Illegal Orders and the Criminals Who Give Them

The president and secretary of defense have failed in their effort to see to the execution of six members of Congress after the lawmakers had the nerve to urge members of the U.S. military to refuse illegal orders, in other words, to obey the law.

The six Democrats — House members Jason Crow of Colo., Maggie Goodlander and Chris Deluzio of New Hampshire, and Chrissy Houlahan of Pennsylvania, and Senators Mark Kelly of Ariz. and Elissa Slotkin of Mich. — aired a 90-second video last year reminding military personnel that they are obliged to disobey orders that are unlawful.

When the video aired, President Trump called for the execution of all six. Washington, DC prosecutors then sought to charge the six with treason, sedition, and subversive activities — some of which are capital offenses.

Of course, urging the rank and file to obey U.S. military law is not a criminal act or a violation of any law, so on February 10 the grand jury refused to indict the cautionary lawmakers.

Sen. Mark Kelly is a former astronaut who has commanded 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 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 berserk reaction speaks volumes about the administration’s criminality in pursuit of police state impunity. (VP Vance falsely claimed that ICE agent Jonathan Ross, who murdered Renee Good in Minneapolis, is “protected by absolute immunity.”) Because the lawmakers’ video directly implied that illegal orders might come from the military chain of command, the two at the top of it — Trump and Hegseth — lost their heads.

At the time of the video’s airing, Hegseth hurried to the press and lied outright about the its message. He claimed 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. Hegseth’s formal January 5 memo attacking Sen. Kelly omitted the lying and noted that the senator 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 apoplectic over the video’s insinuation that the administration’s unconstitutional and undeclared acts of military aggression around the world might be criminal and require lawful military insubordination.

The gruesome irony of Mr. Trump’s outburst, “they should be hanged,” is that it’s been directed at war criminals. After WWII, Nazi commanders were hanged for following illegal orders. The defendants claimed that following orders was a legitimate justification, but prosecutors at the Nuremberg Tribunals, led by U.S. Supreme Court Justice Robert H. Jackson, replied and wrote into the Nuremberg Principles, “Superior orders are no defense.”

Legally, the same goes for U.S. military attacks in Iraq or Venezuela, civilians in fast boats, or attacks on sovereign independent states that have not attacked the U.S., including Iran, Iraq, Afghanistan, and Syria.

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.”

Recent U.S. military aggression against Iran, Nigeria, Venezuela, and on the High Seas appears 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, saw the writing on the wall. After reportedly questioning Pete “kill them all” Hegseth about the legality of the attacks the admiral had overseen, Adm. Holsey offered to resign and did so last December.

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