What Happened? |
A grand jury declined to bring charges against six Congressional Democrats who prosecutors wanted charged for telling members of the U.S. military to disobey illegal orders. |
The Justice Department had sought to charge the lawmakers under a criminal statute known as 18 U.S.C. § 2387, which criminalizes anyone who 'advises, counsels, urges, or in any manner causes or attempts to cause insubordination, or refusal of duty by any member of the military.' |
The failed indictment stemmed from a 90-second video in which the six Democrats, all of whom are military veterans or former intelligence community members, advised military personnel that they 'must refuse illegal orders.' |
Why it Matters |
What prompted the Democratic lawmakers to post the video urging military members not to obey illegal orders was a series of drone strikes on alleged drug trafficking vessels in the Caribbean. Several other members of Congress, including Republican Senator Rand Paul, have publicly questioned the legality of those boat strikes. |
The failure of the grand jury to issue an indictment is a major embarrassment for the Trump Administration, but Congressional Democrats characterized the decision as a victory for the rule of law. |
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While the President of the United States is the commander in chief of the armed forces, there are limits on presidential authority with respect to military matters. For example, only Congress has the power to declare war, which is clearly stated in the U.S. Constitution. |
The War Powers Act, passed in 1973, requires the President to seek Congressional approval for the deployment of U.S. troops abroad or withdraw them within ninety days unless Congress declares war. |
The conduct of military members is governed by the UCMJ, which is the Uniform Code of Military Justice. The UCMJ itself stipulates that military members are legally required to refuse unlawful orders. |
Those provisions in the UCMJ reflect a desire by Americans to prevent members of the U.S. military from committing the types of atrocities other militaries have engaged in, especially the armed forces of Nazi Germany during World War Two. Under the American system, at no point does authority supersede morality. |
Given the provisions in the UCMJ requiring military members to refuse illegal orders, the question always becomes who decides which orders are illegal and on what basis? |
While enlisted members swear an oath of obedience to the President, officers take an oath of loyalty to the Constitution, not to any one person. Because of that difference, it generally falls to officers to determine the legality of orders, and they receive extensive training on the law of armed conflict. |
How it Affects You |
The Trump Administration brought charges because they believed the actions of the Democratic lawmakers violated law and undermined Presidential authority. But as the grand jury decision illustrated, no laws were broken. |
Military members are capable of listening to political arguments without it affecting their duties. The idea that members of the U.S. military might stop performing their duties because of one video vastly underestimates the average American warfighter. |
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