A four-star US general made news by saying he would not obey an illegal order by the President. It was one of the most remarkably unremarkable things an active-duty officer of his rank has said in some time.
Here’s what happened:
When asked Saturday at a security forum in Nova Scotia if he would obey what he believed to be an illegal order to launch a nuclear strike, Gen. John Hyten, commander of US Strategic Command, said, “I provide advice to the President. He’ll tell me what to do, and if it’s illegal, guess what’s going to happen? I’m gonna say, ‘Mr. President, that’s illegal.’ Guess what he’s going to do? He’s going to say, ‘What would be legal?’ And we’ll come up with options of a mix of capabilities to respond to whatever the situation is, and that’s the way it works.”
He’s right. That’s the way it works.
Nothing he said is new. The Uniform Code of Military Justice — the military’s law book — requires personnel to obey only lawful orders, including those issued by the commander in chief.
It states pretty clearly that an order by one’s boss is considered lawful unless “it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.”
Not a lot of wiggle room there. And it’s generally presumed that orders from commanders with authority are lawful.
The Manual for Courts-Martial is even more clear, making no bones about the fact that orders “requiring the performance of a military duty or act may be inferred to be lawful” and are disobeyed “at the peril of the subordinate.”
That said, the manual also makes clear that if a subordinate is issued a “patently illegal order,” such as one that directs the commission of a crime, he or she must disobey it.
But Hyten was also referring to the Law of Armed Conflict, which takes into account specific factors — military necessity, distinction, proportionality, unnecessary suffering/humanity — in determining what constitutes fair conduct in targeting decisions during combat.
That’s where Hyten and his nuclear weapons come in. Depending on what Kim Jong Un might do, the use of these weapons in retaliation or pre-emption would have to be considered proportional in both scope and size and militarily necessary. In other words, legal under the Law of Armed Conflict.
Therefore, the general would most certainly discuss the facts and circumstances with the President and his advisers before acting on an order involving a strike.
It’s a grave matter to consider, but as Hyten put it, “It’s not that complicated.”
Why it’s an issue
Where it seems to be getting complicated is in the person of the President himself and a growing concern by lawmakers about his fitness to serve as commander in chief.
Just last week, the Senate Foreign Relations Committee held a hearing to explore the president’s authority to use nuclear weapons. It was the first such hearing in more than 40 years.
Let me repeat that: It was the first such hearing in more than 40 years.
For his part, the committee chairman, Sen. Bob Corker, beat back the rumors that his hearing was targeted at any one individual, but that fig leaf of an excuse didn’t cover much when other committee members started speaking.
“We are concerned that the President of the United States is so unstable, is so volatile, has a decision-making process that is so quixotic,” Sen. Chris Murphy said, “that he might order a nuclear weapons strike that is wildly out of step with US national security interests.”
Ultimately, none of the witnesses — which included a former Strategic Command commander — recommended any changes to the President’s unique and sole authority to use nuclear weapons.
That’s a good thing, because the nuclear decision-making process has served us well. There are enough checks and balances involved — and enough space for advice and counsel to reach the ears of the President — that changing them in any significant way to adapt to Donald Trump could needlessly tie the hands of future administrations.
What to do
It’s best to leave things as they are and trust that leaders such as Hyten, Defense Secretary James Mattis and Gen. Joe Dunford, chairman of the Joint Chiefs of Staff, will continue to provide the President with their best military advice and be mindful of the legality of whatever orders they are given.
Trump must continue, in return, to make himself accessible to these men, to listen to their advice and to demonstrate a more suitable level of curiosity and seriousness about his war-making responsibilities than he appears to be doing.
We should take heart that Hyten’s answer on Saturday was not remarkable. That he had to say it, however, certainly was.
