Barracks lawyer

“Attaboy,” he said.

Two years later I was assigned a mission of much more significant importance. In the midst of that mission a second lieutenant gave me an order that I could not obey. I explained that doing so could cause grave harm and was in direct contradiction to my two years of  training. He began yelling loudly and profanely, threatening me with court-martial, which would be the rightful consequence if I turned out to be wrong about what I believed was a clearly unlawful order. I remained calm, but steadfast, and offered to step aside and allow someone else, even him, to replace me. He stormed off and, I learned later, reported my “insubordination” to the commanding officer. There was a full investigation and the chain of command eventually congratulated me on having made the right call. The lieutenant apologized, not so much for the order he gave, which he thought at the time was lawful, but for the way he handled my refusal. 

Two weeks ago, six Democratic lawmakers, all former military or intelligence veterans, recorded and released a public service announcement meant to reach our active duty servicemembers about lawful versus unlawful orders. They said, in part, “Our laws are clear, you can refuse illegal orders … you must refuse illegal orders. No one has to carry out orders that violate the law or our constitution.” You can watch the whole video and see the full range of conservative to progressive responses here: https://bit.ly/3M921ut

As you might imagine, our president was not pleased by this PSA hitting social media. He posted that the lawmakers were “traitors” and decried their “seditious behavior, punishable by death.” Later he reposted someone else’s call for them to be “hung.” Wow. 

Over the past few months I’ve been giving a lot of thought to the idea of lawful and unlawful orders, especially after I saw the first video of a boat with 11 people on board being obliterated by our military in international waters near Venezuela. The White House and Pentagon declared that the boat was carrying narcotics and branded the people on board “narco-terrorists.” I wonder how each level of the military handled the order to target the now many boats blown up and around 80 people killed, and how each servicemember decided whether each order was lawful or unlawful. Navy Admiral Alvin Holsey, the commander of U.S. Southern Command, abruptly announced his retirement in October, less than a year into a three-year assignment. Was retirement his way of saying “no?” 

As a former “barracks lawyer,” someone with no legal training who still thinks he understands the law, including the UCMJ, I think the orders to strike the boats, killing civilians in those boats, are unlawful, violations of international law and our Constitution. We are not “at war” and there is no congressional Authorization to Use Military Force (AUMF) that would justify these strikes, but it is very easy for me to opine from my safe civilian living room chair. Reuters, the New York Times and PBS have reported spikes in military personnel seeking legal advice on whether the orders they are receiving, or may potentially receive, are lawful, including orders placing them into America’s cities as part of the administration’s crackdown on immigration and crime.

Our nation’s founders were very wary of the government using the military on American soil with good reason. Congress passed the 1878 Posse Comitatus Act to prohibit our military from conducting domestic law enforcement. A federal court found the administration’s deployment of National Guard troops to Washington D.C. illegal but stayed that decision pending appeal. I believe it is illegal. Two guardsmen were shot near the White House on the day before Thanksgiving. Heartbreaking. The blame for the shooting lies only on the gunman and he should be held accountable. There are rumblings that the president will now send more troops to our cities and is planning military action against Venezuela. Let’s truly support our troops and demand that Congress invoke the War Powers Act and investigate the use, or misuse, of our military domestically and abroad. We the people can give Congress those lawful orders. Barracks court is adjourned.

Craig Wiesner is the co-owner of Reach And Teach, a book, toy and cultural gift shop on San Carlos Avenue in San Carlos. Follow Craig: craigwiesner.bsky.social.