Governing Military Norm-Defiance in a Norm-Defying Presidency

If a future U.S. president were to order a nuclear attack on a target—during an ongoing armed conflict, as a preemptive self-defense action, or as a stand-alone offensive use of force—and the senior military officer in command of the U.S. nuclear arsenal or in the position to transmit those orders at the Pentagon’s National Military Command Center refused, would that officer have violated the Uniform Code of Military Justice (UCMJ)? Might that officer might be court-martialed, labeled a federal felon, and subject to a prison sentence? The president has no domestic legal constraint on his constitutional Article II power to use this type of force, and arguably very little regulation under international law. It would be, even if nothing else, a lawful order. 

A previous piece in Lawfare explained the military’s law on disobedience in the context of an official but unlawful order from the president (such as using SEAL Team 6 to kill a domestic political rival or launch a coup). This piece describes the limited ways in which the military’s own criminal justice system is equipped to address a very specific—but very foreseeable—question: Does a senior service member violate the UCMJ by disobeying a direct lawful order from one of the two superior civilian officials atop the military’s chain-of-command—the president and the secretary of defense?

The Duty to Obey and the Right to Disobey 

The public perception of a rigidly hierarchical military obeying orders mechanistically from the national command authority during war is a well-entrenched portrayal. Within the military profession, however, the issue of following orders is considerably more nuanced.

A situation in which a service member has reason to disobey an order is not uncommon and, under some circumstances, expected. In fact, the military justice system provides an affirmative defense to what normally would be the crime of disobeying orders. Rule for Courts-Martial 916(d) states that acting “pursuant to orders” is a legitimate defense against charged misconduct, “unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (emphasis added). This means, in practice, an affirmative duty to obey only lawful orders. Rule 916(d) precludes a “just following orders” defense when charged with, for example, killing unarmed prisoners of war—an offense all service members are trained to know violates the laws of war (in this case, a grave breach of the Third Geneva Convention).

But this duty and its corollary affirmative defense are severely qualified. There is a cliché in the armed forces: The “military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral.” Even military leadership doctrine promotes this: “Army forces reject and report illegal, unethical, or immoral orders or actions.” But this is only partially true. An order could be unlawful, unethical, and immoral all in one. In such a case, however, the only legally permissible grounds for disobeying it is the order’s illegality, not its unmooring from ethics and morals. An order could therefore be lawful, but still unethical or immoral. In such a case, there are no legal grounds for disobeying it, though doing so may exemplify “moral courage.” In other words, there is no duty to disobey (and no affirmative defense against) an unethical or immoral command from a civilian authority, as judged by the military recipient of the order.

A military officer has a duty to obey a lawful order from a competent authority, even if it conflicts with one’s personal code of ethics and raises substantial moral questions. But that is the general rule; it turns out that applying it to a specific command from a civilian leader like the president or secretary of defense to a military officer is not straightforward at all.

The Nature of the Order and Who Gives It Matter

Whether a service member violates a UCMJ punitive article by disobeying an order is informed by two basic issues, assuming it is an otherwise “lawful” order.

Form of the Order

The first issue is the form, or mechanism of delivery, of the order; the second issue is the identity of the person who gives the order. If the form or delivery mechanism of the order is that of a direct command specifically aimed at a particular subordinate, it opens the door to two possible “disobedience” crimes under the UCMJ: “[w]illfully disobeying [a] superior commissioned officer” under Article 90 and “fail[ing] to obey” a “lawful order issued by a member of the armed forces” under Article 92(2). Each offense consists of particular elements that each must be proven beyond a reasonable doubt. And each carries different maximum punishments, despite both being crimes of disobedience.

Alternatively, if the form of the order is a generalized order or regulation aimed at governing the conduct of a large class of service members (for example, an order issued by the commanding general of Fort Riley that prohibits soldiers assigned to that installation from visiting designated commercial enterprises deemed unsafe and detrimental to military readiness), or if the disobedience reflects a willful or negligent failure to abide by a nontrivial custom of the service or other duty imposed by a statute, regulation, or standard operating procedure, it opens the door to three possible disobedience offenses: first, “fail[ing] to obey any lawful general order or regulation” under Article 92(1); second, the same “fail[ing] to obey” a “lawful order issued by a member of the armed forces” under Article 92(2) mentioned above; and third (if the breached duty was one imposed by custom, statute, or standard operating procedure, for example), as a dereliction of duty under Article 92(3). Again, despite each of these offenses prohibiting forms of disobedience, they are each constructed around different elements and carry different punitive consequences.

Which Military Official Gives the Order?

The second preliminary issue is the identity of the person giving the order. If the order comes from a “superior commissioned officer” to a subordinate and is in the form of a direct command specifically aimed at a particular subordinate, there is only one possible offense: “[w]illfully disobeying [a] superior commissioned officer” under Article 90. If the order is of that same direct form but is issued by some other member of the armed forces who is not a superior commissioned officer relative to the recipient, then failure to obey it is punishable as an Article 92(2) offense. Alternatively, if the order is a general order or regulation promulgated by a competent civilian authority like the secretary of the Army, by a general court-martial convening authority, or by some other commanding officer, disobeying that order is punishable as an Article 92(1) offense.

It is critical to note the meaningful differences among the necessary conditions for these varieties of disobedience crimes. To prosecute a service member under Article 90, for example, there are several considerations that are not relevant to the other varieties: Such an order from a superior commissioned officer must be directed specifically to a subordinate (see Manual for Courts-Martial [MCM], Part IV, para. 16.c.(2)(b)); the order is presumed lawful (para. 16.c.(2)(a)(i)); the order cannot have been “patently illegal” or known to be illegal by a person of “ordinary sense and understanding” (Rule for Courts-Martial 916(d)); the order must relate to a legitimate military duty (MCM, Part IV, para. 16.c.(2)(a)(iv)); the order must have been within the authority of the superior officer to give (para. 16.c.(2)(a)(iii)); and the order cannot conflict with the statutory or constitutional rights of the recipient (para. 16.c.(2)(a)(v)). The caveat that one’s conscience, religion, or personal philosophy cannot justify or excuse disobedience limits one’s discretion to disobey but concerns only this Article 90 offense (para. 16.c.(2)(a)(iv)).

But such conditions are irrelevant to Article 92(2), as when a direct order to a specific person originates from some member of the armed forces other than a superior commissioned officer. One clear illustration would be a military policeman, in the rank of sergeant, who pulls over a colonel for exceeding the speed limit on a military installation and orders the driving superior commissioned officer to produce his license and registration. In that case, the junior clearly has authority to order a much more senior member of the armed forces (MCM, Part IV, para. 18.c.(2)(c)(ii)). Yet these Article 90 conditions are relevant for a prosecution under Article 92(1), for violation of a general order or regulation widely published and applicable to the armed forces as a whole, a significant subdivision thereof (such as the Department of the Air Force), or a specific unit or organization. And such general orders or regulations have additional conditions beyond those already mentioned: In addition to the conditions imposed in Article 90, the orders at issue in Article 92(1) also cannot be contrary to the Constitution, contrary to the laws of the United States, contrary to lawful superior orders, or beyond the authority of the issuing commander or civilian official (para. 18.c.(1)(c)) (defining the “lawfulness” of that order or regulation); moreover, knowledge of the general order or regulation is not an element of this offense. These conditions on Article 92(1), however, are irrelevant to prosecutions under Articles 90, 92(2), and 92(3).

Orders From Civilian Officials

Given these elements and conditionals, which UCMJ offense prohibits (and authorizes punishment via court-martial conviction) the kind of disobedience displayed when the commander of U.S. Strategic Command, for example, refuses the order of the president to execute the launch of a nuclear weapon? Despite the immediate intuition that such disobedience to an otherwise lawful order would be prohibited (by Article 90 or 92), the answer is: none of the above.

A key problem in this scenario is the triple nature of the president’s position relative to the military offender: Not only is he a civilian, but he is also a general court-martial convening authority, and—as commander in chief—the person most directly interested in deterring such attacks on his prerogative from his direct military subordinates. These roles come with significant procedural constraints. He cannot, as a practical matter, serve as the “accuser,” kickstarting the “preferral of charges” process, because he is not subject to the UCMJ himself (Rule for Courts-Martial 307(a), discussion). Nor could he simply direct the secretary of defense or any subordinate military officer to be the convening authority in this case because Article 37(d)(2) of the UCMJ prohibits any senior court-martial convening authority from dictating what prosecutorial course to pursue (or not) to a subordinate who also has court-martial convening authority.

This means the president could only play a role as the victim of the offense and give no explicit or implicit direction to a military or civilian subordinate to serve as the accuser-by-proxy to avoid any appearance of falling within the statutory meaning of “accuser” himself. As a victim of this particular offense of disobeying an order, the president is not prevented from functioning as the convening authority to refer that very case to a general court-martial despite the clear appearance of personal interest and potential bias in the matter (military case law seems to identify violation of a convening authority’s order as an exception to this general rule designed to prevent bias in the system). Of course, Congress has granted the president the authority to create these rules of court-martial procedure, so the accuser/victim/preferral authority/convening authority dilemma can be overcome and clarified explicitly through relatively direct executive action.

There are substantive issues to address in addition to the procedural ones. Nothing in Article 92(1) is applicable because the order here is specifically directed to a subordinate—only Article 90, or possibly Article 92(2), is relevant. But Article 90 would not apply because the president and the secretary of defense are not, by statutory definition, superior commissioned officers. Article 92(2) is similarly inapplicable because neither of these civilian principals is a member of the armed forces. The civilian president or secretary of defense, intent on wielding the UCMJ as a prod to ensure compliance by their uniformed agents, would have to argue that disobeying such an order under such conditions constitutes a dereliction of duty under Article 92(3). This seems to be the only potential prosecutorial path, and it too comes with limitations. No “presumption of lawfulness” attaches to such a duty as it would if it had been ordered directly by a superior commissioned officer. Further, this particular species of disobedience offense requires an unspecified duty to be breached under the circumstances.

One issue that complicates such a prosecution in this hypothetical is the nature of the duty that shall not be breached. According to military case law,

[d]ereliction of duty [per Article 92(3)] is a uniquely military offense “specifically intended by Congress to ensure the proper performance of duty within the military service.” … Servicemembers’ military duties relate to “activities which are reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and are directly connected with the maintenance of good order in the services. [Emphasis added; internal citations and quotations omitted.] 

This is plainly oriented around deterring and punishing a failure to conform to a widely understood professional responsibility inherent to military service and one that reinforces the cohesiveness and readiness within the military. It is not meant to deter and punish a failure to follow operational directions, commands, and orders in the way that Articles 90, 92(1), and 92(2) deter and punish.

The second issue for an Article 92(3) offense is the legitimacy of the source of that duty. The required military duty might be identified or defined by a broad range of sources: treaty, statute, custom, standard operating procedure (SOP), or a “lawful order” (MCM, Part IV, para. 18.c.(3)(a)). Working through this list, obstacles emerge obstructing the use of this specific charge. There is no treaty or statute describing a duty of the U.S. military chain-of-command to obey a president’s decision to launch a nuclear weapon. This leaves only two possible sources for such a duty: a standard operating procedure or an otherwise lawful order. Any such SOP detailing the nuclear launch command and response sequence, and thereby a duty, is highly classified. Under Military Rule of Evidence (MRE) 505, “classified information must be protected and is privileged from disclosure if disclosure would be detrimental to the national security.” It is hard to imagine a more detrimental disclosure than revealing such procedures in open court. However restrictive this rule may be, it does not foreclose any and all classified evidence: The prosecution is permitted under MRE 505(e)(1) to “seek declassification” when it is “relevant and necessary to an element of the offense or a legally cognizable defense,” so the president (whose order was disobeyed and who also happens to have ultimate declassification authority) might just declassify the SOP or portions of it. But this seems unlikely and unnecessarily risky when other options remain, like the trial judge imposing special security protocols for handling, viewing, and discussing the classified evidence during the pretrial and trial phases.

All that risk and complicated evidentiary administration can be skirted, however, by claiming the duty originated from an otherwise lawful order. But “lawful order” under Article 92(3) is not defined. This means an Article 92(3) dereliction of duty offense (under a theory that the duty breached came as an order) is applicable as an additional offense only when the subject is already accused of violating a specific command—that is, a violation of UCMJ articles where “lawful order” is defined. This command could come from a superior commissioned officer, from another member of the armed forces (like a military police officer during a traffic stop), or as a general order or regulation under Article 90, 92(1), or 92(2). In other words, the command must come from someone other than the two civilians at the top of the national command authority.

A prosecution for a dereliction of duty offense would therefore have to argue that—in the case of the disobeying commander of U.S. Strategic Command—refusal to follow that president’s order somehow breached a customary duty of the military to obey such orders and that the officer knew or reasonably should have known of that customary duty (MCM, Part IV, para. 18.c.(3)(b), regarding the “knowledge” of the duty). “Customary duty,” in turn, is not defined according to this statute. Instead, one has to turn to the manual’s explanation of Article 134’s prohibition on “disorders and neglects to the prejudice of good order and discipline in the armed forces.” One way to violate this bar is to breach a custom of the service. “In its legal sense, ‘custom’ means more than a method of procedure or a mode of conduct or behavior which is merely of frequent or usual occurrence. Custom arises out of long established practices which by common usage have attained the force of law in the military or other community affected by them” (MCM, Part IV, para. 91.c.(1)(b)).

Here, the prosecution would argue that obeying the dictates of the superior civilian official is just that: a “long established practice[]” that has “attained the force of law in the military” by virtue of “common usage.”

It seems that this is possible under only two theories. First, the prosecution could argue that the sweep of Article II’s “commander-in-chief” clause is broad enough to cover the internal disciplining of the armed forces via criminal law regardless of what Congress (per Article I, Section 8, Clause 14) has legislated or authorized the president to do in this area. But no court has ever held this to be true of Article II. A more plausible argument is that both the president and subordinate officers have always behaved as if they understood such obedience to be a matter of customs and courtesies protected and enforced by criminal law. But if that custom were self-evidently true, the more straightforward prosecutorial approach would be to charge it as violation of Article 134, not as a clear-cut case of “disobedience.” On the other hand, the gravity of the order to launch nuclear weapons (by its consequences and irregularity) justify pulling this kind of order-obey scenario outside the realm of “custom of the service” altogether. In other words, the defense would argue that obeying this kind of order is no custom at all.

In all, prosecuting a senior military officer for disobeying his or her superior civilian authority under a clear “disobedience” statute is nearly impossible, and only plausible through a somewhat strained interpretation of the “dereliction of duty” offense. The nuances of the two enumerated disobedience UCMJ articles carry significant, if surprising and concerning, implications. This close reading of Articles 90 and 92 and their elements defined in the Manual for Courts-Martial suggests that military service members may have no legal duty to obey (in the sense of being subject to criminal prosecution) even lawful orders from a superior civilian authority like the president or secretary of defense, despite those officials having statutory power within the military justice system as general courts-martial convening authorities. Therefore, such civilian authorities may not be able to compel, even if the order is related to a military duty and lawful in every other way.

The only viable criminal sanctions left available are novel applications of two offenses almost never used to address disobedience. First, a charge of “conduct unbecoming an officer” under Article 133. But the prosecution would have to prove beyond a reasonable doubt that disobeying a senior civilian official’s command under those circumstances “seriously compromise[s] the accused’s standing as an officer” (MCM, Part IV, para. 90.c.(2)). This is an offense that criminalizes an attack on the idealized character of this officer. As the MCM states, the “gravamen of the offense is that the officer’s conduct disgraces the officer personally or brings dishonor to the military profession in a manner that affects the officer’s fitness to command the obedience of the officer’s subordinates so as to effectively complete the military mission.” Proving that up, and hearing a robust defense case in response, would be a fascinating look at how senior officers vary (or not) in their interpretation of their oath of office.

Alternatively, a charge of “conduct of a nature to bring discredit upon” the armed forces or that which is “to the prejudice of good order and discipline” under Article 134, UCMJ (as mentioned above). This charge, though, may be precluded under the military’s preemption doctrine. That doctrine holds that a prosecution under Article 134 (which is arguably much easier to prove factually) is barred if the conduct is otherwise chargeable under another regular punitive article (like Articles 90 and 92)—provided that Congress intended the other punitive article(s) to “cover the type of conduct in a complete way.” Arguably, neither of these classes of martial misconduct seems to be intuitively appropriate labels for the indiscipline illustrated by a senior military officer disobeying a lawful order from the president, but would have to suffice given the apparent lacuna between Articles 90 and 92.

What’s Left?

From the civilian’s point of view, myriad options apart from criminal deterrence remain on the table—ranging from immediately dismissing the officer from the service, to admonition and written reprimands, relief from command or removal from office, and the initiation of the officer’s retirement or resignation from active duty. At the very least, the president is likely to replace that nonconforming officer with one who will comply with the command.

From the officer’s point of view, fidelity to norms of civilian supremacy over the military, fear of reputational damage, and a diffuse but real sense of “duty” to obey may dissuade the officer more than the possibility of a court-martial conviction. At the same time, a committed officer with a strong ethical disagreement with the civilian’s norm-breaking decision may feel committed to a professional ideal of principled defiance grounded in moral judgment and personal conscience, not based on faith in a persuasive defense in court.

Conclusion

It is strange indeed that neither the president nor the secretary of defense can rely easily on the very military justice system they manage in order to regulate the compliance of their most senior military officers, even under emergency or norm-breaking moments when defiance is certainly more predictable. This conflicts with the view that the military justice system, at least in part, is an insurance mechanism used by both political branches against military usurpation of legitimate civil authority. This system may allow the senior military officials to ensure compliance by members of the armed forces by threat of criminal sanction, but it does not readily allow for those same senior military leaders to be held accountable via criminal law for their own disobedience to lawful civilian orders they happen to disagree with strongly. The most direct fix to this oversight is for the president to amend Part IV, para. 16, of the the Manual for Courts-Martial’s explanation of Article 90 to make willful disobedience to an order from a civilian official with general court-martial convening authority punishable by court-martial. This would still be inconsistent with the plain language of Article 90 (which requires the order to come from a commissioned officer), however, so a legislative fix is certainly preferable. 

The gap in UCMJ coverage for obedience to lawful civilian orders may possess some virtue notwithstanding the challenges discussed above. The military justice system should promote active subordination to civilian authority but still not be a complete obstacle to appropriate dissent–or even disobedience. There is still a need for subordination when lawful orders are perceived by the most senior military leaders to be at odds with other important constitutional values or pose grave moral risk. Whether the lack of meaningful criminalization of this kind of disobedience is intentional or not, and for whatever reason it is so, the Manual for Courts-Martial can and should make it explicit for the sake of making the necessary line between civil authority and military subordination that much clearer.