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Can the Military Refuse a Presidential Order to Occupy American Streets?

Close up of military uniform with painted rustic boards of USA flag in background.
By Richard Dahl on June 25, 2020 7:49 AM

President Trump has threatened to send the federal military into the streets of American cities when protests turn violent. If he issues such an order, can the military refuse to follow it?

First, some background:

On June 1, Trump suggested that he could employ a 213-year-old law, the Insurrection Act, as a basis to send in troops. That proposal was criticized by legal experts and historians as unwarranted — at least in this case.

Basically, these experts say that the law might be used when a situation is dire enough, but that the recent wave of protests doesn't rise to that level. The last time it was used was in 1992, when President George H.W. Bush sent federal troops to Los Angeles at Governor Pete Wilson's request to help quell rioting that erupted after four police officers charged in the beating of Rodney King were acquitted. In that case, it's important to note that the governor requested the aid — one of the requirements for using the Insurrection Act.

History and the Insurrection Act

In Texas A&M Today, law professor Lynne Rambo said that a president could conceivably order troops to a city on the grounds that he is seeking to protect the rights of property owners. However, she said, "(H)e would also have to be prepared to say that the states were refusing or failing to protect the rights of those owners, a rather controversial declaration."

As was the case with the Los Angeles riots, a president can invoke the Insurrection Act if a state requests it. He can also do it if there is a threat of a federal law being broken. Presidents Dwight D. Eisenhower and John F. Kennedy both used it in several southern states when schools defied federal law by refusing to desegregate.

The Right to Disobey

Back to the original question: Can the military refuse an order from the commander-in-chief to occupy American streets and use force, if necessary, against American citizens?

Writing in the academic website The Conversation, former Naval officers Marcus Hedahl and Bradley Jay Strawser say the answer is yes. The oath sworn by all members of the military is to defend and support the Constitution, not necessarily the commander-in-chief, say Hedahl and Strawser, who now teach philosophy at the U.S. Naval Academy and the Naval Postgraduate School.

"We often discuss with our classes the fact that military members are not duty-bound to follow illegal orders," they wrote. "In fact, they are expected, and sometimes legally required, to refuse to obey them."

It's informally called a "duty to disobey," and the Uniform Military Code of Justice speaks to it in Articles 90 and 92, which both deal with obligations to follow orders. While the Code is more concerned about the need to obey orders, it specifies that orders must be “lawful." If they're not, presumably, that leaves room for refusal.

Analyzing these sections, Retired Air Force First Sergeant Rod Powers explains that orders are always assumed to be lawful, except when they are “contrary to the constitution" or “laws of the United States," or are “patently illegal, … such as one that directs the commission of a crime."

The Calley Trial

One of the most famous cases involving an obligation to disobey is that of U.S. Army Lt. William Calley, who defended himself against murder charges following the My Lai massacre in Vietnam by saying he was just following orders. That argument is known as the “Nuremberg defense," which derives its name from the post-World War II Nuremberg Trials of Nazi war criminals, where defendants said they were just following orders.

The Nuremberg Tribunal rejected that argument and adopted a principle that adherence to criminal orders is not defensible. Applying that standard to Calley, an officer making decisions in the field during wartime—not a higher-ranking policymaker—was an unprecedented strict interpretation in the U.S. When he was sentenced to life imprisonment, polls showed that the majority of Americans considered the verdict too tough. His sentence was reduced on appeal to 20 years and then 10 years; then, 3 1/2 years into the 10-year sentence he was paroled.

But the message from the Calley trial remains clear. It's important that members of the military be diligent in following orders from their superiors. But when there's clear evidence that following an order violates their oath to the Constitution, they do have the right of refusal.

So if a president orders troops to occupy an American city, it is within the military's right to say no.

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