Back in the campaign, when then-candidate Donald Trump was still promising to torture terrorists and kill their wives and children, he insisted the generals would do whatever he told them. (“They won’t refuse. They’re not gonna refuse me. Believe me,” he said in a debate. “I’m a leader, I’ve always been a leader. I’ve never had any problem leading people. If I say do it, they’re going to do it.”) Wrong!

His authoritarian misconception of the American system is based on the delusion that “his” generals are loyal to him. He is the commander in chief, but they take an oath to the Constitution and to abide by the laws of war, as experts told the Senate Foreign Relations Committee last week. The military is obligated to follow legal orders from those with authority to give them.

The top commander of U.S. nuclear forces says he would push back if President Donald Trump asked him to carry out an order he deemed “illegal.”
Air Force Gen. John E. Hyten told the Halifax International Security Forum on Saturday that he and Trump have discussed what would happen if the president ordered a nuclear strike that the general believed to be unlawful under international law.
“I think some people think we’re stupid. We’re not stupid people,” Hyten said. “We think about these things a lot. When you have this responsibility, how do you not think about it?”
Hyten would be in charge of U.S. nuclear forces in a war. If Trump decided to launch a nuclear attack, Hyten would provide him with strike options, and the president would make his decision.
“The way the process works, it’s simple,” said Hyten. “I provide advice to the president, he’ll tell me what to do, and if it’s illegal, guess what is going to happen?
“I’m going to say, ‘Mr. President, that’s illegal.’ And guess what he’s going to do? He’s going to say, ‘What would be legal?'” Hyten said he and Trump would work to find another course of action.

Unlike troops in authoritarian regimes, our military is obliged to disregard illegal orders or face the consequences. The report continued:

Hyten said he is trained every year in the laws of armed conflict — which are guided by principles that include necessity. Under that framework, carrying out an illegal order is a punishable offense.
“If you execute an unlawful order, you will go to jail,” he said. “You could go to jail for the rest of your life.”

This does not mean that every member of the military can or should play Twenty Questions with his or her commanding officer. It does not mean that when an attack has commenced or is imminent, a urgent order should be rebuffed. For better or for worse, the judgment — informed by the military assessment — as to whether we are under attack or imminent threat of attack rests with the commander in chief.

However, it does mean, especially when the consequences of actions are immense and there is time for rational contemplation, that military commanders and a slew of lawyers from the State Department, Defense Department and White House are going to be determine whether a nuclear or conventional first strike on North Korea is legal.

They will ask whether the president has legal authority to order a preemptive strike — or whether they require an authorization of force (as George W. Bush got). Congress can surely stymie a rush to unilateral judgment and give military officers a legal basis to slow the process down. Congress could, for example, pass by large majorities a declaration of war or even legislation declaring that a first strike on North Korea (not retaliatory and in a situation of imminent danger) was in fact an act of war, which only Congress can vote on.

Military commanders will also, according to the law of war, determine as best as they are able, with the advice of a fleet of lawyers, whether a preemptive strike is justified by military necessity and is proportional. (They are also obligated to distinguish between civilians and combatants and to avoid causing unnecessary suffering.) Our military men and women — whether the lowliest private or the head of U.S. Strategic Command — receive training in the law of armed conflict and are warned of the consequences if they carry out an illegal order (e.g., burn a village of civilians who pose no threat).

Congress can give the military some guidance, but it should also in the confirmation process be attuned to the character and judgment of each and every officer and render its own judgment on whether the officer embraces his or her legal and moral responsibilities. We should be very grateful for a military in which every member appreciates his or her own role and responsibility in resisting illegal orders. Trump didn’t and maybe still doesn’t understand that, but the military surely does.