The Better Way To Stop Illegal Orders Is To Prosecute Those Who Give Them

A brouhaha between Democratic elected veterans and the administration highlights the need for a different approach.

Photo by Diego González on Unsplash

Earlier this month, a group of Democratic elected officials, all of them military or intelligence veterans, recorded a video urging members of the military to disobey illegal orders. They were referring largely to the deployment of the military in U.S. cities, but one of the electeds, Colorado’s Jason Crow, has been adamantly against strikes against suspected drug smugglers.

What the lawmakers said shouldn’t be controversial. The U.S. military has a robust set of laws it operates under; you have no obligation to follow an illegal order.

But the backlash from the Trump administration has been severe. President Trump took to social media to imply that the lawmakers were committing sedition or treason; there are now burgeoning efforts to have the FBI interview the lawmakers ahead of possible prosecution.

All of this is legally ridiculous, of course. Simply restating the law isn’t treason and it isn’t sedition.

This came days before the Washington Post reported that the Secretary of Defense (I’m sorry, the Secretary of War) ordered Navy SEALs to finish killing off a group of sailors who the government suspected were carrying drugs; the initial aerial strike did not kill the group and Hegseth wanted them eliminated.

If you ask any group of military lawyers about this, they’d say at the very least it was legally suspect; at the most, it means Hegseth was ordering those men to commit a crime. Given that there is no actual declared war between suspected drug smugglers and the U.S. military, it wouldn’t even be a war crime — it might just be murder.

Democratic officials can certainly continue to make videos about why this is all problematic. But there’s a better and easier way to put an end to all of the summary executions happening in the oceans and any other abuses at every level of the Trump administration.

The Democratic Party can simply make clear that it believes in the rule of law. And there is no rule of law without accountability. Democrats in Congress can promise to fully investigate any possible violations of the law; presidential contenders can promise to appoint people to the Department of Justice who believe that nobody is above the law.

This could mean that Hegseth or even Trump will one day be prosecuted for ordering these crimes. It’s rare that anyone other than ground-level grunts — think, the soldiers at Abu Ghraib — are ever prosecuted for war crimes. Trump himself seems to have completely dodged most of his criminal cases.

But fundamentally these Trump officials are self-interested. If they think there’s a serious chance that they will be in legal trouble or end up behind bars, I imagine you’ll start seeing much more cautious use of the U.S. military, a tool that should be used as a last resort against lethal enemies, not as a first resort to soothe the ego of a nihilistic cabinet secretary.