Illegal Orders and the Criminals Who Give Them
Image by Ian Hutchinson.
The president and secretary of defense have failed in their effort to see to the execution of six members of Congress after the lawmakers urged members of the U.S. military to obey the law.
The six Democrats — Representatives Jason Crow of Colo., Maggie Goodlander and Chris Deluzio of New Hampshire, and Chrissy Houlahan of Pennsylvania, as well as Senators Mark Kelly of Ariz. and Elissa Slotkin of Mich. — aired a 90-second video last year reminding military personnel that they “must refuse illegal orders.”
When the video aired, President Trump called for the execution of all six. Then, Washington, DC prosecutors sought to charge all six with federal crimes, including treason, sedition, and subversive activities – some of which can carry the death penalty.
Of course, urging the rank and file to obey military law and the laws of war is not a criminal act or a violation of any law, so this week the grand jury refused to indict the lawmakers.
Senator Kelly is a former astronaut and commander of the Space Shuttle, and a retired Navy Captain with 25 years in the Marine Corps. Sen. Kelly spoke to John Stewart on The Daily Show about the video and reported, “We said, ‘don’t follow illegal orders.’ We stated the law. Donald Trump didn’t like that,” and he “called for me to be hanged.”
The president’s berserker reaction speaks volumes about the administration’s hair-raising criminality and its pursuit of police state impunity. (As when VP Vance claimed falsely that ICE agent Jonathan Ross, who murdered Renee Good in Minneapolis, is “protected by absolute immunity.”) Because the lawmakers’ video message directly implied that certain orders from today’s chain of command (headed by Hegseth and Trump) could be illegal — orders, say, to kill civilians in the open sea, in Venezuela, Iran, Yemen, in Nigeria, Minneapolis, or elsewhere — the two TV stars lost their heads.
At the time of the video’s airing, Hegseth hurried to the press and lied outright about the lawmakers’ message. He said Sen. Kelly had told military personnel “not to follow lawful orders” — knowing full well that his blistering falsehood would go viral and be reported as fact. The Pentagon’s formal Jan. 5 memo attacking Sen. Kelly corrected Hegseth’s lying and noted that the senator had said, “You can refuse illegal orders. You must refuse illegal orders.” To John Stewart, Sen. Kelly confirmed, “It’s what we said, and that’s the law.”
Leave it to the twice-impeached, convicted felon and sex predator Trump — and to Hegseth, who once doled out $50,000 to quash a sexual assault accusation — to be politically apoplectic by the video’s insinuation that the administration’s unconstitutional and undeclared acts of war around the world and across the United States might be criminal and require lawful military insubordination.
The gruesome irony of Mr. Trump’s “they should be hanged” outburst is that, after WWII, Nazi war criminals were hanged for following illegal orders. The defendants claimed “superior orders” as justification, but prosecutors at the Nuremberg Tribunals, led by U.S. Supreme Court Justice Robert H. Jackson, thundered in response: “Following orders” is no defense.
Legally, the same goes for U.S. military attacks on civilians in Iraq or Caracas, civilians in fast boats, or attacks on sovereign independent states, including Iran, Iraq, Afghanistan, and Syria that have not attacked the U.S. In opening the military tribunals in Germany, Justice Jackson spoke partly to the victorious Allied powers who presided, warning: “While this law is first applied against German aggressors, the law includes, and, if it is to serve a useful purpose, it must condemn aggression by any other nations, including those which sit here now in judgment. … [T]he record on which we judge these defendants today is the record on which history will judge us tomorrow.”
Recent U.S. military aggression in Iran, Nigeria, Venezuela, and on the High Seas seems to violate the laws of armed conflict and the Uniform Code of Military Justice, which is partly based on the Nuremberg Judgment. And at least Admiral Alvin Holsey, who was Commander of the U.S. Southern Command and in charge of missile attacks on civilian fast boats, seems to have seen the writing on the wall. Adm. Holsey offered to resign and left last December after reportedly questioning Pete “kill them all” Hegseth about the legality of the attacks.
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