Executive Branch

A Duty to Disobey?

Doyle Hodges
Friday, August 19, 2022, 9:34 AM

Was Gen. Milley’s commitment to resist the former president justified?

Gen. Mark Miley (Department of Defense photo by Lisa Ferdinando, https://flic.kr/p/2mhQ1fq).

Published by The Lawfare Institute
in Cooperation With

Among the many revelations in Susan Glasser and Peter Baker’s recent article in the New Yorker about the last days of Trump’s presidency was that Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, resolved to thwart any orders he received from then-President Donald Trump to deploy troops domestically or to attack Iran without sufficient provocation. As the article details, “[Milley] settled on four goals: First, make sure Trump did not start an unnecessary war overseas. Second, make sure the military was not used in the streets against the American people for the purpose of keeping Trump in power. Third, maintain the military’s integrity. And, fourth, maintain his own integrity.”

As Trump’s presidency drew to a close, according to the article, Milley spoke by phone each morning with the secretary of state, the attorney general, and the White House chief of staff. He frequently called the White House counsel, as well. The goal of these phone calls was to “land the plane,” that is, to ensure that Trump’s presidency concluded with a peaceful transition of power, thereby achieving the four goals Milley had set for himself. 

While the article portrayed Milley sympathetically, his actions to frustrate the policy desires of the president are problematic from a civil-military relations perspective. That isn’t to say that the policy goals in question were ethical, legal, moral, or appropriate. Efforts to overturn a free and fair election are none of those things; neither would be orders to start an unprovoked foreign war. The problem is that the military is not the constitutionally prescribed mechanism to keep these things from happening. 

Samuel Huntington, in his influential book “The Soldier and the State,” wrote that “loyalty and obedience are the highest military virtues.” In her book, “On Obedience,” philosopher Pauline Shanks-Kaurin qualifies this somewhat: “[U]nreflective obedience is not a virtue and may in fact be a vice and counterproductive to the military function.” How ought Milley’s efforts to serve as a guardrail against what he perceived as Trump’s dangerous impulses be judged in this context?

This question has at least four parts: How far ought the senior military officer go to shape a president’s policy choices? What should the officer do if given an unlawful order? How should the officer respond if given an order that is “lawful but awful”? What other options were available to Milley, and what circumstances might have justified his acting on his own authority to stymie the actions of the president?

The Role of the Chairman in Policy Formulation

The Goldwater-Nichols Act defines the modern role of the chairman of the Joint Chiefs of Staff as “the principal military advisor to the President, the National Security Council, and the Secretary of Defense.” As such, the chairman is authorized (and required) to provide “the range of military advice and opinion” to those officials. The secretary of state, the attorney general, and the White House chief of staff are regular attendees of National Security Council (NSC) meetings, and thus Milley’s advice to them on military matters would have been within the scope of his responsibility as chairman—if the discussions were held under the auspices of the NSC. The fact that other NSC members were not included in the discussions with these officials, however, casts doubt on whether Milley’s daily conversations with them were legitimately part of his advisory responsibility to the NSC.

Whether the discussions related to military advice is also a thorny question. While the New Yorker article did not provide specifics, the implication is that the discussions had to do with a fundamentally political, rather than military, question: Would then-President Donald Trump acknowledge the validity of the 2020 election and peacefully turn over his office to President-elect Joe Biden? Even if the discussions were strictly related to the military’s role in such matters, if conversations were focused on the question of how to keep a president from pursuing a particular course of action, that is a political question. 

Such behavior would certainly fall into the category of what civil-military relations scholar Peter Feaver has called “shirking”—working to slow-roll or frustrate the known desires of the decision-maker. The chairman’s role is to present his assessment of the merits and wisdom of possible military responses, as well as to convey any dissenting views from other members of the joint chiefs. That responsibility may, at times, extend to advocating with a senior official for or against a particular course of military action, but discussions with NSC members of how to steer the president away from certain military policy choices is different from working with the president’s high-level advisers outside of the NSC context on political issues—which Milley was apparently at least prepared to do.

Without specific knowledge of the content of the conversations, it’s difficult to conclude definitively whether Milley exceeded his statutory mandate in conferring daily with Mike Pompeo, William Barr, and Mark Meadows. But if the conversations didn’t veer into topics well beyond his opinion on military matters, it’s puzzling why Milley felt it was important to tell reporters about them, and difficult to understand why these conversations would have continued daily during the postelection period.

Actually, Superior Orders Usually Are a Defense.

Supposing Milley had failed to dissuade the president from ordering a rash military action, might he have had a legal or ethical responsibility to disobey the orders as unlawful? Not necessarily—and, in fact, it seems unlikely.

Many people believe that the trials of Nazi leaders after World War II forever precluded superior orders as a defense against charges of illegal action. The International Military Tribunal at Nuremberg did reject the defense of superior orders, but only in the narrowest terms. In the High Command Cases, the tribunal wrote:

Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the State which he serves and which are issued to him are in conformity with International Law. 

In practical terms, this guidance from the military tribunal and related dictates are generally understood globally to mean that members of the military must disobey an order that is “manifestly unlawful.” But the standard for manifest unlawfulness is extraordinarily high. The Department of Defense Law of War Manual cites as an example an order to “machine gun” shipwreck survivors. Trump’s threats to strike Iranian cultural sites, kill terrorists’ families, or bring back “waterboarding and a hell of a lot worse” are other examples (although, as I have noted, this last example could be clouded by executive action changing U.S. interrogation guidance). Though these examples illustrate some of the limits imposed by law, a U.S. president can do a lot of mischief without ever issuing an order that is manifestly unlawful. 

Milley’s first goal, to “make sure Trump did not start an unnecessary war overseas,” illustrates the challenge. The operative word is “unnecessary.” On the one hand, Milley’s grave concern that Trump would seek to distract from domestic issues and rally support by launching an attack on Iran or another country seems well founded. On the other hand, the president’s war powers are broad and sweeping, and the determination of whether or not a military action is “necessary” is ultimately a determination of the elected president. While not directly comparable, this is similar to the position affirmed by the Court in Gillette v. United States that a person subject to military service claiming conscientious objector status must oppose all war on religious grounds, rather than limiting their objection to one particular war. The military doesn’t get to choose which wars it fights—that responsibility is left to civilians. As such, even the senior military officer doesn’t get to determine whether or not a war is “necessary.”

An order to deploy troops domestically under the Insurrection Act runs into a similar problem: 10 U.S.C. § 332 states, “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may … use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion” (emphasis added). While Trump’s desire to have troops “shoot protesters in the legs” almost certainly does rise to the level of manifest unlawfulness, as would an order to use force against peaceful political opponents, he clearly has a great deal of discretion in determining when the conditions allowing for the domestic deployment of troops have been met. In an environment such as that immediately following the election, when many Americans feared (or rooted for) a coup, the mere deployment of troops into the streets would have crossed a fateful line even if they were strictly constrained in their use of force. Gen. Milley could have strongly advised against such an order, and would have had a responsibility to craft the mission and rules governing the use of force in such a way that they did not violate domestic or international law, but it’s not clear he would have had a legal basis to disobey.

The military’s oath to “support and defend the Constitution of the United States against all enemies foreign and domestic” raises another possible source of legal objection to justify Milley’s efforts to stymie Trump. But the Constitution and federal law charge other offices and institutions—including the Supreme Court, the Office of Legal Counsel, the Department of Defense general counsel, and the legal adviser to the chairman—with determining the legality and constitutionality of orders. Milley’s expertise is in military matters, not constitutional law. If Milley consulted with any of these officials, it was not mentioned in the New Yorker story. None of these individuals or offices are mentioned as participants in the daily phone calls, or listed among those to whom Milley turned for advice and counsel. It is possible this omission reflects that his consultation was so routine that he didn’t think it worth mentioning, but it is unusual that Milley cited no legal opinions from any of these sources in addressing a challenge with significant legal elements and implications.

Disobeying unlawful orders is a critical element of military professionalism and the rule of law. But the nature of presidential powers and authority surrounding the use of force makes it unclear when a hypothetical order by President Trump to attack a foreign power or deploy troops into the streets would rise to the standard of manifest unlawfulness required to trigger disobedience. And, in fact, a large part of the chairman’s role (and that of the officials charged with ensuring the legality of executive action) would be to tailor the implementation of such an order to ensure that it complied with all relevant law.

“Lawful but Awful”: Handling Orders That Are Legal but Wrong

A stronger objection to Trump’s presumed desire to use the military to prolong his tenure is that such orders—even if carefully tailored to avoid legal pitfalls—would be morally wrong. The question of the moral responsibility of military officers for the effects of orders they carry out is a difficult one.

On one end of the spectrum is the advice offered in Shakespeare’s “Henry V.” When on the eve of battle Henry moves in disguise among his men to gauge their spirit, he remarks to one of his men that the king’s quarrel is “just and noble.” One remarks, “that’s more than we know,” joined by another who adds, “Ay, or more than we should seek after, for we know enough if we know we are the King’s subjects. If his cause be wrong, our obedience to the King wipes the crime of it out of us.” At the other end of the spectrum, philosopher Jeff McMahan has written that soldiers who fight in an unjust war bear full moral responsibility for the killing and harm they do, since they commit these acts in the service of an unjust cause. Shanks-Kaurin’s concept of “reflective obedience” seems to strike a balance between these two extremes, in that it asks officers not to blindly obey, but to consider the moral implications of obedience and disobedience, including the duty and presumption of obedience.

But what ought soldiers—especially one in a senior position such as the chairman—do if given an order they believe to be lawful, but morally wrong?

The options available to soldiers given an order are relatively limited. Boiled down to their essence, a soldier’s options are to obey or disobey. If the order is lawful and moral, obedience is a relatively easy choice. If the order is manifestly unlawful, disobedience is hard, but necessary and justified. The more difficult case is when the order is lawful (or the lawfulness is unclear) but morally repugnant. At that point, as Huntington writes, “this comes down to a choice between his own conscience on the one hand, and the good of the state, plus the professional virtue of obedience on the other.” If Milley had confronted such a situation, the balance would seem to tip toward disobedience, since in his judgment the moral objection to the order was that it would be dangerous to the state.

But disobedience in the military comes at a price, especially when it involves the military’s most senior officer and the elected president. It is impossible to have a military subservient to civilian authority if the most senior military officer refuses to follow the orders of the most senior civilian, no matter the reason. As a consequence, many civil-military scholars argue that an officer confronted with this choice must resign. Unlike a civilian official who may consider “civil disobedience,” so long as they are ready to accept any punishment that results, disobedience by the person who controls the military—which has the means to violently enforce its will if it chooses to—is not an acceptable option.

According to the article, Milley considered resignation, and went so far as to draft a resignation letter. However, he eventually decided that he had a responsibility to try to thwart Trump’s actions rather than resign. “He would not quit. ‘Fuck that shit,’ [Milley] told his staff. ‘I’ll just fight him.’ The challenge, as he saw it, was to stop Trump from doing any more damage, while also acting in a way that was consistent with his obligation to carry out the orders of his Commander-in-Chief. Yet the Constitution offered no practical guide for a general faced with a rogue President.” Thus, the situation with Milley is complicated further by the fact that he didn’t clearly receive unlawful or immoral orders. Instead, he was actively working with others without the president’s knowledge to prevent such orders from being issued.

While Milley’s rationale is laudable, his actions were not. Politicians are chosen and held accountable by election, impeachment, and political pressure. Generals are not. No one voted for Milley. So there are some decisions Milley didn’t have the authority to make. Choosing to “fight” the president, rather than allowing the constitutionally mandated mechanisms of impeachment or replacement under the 25th Amendment was just such a decision. While Trump could have fired or court-martialed Milley, had Milley’s insubordination been direct and clear, Milley’s attempt to hide it from the president meant that the general was intentionally short-circuiting even that extreme mechanism of accountability. Milley’s decision not to resign but, rather, to force the president to fire or punish him, was a stark departure from the military’s fundamental duty to follow and execute lawful orders from civilian authorities.

It may seem that judging Milley harshly suffers from 20/20 hindsight. He was in an unprecedented predicament, and it’s easy to condemn his actions once the crisis has been averted. Philosopher Michael Walzer helps to explain why such condemnation is necessary, even if Milley’s actions may have been justified by the extreme conditions of the moment.

Supreme Emergency and Its Consequences

Walzer’s “Just and Unjust Wars” is a modern classic of moral philosophy, widely admired and cited. In addition to his clear and concise “war convention,” Walzer introduces a controversial concept in the book: supreme emergency. There may be circumstances, Walzer argues, where the continued existence of a political community is in grave peril, and the only way for the community to survive is to commit an act that is ethically wrong. The example Walzer uses is the choice by British leaders during World War II to bomb German cities in order to avoid a Nazi takeover.

It’s possible to consider Milley’s actions in a similar light: The threat posed to the republic by Trump and the apparent unwillingness to act on the part of those constitutionally charged with checks on the presidency left him no other option. Whether or not this reading is accurate is a matter for debate. What Walzer says should follow supreme emergency, however, is not.

“What are we to say about those military commanders (or political leaders) who override the rules of war and kill innocent people in a ‘supreme emergency’? … They have killed unjustly, let us say, for the sake of justice itself, but justice itself requires that unjust killing be condemned.” In other words, an action itself can be unjust—and should be condemned—even if it is part of a broader military effort that is just.

A similar argument might be made regarding Milley’s deliberate choice to undermine the norms of civilian control by choosing to “fight” the elected president. The circumstances were extraordinary. The stakes were high. His choice, at least on the account provided by the New Yorker article, appears to have been made from honorable motives. But the damage to norms of civilian control is real and serious. If the norms of civilian control of the military and military professionalism are to survive, such damage demands condemnation in some form.

Doyle Hodges is the executive editor of the Texas National Security Review. A retired naval officer, he holds a PhD from Princeton University and has taught at Princeton, George Mason University, and the United States Naval Academy. The opinions here are his own.

Subscribe to Lawfare