The supposed “fallout” from a number of Democratic leaders who reminded troops that they are not bound to follow illegal orders is as loud as it is ridiculous.
After six Democratic lawmakers released a video with their legally correct, sound advice, Trump and his minions began embarrassing themselves by wrongly proclaiming that the Democrats’ reminder to follow the constitution, military law and legally-recognized human rights is somehow “sedition.”
Some in and around the corporate media have claimed that Trump’s fallacy is a ‘complicated, unsure legal matter’. That is patently false.
The truth is that military personnel have a legal duty to refuse any order that clearly breaks the law, according to the Uniform Code of Military Justice (UCMJ). Since the U.S. is a nation of laws, rights and a constitution, the only crime is in the issuance of the illegal command. In fact, the person who issued the command may be charged for the action under the UCMJ. The soldier who obeys a clearly illegal order may also be charged with a crime.
U.S. troops in basic training are even instructed that soldiers are legally bound to refuse a clearly illegal order, under penalty of military law.
Article 92 of the UCMJ describes what constitutes unlawful orders:
“Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, [contrary to]the laws of the United States or [to] lawful superior orders, or for some other reason is beyond the authority of the official issuing it [Emphasis added].”
Examples of soldiers who suffered court-martial for following illegal orders include:
- The My Lai Massacre
- Abu Ghraib Prison Torture
- The 2012 Quran (Koran) Burnings.
There is only one caveat: The refused order must be “manifestly illegal.” In other words, its criminality must be obvious and clear. According to the law office of Peter Kageleiry, such examples might include:
- Orders to falsify official documents
- Orders to commit such crimes as assault or theft
- Orders to attack civilians
And, Mr. Kageleiry is quick to add that most deployment orders aren’t “obviously” illegal the moment they are received. In cases where the legality of an order is merely suspected and less than obvious, Kageleiry declares that a soldier should “seek legal from a Judge Advocate before taking [a] unilateral action.”
To create his current distortion of reality, Trump and his accomplices are employing the logical fallacy of the argumentum ad absurdum – an initially sound argument made illogical and false by maintaining it to the point of absurdity. In English, it’s an argument driven to absurd extremes.
A classic rhetorical case might be a parent who says, “I’m going to make sure no one ever hurts my child by killing her tonight.” The parent’s stated plan to murder his or her own offspring is itself a terrible violence – the child is obviously not saved from danger by this plan. Thus the plan is a fallacy, since the outcome destroys the stated intention of the act.
So when a quack politician says, “Anyone who tells a soldier that he or she doesn’t have to follow my illegal order that tramples on the U.S. Constitution, established laws and the legally-recognized rights of our citizens obviously is out to destroy … the U.S. Constitution, established laws and the legally-recognized rights of our citizens.”
The argument is obviously absurd. Clearly the person wanting to destroy these things is the one claiming a right to destroy them. Those who respond that no one has a right to destroy these things and that they have legal protections, is obviously not working to destroy them and their legal protections.
You are what you do. You are not the opposite of what you do.
In democracies, laws and human rights are the essence of the nation. Soldiers are bound to those laws, and to the people they work to protect. Only in tyrannies are soldiers personally bound to a politician, or to a general, at the expense of established laws and rights. The move to serving a person rather than the people or their laws is precisely how the Roman Republic fell, and become a tyranny.
Let’s not go the way of ancient dictatorships. Abe Lincoln stated the point in 1838:
At what point then is the approach of danger to be expected? I answer, if it ever reach us, it must spring up amongst us. It cannot come from abroad. If destruction be our lot, we must ourselves be its author and finisher. As a nation of freemen, we must live through all time, or die by suicide.
