Posting #23: The story of discipline and immunity for a Commander-in-Chief
The story: Discipline is central to the US military. It involves regulating all aspects of a servicemember’s life, from hair length, sleep time, clothing, physical fitness, where one lives, to cognitive choices. The primary objective to instilling discipline is to ensure that servicemembers act so automatically and without question during peacetime that, in combat, they also will act automatically and without question. Such discipline ensures they will not defy nor ignore an order delivered by a superior. This habitual enactment of discipline is called obedience, and the good working of the US military relies on it.
My take on the story: It’s this obedience that is one of the many problems with the July 1, 2024 Supreme Court ruling that a President of the United States has immunity from criminal prosecution in the course of official acts. The President is the Commander-in-Chief (CinC) of the US armed forces and so any command she delivers is an official act. The CinC has a number of expert advisers representing the armed forces, including the Secretary of Defense, who is a civilian but is the President’s principal adviser on defense policy, and the uniformed chairman of the Joint Chiefs of Staff (JCS), who advises the Secretary and the President on the military itself. Note, though, that these high-ranking representatives are only advisers; the US military is commanded by the President and no one else.
Consequently, the US military always has had to trust that a CinC will respect and honor the advice of the President’s military experts and will not corruptly issue commands that violate domestic or international laws. The advisers may recommend certain actions involving the US military, but, ultimately, they must obey the CinC. Until the Supreme Court ruling, however, the CinC had been obstructed by the law from issuing illegal commands.
Therefore, if the CinC is immune from being prosecuted for criminal acts in the course of commanding the US military, as the Supreme Court has ruled, nothing outside of personal honor—or what Lawfare calls the “good faith, moral compass, and constitutional fidelity of their commander in chief”—prevents the President from ordering illegal acts, domestically or internationally. Nineteen retired generals and admirals, many of whom had served as secretaries of the Navy, Army, and Air Force, filed an amicus brief with the Supreme Court warning that its granting immunity would be severely damaging to the US military, particularly for individual servicemembers whose loyalties to the Constitution and to the CinC may be divided. In a Stars and Stripes column, they write:
[Servicemembers] have a duty to disobey unlawful orders or else face criminal prosecution themselves. The importance of the underlying principle — that “just following orders” is not a defense to having committed crimes, even during war — was perhaps most poignantly illustrated during the Nuremberg trials following World War II as the Allied powers sought to impose accountability for Nazi atrocities. Freeing a president from accountability under our criminal justice system — as absolute immunity would do — would threaten all of these principles by increasing the likelihood that a president would force service members to choose between following the president’s unlawful orders or following their duty to disobey all unlawful orders. Military personnel would continue to be legally accountable, even as they serve a president who is not. Inevitably, chaos and division across the ranks would follow. (emphasis added)
With the Supreme Court’s ruling, however, nothing in law can prevent the US President from using the US military however she chooses—including, as Supreme Court Justice Sotomayor argues in her dissent to the ruling, the CinC using the US military to, for instance, assassinate a political rival and/or stage a coup.
This puts servicemembers, shall we say, in a real pickle. How likely is it that any servicemember, regardless of rank, will disobey an order from the CinC? Even if they know or suspect the order is illegal? And that whether they defy the order or carry it out, they are likely to be court-martialed? As Victor Hansen, a career US Army lawyer and now professor of law at the New England School of Law, explains it, “Now you have the subordinates who have not all of the authority but all of the responsibility, and you have a guy at the top who has all the authority and none of the responsibility.” With this Supreme Court ruling, it is the entire US military who pay the price of criminality, not the CinC mandating the crime.
Pardons of criminal conduct
Unless, of course, the President-and-CinC pardons servicemembers for their criminal acts. In one of the very few instances of the CinC overriding the military justice system, in 2017 President Obama commuted Chelsea Manning’s 35-year sentence for espionage. (I cannot find evidence that Obama’s military advisers objected to his commutation.) Manning’s was not, however, a war crime and her crime was not pardoned. But her sentence was judged to be disproportionate to the sentences other leakers had been given. According to the ACLU, hers was a longer sentence than anyone else in U.S. history has received for disclosing information to the news media. The seven years she already had served were regarded as adequate punishment for her crime. At the same time, Obama pardoned James E. Cartwright, who was “the retired Marine general and former vice chairman of the Joint Chiefs of Staff who pleaded guilty to lying about his conversations with reporters to F.B.I. agents investigating a leak of classified information about cyberattacks on Iran’s nuclear program.” Cartwright was tried in a civilian court, however, and Obama pardoned Cartwright before he was sentenced. So Manning’s was the only case when Obama overrode the military justice system but he did not pardon the crime.
Even before the Supreme Court ruled in 2024 that the President has immunity from criminal prosecution while conducting official acts, however, in 2019, then-President Trump pardoned three servicemembers who had been court-martialed or facing court-martial for having committed war crimes. He did not order their crimes, but in pardoning them—against the vehement recommendations of his advisers—Trump demonstrated his contempt both for the advisers’ advice and for the discipline central to the US military. “Mr. Trump’s reprieves,” the New York Times reports, “issued against the advice of top defense officials, were seen as a sign of disregard not only for the decisions of military juries, but for the judicial process itself.” The article continues with another former military lawyer worrying that “This isn’t about these three individuals, it’s about the whole military justice system and whether that system itself is something of value to the operations of the military.”
Similar worries were expressed in the 1970s about the potential for President Richard Nixon to pardon Lt. William Calley, the man held responsible for the My Lai Massacre. Though Nixon went so far as to remove Calley from the stockade and put him under house arrest, even Nixon, who eventually was compelled to resign from the presidency and was pardoned himself, did not pardon Calley.
The Military Justice System
The military justice system, also known as the Uniform Code of Military Justice (UCMJ), is “federal law, enacted by Congress which applies to all active duty members as well as activated National Guard and Reserve members and military academy students. Some civilians serving in support of the military during wartime are also subject to the UCMJ.” As the Commander-in-Chief, the now-immune President—according to the Supreme Court—ironically is responsible for the enforcement of those laws by creating and maintaining the Manual for Courts Martial (MCM).
With then-President Trump’s thumbing his nose at his military advisers and the Congress-enacted UCMJ with his pardons for servicemembers who were found to have committed war crimes, in effect, at once he challenged the federal law and revised the MCM. (Logorrheic Candidate-Trump also did this thumbing when, before Bowe Bergdahl’s court-martial, Trump opined in 2017 that Bergdahl ought to be executed. This was among the reasons for Bergdahl’s conviction being vacated in 2023.) With these pardons of war crimes, the clear signal is sent by the CinC to servicemembers that no holds are barred, that the military will not be constrained in its conduct of war, that the Rules of Engagement and international laws of war do not apply.
As Gabor Rona puts it in Just Security,
Pardoning these men, especially the ones who have not yet been tried (amnesties), is an insult to the legal and moral standards the U.S. military is bound to uphold. It undermines the ability of the military to enforce discipline among its ranks and after the torture scandals of post-9/11 [at Abu Ghraib and Guantanamo], further damages the reputation of the United States for adherence to its international human rights obligations and the laws of war.
Rona goes on to suggest that with the pardons, Trump might very well have committed a war crime himself:
The [international] law of command responsibility doesn’t only address crimes a commander ordered his or her troops to commit, or even only those which he or she failed to prevent. It also requires a commander to impose consequences for violations committed by his or her subordinates. It is hard to imagine a clearer violation of this obligation than a pardon [of a war crime]. … as Commander in Chief, President Trump also has an obligation under both domestic and international law to at least not impede processes to hold war criminals responsible, and his pardon powers do not override that responsibility.
Impact on international community
In the quote above, Rona alludes to the corrosive impact on other countries of Trump’s pardoning war crimes, and this should, indeed, give all Americans pause. We live, after all, in a global community and cannot deny the impact of US domestic affairs on the rest of the world and theirs on ours. In “The Imperial Presidency Unleashed,” three scholars of Political Science and International Relations caution in Foreign Affairs about the Supreme Court’s ruling of presidential immunity on relations with other countries: “Allies and adversaries must now assume that all presidents have the potential to act untrammeled because they are completely unaccountable.” In terms of the since-dismissed Trump Classified Documents case, for instance, “U.S. partners were thus already uncomfortable that presidents could declassify documents at will while in office. But now, U.S. presidents may have the power to take classified documents with them when they leave, possibly for nefarious purposes. This possibility could prompt allies to withhold intelligence.”
So what?
Even though the impact of a President’s immunity to criminal prosecution in regard to her role as the US military Commander-in-Chief was raised in the DC Circuit Court of Appeals hearing when Trump’s lawyer audaciously asserted the CinC could order SEAL Team 6 to assassinate a political rival and not be prosecuted; and even though nineteen former admirals and generals, many of whom had served as leaders of their branches, filed an amicus brief opposing CinC immunity; there is no indication in the Supreme Court’s ruling that the US military’s concerns were taken into account.
In their Stars and Stripes column about their opposition to presidential immunity that I quoted from above, the nineteen former high-ranking military leaders express their deep concern for the dangerous quandary a potentially lawless CinC poses to individual servicemembers. But in their amicus brief, they also predict dire consequences for the discipline at the heart of their profession and for the regard with which Americans hold their armed forces:
Granting the President absolute immunity from criminal prosecution would threaten the good order and discipline that allow the armed forces to maintain a fighting force capable of protecting the safety of all Americans. Allowing for such immunity also would undermine our nation’s trust in the military as a revered institution situated above and apart from the political fray.
Certainly, the retired generals and admirals have cause to worry that a lawless CinC would undermine the reverence for the US military and subsequent recruitment, since the reverence drives recruitment and DoD funding. The CinC’s immunity to prosecution is likely to influence already-rocky enlistment numbers as potential recruits are made aware of the price they may have to pay for an above-the-law CinC. The inability to trust a CinC to abide by the law may also compound the numbers of servicemembers who report experiencing “moral injury,” or the damage done to one’s own deeply held moral beliefs and values while serving in the US military. This potential for increased levels of moral injury also poses a threat to the US military’s standing in American society and subsequent recruiting. (See Posting #8).
To my mind, it’s respect rather than unquestioning discipline that is central to the US military. Although respect is rarely discussed in the military aside from the acts, like the saluting required of subordinates to superiors, I think the enactment of discipline—obedience—depends on respect. What I mean by respect is not the deferential, obligatory saluting required of a subordinate to a superior but instead the earned regard for someone because of their abilities, qualities, achievements, or rank.
(Interestingly, only the “NCO Creed” on the US Army website mentions respect: “I will earn their [officers’] respect and confidence as well as that of my Soldiers.” Neither the creeds of officers nor Soldiers have any reference to respect.)
And to have respect for her superiors, a servicemember needs to trust that the commands she receives are AT THE VERY LEAST law-abiding and ethical. And that starts at the top, with the CinC. A servicemember needs to trust that the CinC will not use the military to take personal revenge, incite war crimes and insurrection, line her pockets, accept a bribe in exchange for vetoing a bill or demand one for deciding where U.S. troops, for instance, should be based overseas. The servicemember’s confidence that the commands are law-abiding and ethical generates less the saluting obliged of her and more her high regard and trust.
Can a CinC immune from the law engender respect? I think not.