On the face of it, it is a reminder to troops around the world. The message: “We support and defend the Constitution. Any act to disrupt the Constitutional process is not only against our traditions, values and oath, it is against the law.”
But the chiefs well knew the memo would be read across the globe, several defense officials say. They had plenty to say and each word was carefully selected. The chiefs are not partisan, but they have a fine-tuned antenna to the political climate. They know when it is time for them to speak out, as they did after racial unrest last year. And they knew that this memo would put them at odds with Trump days before he left office as commander in chief.
On Tuesday Trump defended his remarks that had inspired his supporters to march on and riot at the Capitol. But the chiefs made their stand by calling out the rioters, saying that “the rights of freedom of speech and assembly do not give anyone the right to resort to violence, sedition and insurrection” — a statement their commander in chief has refused to make.
The memo also made the critical point that “the US military will obey lawful orders” from civilian leadership. This may be the most important line to remember. The chiefs and combat commanders around the world have given thought to what they’d do if Trump issued an illegal order, and the answer is simple: They would not follow it, according to several Pentagon officials directly familiar with their thinking.
All US troops are trained to follow only legal orders. But in this charged environment, nobody will openly talk about how the chiefs would turn down an illegal order in the still unlikely event Trump were to issue one. But inside senior military circles, it is well understood. To be legal, an order for military action must have a valid target, it must be moral and ethical, and it must use proportional force.
Commanders simply don’t launch nuclear strikes, launch bombs and missiles, or send troops into harm’s way without a valid reason for military action. Presidential orders have multiple layers of legal review to ensure commanders can carry out those orders.
But if an order is illegal, what happens? The lawyers and the Pentagon leadership explain to the president why the order is not legal. If the president still does not back down, then there is no choice. Commanders must resign. The law prohibits them from carrying out illegal orders.
By issuing their statement, the Joint Chiefs have made it both privately and publicly clear what is at stake. But what is unsettling is that nobody knows if the President is listening.
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