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For example, if the president ordered the military to launch nukes to attack a country that poses no real threat, assuming its legal, can the military refuse to follow through on it on the grounds that it is immoral?

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    How would an order to launch nukes against a country that poses no real threat be legal?
    – Joe W
    Jan 9 at 4:02
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    The example of a nuclear attack is a difficult one - how can a soldier know it's no real threat?? You might find this wikipedia discussion on the Nuremburg Defense interesting - en.wikipedia.org/wiki/Superior_orders.
    – Alan Dev
    Jan 9 at 12:12
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    @vsz A line soldier probably wouldn't, but the generals through which POTUS relayed his order probably would have the necessary clearance.
    – Barmar
    Jan 9 at 22:34
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    @AlanDev It's interesting that Germany's political reaction to the Nuremberg trials was to allow soldiers to refuse orders on grounds of ethical objections. While the US did not make such a reform, despite that, under US law, those Nazis would have done the "right thing" as well.
    – ljrk
    Jan 10 at 11:49
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    @PeterCordes Yes the president doesn't have the legal authority to start a war with a country for no reason.
    – Joe W
    Jan 10 at 15:55
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The Uniform Code of Military Justice (articles 90-92) state that a service member will be subject to court martial if he or she "willfully disobeys a lawful command of that person’s superior commissioned officer." The operative word is here is 'lawful' which must be explicitly interpreted during court martial proceedings. Any service member who has a reason to believe that an order is given against the interests of the United States, in violation of military rules, oaths, or procedures, or otherwise improper or illegal, maintains the right to refuse to comply. It's a risk that a soldier might take on conscience, and like all risks of conscience it may result in prosecution. But that's what courts are for: to determine whether actions are lawful and legitimate.

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    It is also worth noting that the UCMJ is not self-executing. A court martial only happens if an officer with sufficient authority to convene one does so, and a court martial conviction may be reduced or set aside entirely in the discretion of every military officer in the chain of command above the one who convened it even if the conviction was sound as a matter of law and supported by the evidence. Also, any subsequent President could pardon a court martial conviction. And, preventing WWIII would still make you feel good about yourself, even in a military prison or before a firing squad.
    – ohwilleke
    Jan 9 at 3:21
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    This doesn't seem to directly answer the question. It tells us that a command may be disobeyed if it is illegal, and that what is illegal is to be interpreted by the court. But the question is founded upon the premise that the command is legal i.e. we are assuming that the court will interpret it that way. In that case, can the military still legally refuse to obey the command? I realise that we can infer the correct answer from your first sentence, but it would improve the answer if it was explicitly stated as a "no".
    – JBentley
    Jan 9 at 11:45
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    @OwenReynolds There is a world of difference between "no one wants to court martial you" and "legal". Illegal things happen all the time that, for one reason or another, are not prosecuted. They are still illegal. This question (see the title) is about legality, not about whether or not there will be any consequences.
    – JBentley
    Jan 9 at 20:26
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    @ohwilleke: The question asks about "the US military" refusing. So if all the Joint Chiefs (highest ranking military people) refuse, the question becomes who if anyone would have authority to convene a court martial? Jan 10 at 15:09
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    As I understand it, the UCMJ says you only have the right to refuse an illegal order and can be punished for refusing to follow an order you knew wasn't illegal because you have no right to refuse such an order, even if you are firmly convinced (and even if you are right!) that it is against the US's interests or improper. We don't want soldiers on the battlefield following illegal orders, but we also don't want them using their own judgment as to what is improper. Even if they are right, coherent and predictable action is more important. Jan 11 at 11:20
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Unknown, but unlikely.

1973, during the end of Nixon's reign, Harold Hering, twenty-one years into his Air Force career, while serving as a Minuteman missile crewman and expecting a promotion to lieutenant colonel, posed the following question during training at Vandenberg Air Force Base:

"How can I know that an order I receive to launch my missiles came from a sane president?".

This question led to his eventual administrative discharge. So at least in 1973 missile crewmen were expected to not question their orders.

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    I heard him on a radio show ("This American Life?", can't find it). I got the impression it was partly that Nixon did seem a bit unstable, partly that no one wanted to talk about who's in the loop for the actual decision -- how many generals can stop it by refusing? And mostly about not showing weakness to the USSR. We wanted them to think we might overreact to the slightest aggression Jan 9 at 18:24
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    @OwenReynolds, Harold Hering was on Radiolab, not This American Life. wnycstudios.org/podcasts/radiolab/articles/nukes I found it interesting - raised all sorts of questions about how deterrence works.
    – Jason
    Jan 10 at 14:09
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    Things have changed a lot since 1973.
    – agcala
    Jan 11 at 11:06
  • @OwenReynolds so it was loosely similar to Trump now, but with the cold war still ongoing. At the moment, there seems to be little risk of a nuclear attack on the US, or a nation like China, Russia or North Korea exploiting a situation, where military members would disobey an order to launch nukes. But they will surely exploit the situation in other, non-military ways.
    – Erik Hart
    Jan 11 at 12:51
5

House Majority Leader Nancy Pelosi actually got an answer to this question, and it backs up Ted Wrigley's answer.

This comes from Gen. John Hyten, "now the nation's No. 2 military officer". Notice that this is a 4 star General, not an enlisted soldier or even a lower officer, that would be making the decision of what order is legal or not. (FYI, a 4 star general is the highest military peacetime rank. The 5 star general is for wartime only.)

“And if it’s illegal, guess what’s 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?’ And we’ll come up with options, of a mix of capabilities to respond to whatever the situation is, and that’s the way it works. It’s not that complicated.”

"There is no mythical red button. That mythical button doesn’t exist. That is a Hollywood thing,” added a senior military official who was not authorized to speak publicly. “It is a very complicated process. We have legal advisers in the room on both sides — on the military side and on the civilian side. The laws of armed conflict, the law of war, play a big role in this — ethical proportionality and all that.”
...
...a Defense Department official who advises nuclear commanders ... “The way the nuclear arsenal is employed, it is not that easy for a crazy president to go and launch nukes,” the official said. “That’s kind of a silly thing to say.”

A senior military official stressed on Friday that troops have been taught to recognize and disobey illegal orders, particularly those at U.S. Strategic Command, which oversees America’s nuclear arsenal. While theoretically Trump could fire any officer who refused to obey an illegal order, he would be hard-pressed to find another who would implement it, the person said.

“It is important that our oath is to the Constitution, not to a person,” the person said. “I’m not saying that is easy, but I’m still confident that we would be able to do it.”

https://www.politico.com/news/2021/01/08/pelosi-trump-take-away-nuclear-codes-456529

This is essentially confirmed by AP News.

Although it would be unprecedented, a military officer could refuse to obey a president’s order to launch a nuclear weapon if a legal assessment concluded that it constituted an illegal act under the internationally recognized laws of armed conflict. This is a murky area, given that the circumstance has never arisen.

“If the military gets an illegitimate order from the president of the United States, the military can and should refuse that order in a situation where it is widely seen that the president is unfit and incapable of making a rational decision,” said Tom Z. Collina, co-author with former Defense Secretary William J. Perry of a book, “The Button,” about nuclear dangers and presidential command authority.

Under existing procedures, a president who was considering the need to use nuclear weapons would be expected to consult with advisers, most likely to include the secretary of defense, the chairman of the Joint Chiefs of Staff, and the commander of U.S. Strategic Command, which has operational control over the nuclear arsenal. Various assessments would be made, including the legal aspects of strike options.

The current arrangement in which sole authority to order a nuclear launch rests with the president is not written in law. It was created by Truman as a means to keep decisions about use of the world’s most dangerous weapons in civilian rather than military hands. The authority is considered inherent in a president’s constitutional role as commander in chief.
...
Also in November 2017, the Air Force general who was commanding Strategic Command at the time raised the possibility of having to refuse an illegal launch order. That officer, Gen. John Hyten, who is now the vice chairman of the Joint Chiefs of Staff, stressed that in any circumstance the military is obliged to only follow legal orders.

“I provide advice to the president,” Hyten said. “He’ll tell me what to do, and if it’s illegal, guess what’s going to happen? I’m gonna say, ‘Mr. President, that’s illegal.’ Guess what he’s going to do? He’s going to say, ‘What would be legal?’ And we’ll come up with options of a mix of capabilities to respond to whatever the situation is, and that’s the way it works. It’s not that complicated.”

https://apnews.com/article/donald-trump-politics-nancy-pelosi-nuclear-weapons-26a9ddefe652ef413951110cc67bf10a

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  • This is the crux of the matter (from the larger quote): "While theoretically Trump could fire any officer who refused to obey an illegal order, he would be hard-pressed to find another who would implement it, the person said." Officer-corps group ethics/behavior is generally seen as a large factor in matters such as coup success (or even attempts). It's unfortunately (notoriously) difficult to study empirically/experimentally the level of cohesiveness of the officer corps in such matters jstor.org/stable/3176221
    – Fizz
    Jan 12 at 1:17
3

Yes.

Not under the laws of the USA, but under international law.

The most famous example of this was with the Nuremberg trials, where leading Nazis were tried (and a number executed) for war crimes and crimes against humanity. Whilst some international laws existed relating to this, this was the first time that military and civil leaders had been brought to trial for war crimes, and the concept of "crimes against humanity" was explicitly created to deal with the creators of the Holocaust.

During the remainder of the 20th century, a number of Nazis involved in the Holocaust were also captured and tried. This was generally on a fairly ad-hoc basis, and little was done to deal with ongoing world problems.

Then the Balkans conflict happened. In the aftermath of that, the International Criminal Court was established as a permanent, supernational court to deal with war crimes and crimes against humanity. This happens basically without fear or favour. It does not try to replace due process in countries which already prosecute offenders effectively. Instead it explicitly exists to prosecute offenders where the country concerned has made it legal to carry out war crimes or crimes against humanity.

The requirement for this was clear from the Holocaust, and this is one case where Godwin's Law doesn't apply. Every death in the Holocaust was legal under German law. The Nuremberg trials established very clearly that "just following orders" was no defence; civil and military authorities were required to exercise moral judgement and refuse to follow orders which broke international law. If anyone thinks national laws should take precedence over international law, they are in favour of the Holocaust having happened. It really is that simple.

You may think the ICC would be pro-American. Ironically that isn't the case, because the US really doesn't like outside criticism of its military. The ICC is already investigating the US for war crimes in Afghanistan; the US has placed sanctions on the investigators, for no more reason than the fact that they are investigating US actions, but the investigation is still taking place. Based on this, if the US commits other war crimes such as an unprovoked nuclear strike against civilian targets, it is clear that the ICC would pursue action in that case too.

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    – JJJ
    Jan 12 at 12:12

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