On Sunday, CIA Director John Brennan made waves during an interview by saying that the agency would refuse calls to reintroduce the practice of waterboarding, even if ordered by the Commander-in-Chief, on grounds that such acts are illegal.
The CIA director’s statement was in response to calls from Republican presidential frontrunner Donald Trump to restore waterboarding and other forms of torture, as well as engage in targeted assassinations of a terrorist’s family members – a position that domestic and international law scholars have refuted as not only immoral but illegal.
The question, however, remains whether US troops would be allowed to disobey an order to engage in torture, or kill civilian family members of terrorists, if that order was given by a US president.
"I think Brennan’s comments are ridiculous," Trump stated in a Fox & Friends interview. "Can you imagine these ISIS [Daesh] people sitting around, eating and talking about how this country won’t allow waterboarding and they just chopped of 50 heads?"
What authority do soldiers have to disregard an order from the President of the United States?
Soldiers, regardless of their legal expertise, are required to disobey an illegal order. As established during the Nuremberg Trials and by Article 90 of the Uniform Code of Military Justice (UCMJ), an individual who follows an illegal order is culpable for the crime and cannot use the claim that they were simply "following orders" as a defense.
There is a finely-honed exception to Article 90 requiring that, for a soldier to lawfully disobey an order, the command must be "manifestly illegal." This follows the presumption that an order, given by a superior officer, is legal such that if it is in a legal grey area, the soldier is required to follow the order. Finally, the soldier is engaging in a criminal act if he refuses to follow an order that is in a grey area pursuant to Article 92 of the UCMJ.
Are the actions called for by Donald Trump illegal?
Maybe, because of the presumption of legality the soldier must confront in a trial for disregarding an order, meaning the practical answer for a soldier is 'no' – those acts are not illegal and the soldier cannot disregard commands from a sitting US president.
Speaking to Loud & Clear’s Brian Becker, Jeff McMahan, a University of Oxford professor, points to examples listed in Article 90 of the UCMJ, including murdering civilians and willfully causing great suffering or serious bodily injury to a prisoner of war, thereby discounting Trump’s claim to executive authority.
Furthermore, McMahan points to Army Field Manual (FM) 2-22.3, which expressly prohibits waterboarding, the conducting of mock executions, and inducing hypothermia or heat injury.
Finally, he noted the McCain-Feinstein Amendment to the 2016 National Defense Authorization Act, which requires interrogation techniques to fit within the mandates of the Army Field Manual, which expressly prohibits waterboarding.
There is a compelling case that the actions called for by candidate Trump would, in fact, be illegal. The question however, isn’t whether they are legal or illegal, but whether they appear to be illegal or are manifestly (blatantly, clearly, etc.) illegal.
Assuming a new amendment in the 2017 National Defense Authorization Act, there would be no US law that defines waterboarding as torture. As the 2nd Bush administration has shown, legal gymnastics can provide a claim that these techniques are "enhanced interrogation," but fall short of torture.
Torture, something that candidate Trump has called for, has long been illegal, pursuant to the UCMJ and the Geneva Conventions. Actions of this nature ordinarily fall under the heading of "manifestly illegal." However, different rules apply to non-state actors/terrorists; as the Geneva Conventions are a treaty between countries that creates rights for a country on behalf of citizens.
Murdering civilians, whether or not they are related by blood to a known terrorist, is listed in examples of "manifestly illegal" acts. But again, there is a conflicting rule under international law regarding "reprisals" – acts beyond what are traditionally allowed under the laws of war – in response to a war crime. The only requirement is that a reprisal must be proportionate to the act it is in retaliation for. In the previous example: is a targeted killing proportionate to a claim of 50 beheadings?
Unfortunately for US soldiers, the sword cuts both ways and, if brought to trial, an accused must first overcome a military tribunal which presumes that the ordered act is lawful. Thus, under President Trump, US soldiers may find themselves in a Catch 22, an impossible scenario in which they must follow illegal orders or face imprisonment, or even death, for refusing to blindly obey.