’s position, you must get your entrenching tool—a small shovel—dig your hole, use it for cover, and engage the enemy if your platoon’s position is attacked. If you’re ordered to charge a position held by the enemy and shoot to kill, you are obligated under the UCMJ, the Uniform Code of Military Justice, to follow an order that may cause you to take the life of another human being.

The UCMJ is a code of laws that governs the behavior of members of the military while they are on active duty, defining behavior that is allowable and what is not permitted and outlining punishments for violating military regulations and the laws of the UCMJ itself.

The UCMJ cuts both ways, however. Included in the military code of justice is the law that says members of the military have a duty to obey all lawful orders, but they also have a duty not to obey orders that are illegal, unconstitutional, or otherwise criminal in nature. A common example of an illegal order that soldiers have a duty not to follow is being ordered to mistreat or kill a prisoner of war. Being ordered to mistreat or hurt or haze or kill another soldier would be similarly illegal, and service members would be obligated not to follow such an order.

The reason this issue has arisen is because six members of Congress who are either military veterans or served in national security positions such as the CIA released a video on Tuesday urging service members on active duty, in the reserve, or the National Guard not to follow illegal orders. The members of Congress did not specify which illegal orders that military members must refuse to obey. Instead, they made the point that the Trump administration is pitting the military against the American public on the streets of this country with its military deployments to cities, in violation of the Constitution, according to some recent court decisions.

Reports noted that some National Guard soldiers deployed to cities such as Washington D.C. and Memphis are armed, raising the possibility that soldiers may at some point be ordered to shoot protesters or others. Some reports included the fact that the military has been engaged in rocketing and sinking boats that are alleged by the Trump administration to be smuggling drugs to the United States. Some experts in military and international law have held that the attacks on boats in the Caribbean and Pacific Ocean are illegal under the laws of the sea and international laws regarding armed conflicts. The Pentagon responded to this criticism with a legal opinion that the attacks on alleged “drug boats” are legal in that President Trump has declared them to be “narco-terrorists” engaged in an attack on the U.S. by shipping deadly drugs to our shores.

Trump flew into a nearly incoherent rage on Thursday calling the members of Congress in the video “traitors” who are engaging in “sedition” and “should be put to death” or “hanged.”

I’ll just note here for the record that what the members of Congress said in the video was a distillation of what is written in the UCMJ about the duty of soldiers and other members of the military to refuse illegal orders. So, Donald Trump was calling for members of Congress to be put to death for not only following the law but insisting on the obligation of members of the military to follow the law, as well.

The part of the UCMJ that obligates members of the military to refuse illegal orders is their Bill of Rights. Soldiers don’t have a right to refuse orders that are stupid, such as being ordered to pick up trash in the hot sun of a summer day and make their beds to a certain and seemingly irrational standard or face punishment. But members of the military have not only the right, but the duty, to refuse to follow illegal orders such as those I have already discussed. Among them might be what Trump asked of the Pentagon Chief of Staff, General Mark Milley, about protesters outside the White House in the summer of 2020: “Can’t you just shoot them, just shoot them in the legs or something?”

Shooting unarmed protesters exercising their First Amendment right to petition the government for redress of grievances is illegal, so if Trump had framed his idea as an order rather than a question, that order would have been illegal. Framed as a suggestion, advocating shooting unarmed protesters could be seen as committing assault, a felony under civilian law, and I am certain is illegal under the UCMJ as well.

Donald Trump is the person committing illegal acts by suggesting that protesters be shot, or that members of Congress should be put to death. By declaring that presidential acts are perforce legal, the Supreme Court, in Trump v. United States, insulated Donald Trump and future presidents from prosecution for making statements or giving orders that would break laws that others, including the military, are compelled to follow.

Shooting unarmed protesters exercising their First Amendment right to petition the government for redress of grievances is illegal, so if Trump had framed his idea as an order rather than a question, that order would have been illegal. Framed as a suggestion, advocating shooting unarmed protesters could be seen as committing assault, a felony under civilian law, and I am certain is illegal under the UCMJ as well.

Donald Trump is the person committing illegal acts by suggesting that protesters be shot, or that members of Congress should be put to death. By declaring that presidential acts are perforce legal, the Supreme Court, in Trump v. United States, insulated Donald Trump and future presidents from prosecution for making statements or giving orders that would break laws that others, including the military, are compelled to follow.

Members of the military are given orders every day that verge on or are actually illegal. Superior commanders regularly tell subordinate commanders to punish individuals for doing things that are not illegal, or that are illegal but for which there is no evidence or due process of law. Subordinate commanders must then decide how willing they are to fight their superior officer over the illegal order by refusing to carry it out, knowing that the superior can easily torpedo their careers with a bad personnel report or a lie to their own superior officer about the disloyalty of the subordinate.

It is generally not a good idea, career-wise, to refuse illegal orders. It’s a better idea to find a way around them, which soldiers are often compelled to become expert at doing. But sometimes you don’t have a choice. An example from my own, very brief, Army career is when a superior officer told me to stop signing up members of my platoon who had families for food stamps. It was legal for soldiers to receive food stamps. They qualified because of their very low pay, which put many of them below the federal poverty line. I refused that order and continued to sign up my soldiers who needed food stamps to feed their families. This did not sit well with my commanding officer, who proceeded to give me a score of 69 out of a possible 100 on my “Officer Efficiency Report,” the measure by which promotions were decided. I was not promoted to First Lieutenant. Knowing there was no way for me to “win” the Catch 22 over the decision not to follow illegal orders, and under charges for other “crimes” I faced, I chose not to fight when administrative discharge proceedings were brought against me.

A lot of very bad water has passed under a lot of creaking, dangerous bridges since those days. Two wars, Vietnam and Iraq, were ordered illegally based on lies. The war in Afghanistan was ordered legitimately but fought in frequently illegitimate ways for 20 very long years.

And now we have a president who never served in the military, who avoided serving by lying about “bone spurs” to get out of the draft, signing executive orders that are often illegal and ordering the illegal firing of those who question his orders.

This country has seen worse, but not for a very, very long time: The Civil War began 165 years ago, and we survived that national disaster. We will survive this one, too, but not without casualties on battlefields at home and abroad. The way you beat a tyrant is standing up to his tyranny. Six members of Congress gave us an example of exactly that on Tuesday. Each of them is under special guard by Capitol Police because of threats to their lives by MAGA followers of Donald Trump.

We will stand with them and fight against tyranny with them, and there is a lot of fighting we must do with our votes and our bodies.

No Kings Forever!