by Christopher Fonzone, Partner, Privacy and Cybersecurity Group, Sidley Austin
*This piece was cross-published at Just Security.
A proposal to bring back waterboarding and a “hell of a lot worse.” The possible suggestion that members of the military should intentionally target terrorists’ civilian family members. A threat to rain “fire and fury” on North Korea. With comments like these, President Trump has turned the responsibility of members of the military to obey superior orders – long an object of study for scholars of military law – into the subject of popular headlines and editorials. What happens, commentators have asked, “if President Trump orders Secretary of Defense Mattis to do something deeply unwise?” Would the military actually carry out such orders?
Much has been written, of course, on these important questions, which almost inevitably arise in extremely difficult situations. In order to provide those interested with the basics of what the law requires in such situations, I recently wrote an American Constitution Society Issue Brief entitled What the Military Law of Obedience Does (and Doesn’t) Do. This body of law, which has roots that date back to antiquity, makes clear that members of the military have a dual obligation to both obey “lawful” orders and disobey “manifestly” or “patently” illegal ones. As I argue in the Issue Brief, this means, in practice, that service members must refuse to transgress clear and well-known legal rules, but that commentators should not expect military disobedience to save the Nation from simply unwise or legally contested orders.