Michael Hayden, former director of the Central Intelligence Agency (CIA) says that if Donald Trump were elected president, the U.S. military would deliberately disobey some of the orders that Trump has threatened to issue.
Hayden is a retired four-star general highly respected on both sides of the aisle. He served under presidents in both parties. He served for 41 years in the U.S. Air Force, was director of the National Security Agency (NSA) for six years, CIA director for three years, and currently works as a business partner of former Homeland Security Secretary Michael Chertoff.
Speaking with liberal firebrand and provocateur Bill Maher last week, Hayden discussed the national security and foreign policy issues in the presidential race.
After Maher mentioned that Trump had said he would have the U.S. military kill the wives and children of terrorists, Hayden responded, “If he were to order that once in government, the American Armed Forces would refuse to act.”
That’s a serious claim coming from a lifelong military and intelligence leader. Under 10 U.S.C. § 892, in the military, refusing to carry out the order of a superior officer is a crime, punishable by two years in prison and a dishonorable discharge from the military. The U.S. Court of Appeals for the Armed Forces held in United States v. Moore that an order is presumed lawful if it has a valid military purpose and a clear, specific, narrowly drawn mandate.
But that is not the end of it. “You’re required not to follow an unlawful order,” Hayden said.
“That would be a violation of all the international laws of armed conflict,” Hayden explained. A military officer must refuse to carry out an unlawful order, and the Geneva Conventions — a treaty the United States joined — forbids the deliberate targeting of civilians in military conflicts. This treaty would render such targeting unlawful.
Unlike many other countries, U.S. military officers do not swear an oath of obedience to the commander-in-chief. Instead, pursuant to Article VI of the Constitution, every commissioned officer takes an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” It makes no mention of the president at all, or of the chain of command.
That is because, in America’s form of government, the president is a public servant, tasked by the Constitution to “take care that the laws be faithfully executed.” As a consequence, the president has no authority to order military commanders to do something that would violate the law. In fact, if the law and the president are ever in conflict, every military officer is required to obey the former, and disobey the latter.
The entire exchange can be viewed here.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.