Throughout our military careers, we were proud to serve under the authority of civilian leadership. That leadership, however, was always understood to be subordinate to the Constitution, not above it. Our oaths made that distinction clear to us. Today, we are gravely concerned. The return of former President Donald J. Trump to office, following his conviction on 34 felony counts, has introduced an era of extraordinary constitutional uncertainty. The implications for the military, and particularly for senior leaders, are profound.
The Oath: Not to a Man, but to the Constitution
American military personnel swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” This oath intentionally avoids reference to any individual, including the president. Civil-military theorists such as Samuel Huntington and Peter D. Feaver have long emphasized the necessity of constitutional loyalty in preserving democratic civil-military balance. However, under the second Trump administration, personal loyalty has increasingly replaced institutional accountability as the perceived measure of allegiance to democratic norms. Several recent events suggest this shift toward loyalty to the individual rather than to the constitutional system:
- The dismissal of Department of Justice lawyers investigating the president’s role in the January 6th insurrection.
- The removal of judge advocates general (JAGs) from the military branches without public justification.
- The termination of the National Security Agency (NSA) director and deputy, reportedly for political disloyalty.
- The activation of the California National Guard absent a request by Governor Newsom.
- The deployment of U.S. Marines in support of the California National Guard.
We asked ourselves: where do these decisions leave the military? These actions reflect a pattern in which legal and institutional checks are systematically eroded in favor of personal loyalty to the commander-in-chief. Such behavior is inconsistent with the principles upon which the military oath is based and sends a chilling message: adherence to constitutional norms may be grounds for dismissal.
The Legal and Ethical Boundaries of Obedience
The Uniform Code of Military Justice (UCMJ) provides that service members are not obligated to obey unlawful or immoral orders. Articles 90 and 92 provide the legal foundation for this principle. Additionally, legal training and longstanding military doctrine within the services are clear on this point: officers must disobey orders that are clearly illegal or immoral. Yet these terms, “unlawful” and “immoral,” are increasingly difficult to define amid shifting political winds and weakening institutional guardrails.
Suppose the president were to order a military action to “reclaim” Panama, or to annex Greenland, or to openly align with the Russian Federation over our North Atlantic Treaty Organization (NATO) allies, or to more actively support Israel in its current wars against Hamas and Iran. Legally, these actions might fall within the president’s Article II powers. “While they may not technically violate the law, their actions might still be ethically questionable or strategically destabilizing.” “Courts are not empowered to second-guess policy decisions made by the political branches,” one legal analysis notes. So, who draws the line? What happens when following an order is technically legal, but morally indefensible or outright stupid?
We’ve heard this dangerous refrain before, I was only following orders. The world rejected that excuse after World War II, when Nazi officials invoked it at Nuremberg. Yet in the fog of a real-time crisis, where legal ambiguity clouds moral clarity, that same excuse could find new life.
In such a scenario, what should commanders do? Follow legal advice and comply? Resign? Refuse and face courts martial? This dilemma is not hypothetical. There is no doubt, this issue is being discussed by civil-military scholars, in the media, through 2024, and even more so today in the halls of the Pentagon.
Comparative Lessons and the Corruption Cascade
Our professional experience in multiple countries, including several where democratic institutions have eroded, provides relevant comparative insight. Corruption often began with central executives disregarding legal constraints in nations such as Turkey, Venezuela, and Hungary. Independent judicial institutions were the first to be dismantled, followed by purges of government agencies and silencing of media entities perceived as insufficiently loyal. The leaders of the armed forces, often reluctant at first, eventually aligned with the regime or were replaced. The early stages of that same pattern of corruption appear to be taking root in the United States.
Throughout our military careers, we were proud to serve under the authority of civilian leadership. That leadership, however, was always understood to be subordinate to the Constitution, not above it. Our oaths made that distinction clear to us. Today, we are gravely concerned. The return of former President Donald J. Trump to office, following his conviction on 34 felony counts, has introduced an era of extraordinary constitutional uncertainty. The implications for the military, and particularly for senior leaders, are profound.
The Oath: Not to a Man, but to the Constitution
American military personnel swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” This oath intentionally avoids reference to any individual, including the president. Civil-military theorists such as Samuel Huntington and Peter D. Feaver have long emphasized the necessity of constitutional loyalty in preserving democratic civil-military balance. However, under the second Trump administration, personal loyalty has increasingly replaced institutional accountability as the perceived measure of allegiance to democratic norms. Several recent events suggest this shift toward loyalty to the individual rather than to the constitutional system:
- The dismissal of Department of Justice lawyers investigating the president’s role in the January 6th insurrection.
- The removal of judge advocates general (JAGs) from the military branches without public justification.
- The termination of the National Security Agency (NSA) director and deputy, reportedly for political disloyalty.
- The activation of the California National Guard absent a request by Governor Newsom.
- The deployment of U.S. Marines in support of the California National Guard.
We asked ourselves: where do these decisions leave the military? These actions reflect a pattern in which legal and institutional checks are systematically eroded in favor of personal loyalty to the commander-in-chief. Such behavior is inconsistent with the principles upon which the military oath is based and sends a chilling message: adherence to constitutional norms may be grounds for dismissal.
The Legal and Ethical Boundaries of Obedience
The Uniform Code of Military Justice (UCMJ) provides that service members are not obligated to obey unlawful or immoral orders. Articles 90 and 92 provide the legal foundation for this principle. Additionally, legal training and longstanding military doctrine within the services are clear on this point: officers must disobey orders that are clearly illegal or immoral. Yet these terms, “unlawful” and “immoral,” are increasingly difficult to define amid shifting political winds and weakening institutional guardrails.
Suppose the president were to order a military action to “reclaim” Panama, or to annex Greenland, or to openly align with the Russian Federation over our North Atlantic Treaty Organization (NATO) allies, or to more actively support Israel in its current wars against Hamas and Iran. Legally, these actions might fall within the president’s Article II powers. “While they may not technically violate the law, their actions might still be ethically questionable or strategically destabilizing.” “Courts are not empowered to second-guess policy decisions made by the political branches,” one legal analysis notes. So, who draws the line? What happens when following an order is technically legal, but morally indefensible or outright stupid?
We’ve heard this dangerous refrain before, I was only following orders. The world rejected that excuse after World War II, when Nazi officials invoked it at Nuremberg. Yet in the fog of a real-time crisis, where legal ambiguity clouds moral clarity, that same excuse could find new life.
In such a scenario, what should commanders do? Follow legal advice and comply? Resign? Refuse and face courts martial? This dilemma is not hypothetical. There is no doubt, this issue is being discussed by civil-military scholars, in the media, through 2024, and even more so today in the halls of the Pentagon.
Comparative Lessons and the Corruption Cascade
Our professional experience in multiple countries, including several where democratic institutions have eroded, provides relevant comparative insight. Corruption often began with central executives disregarding legal constraints in nations such as Turkey, Venezuela, and Hungary. Independent judicial institutions were the first to be dismantled, followed by purges of government agencies and silencing of media entities perceived as insufficiently loyal. The leaders of the armed forces, often reluctant at first, eventually aligned with the regime or were replaced. The early stages of that same pattern of corruption appear to be taking root in the United States.
The Forgotten Chapter: Loyalty in Senior Leadership
Years ago, while Robert Adolph was serving at the U.S. Army’s John F. Kennedy Special Warfare Center and School, he was asked by the U.S. Army War College to review its draft leadership manual for senior officers. His primary critique was the omission of a chapter on loyalty. Specifically, he argued for a discussion on loyalty and the need for military leaders to be prepared for scenarios in which the commander-in-chief is in violation of his/her own oath to support and defend the Constitution. What happens when a colonel or general is ordered to execute an operation that may be legal, but deeply immoral, or strategically catastrophic? The consequences of avoiding that discussion are becoming clear.
Conclusion: The Coming Test
Civil-military relations depend on mutual respect and clearly defined roles: the military obeys civilian leadership; that leadership, in turn, is constrained by law and the Constitution. But what happens when the second half of that equation breaks down?
The removal of key legal and national security officials, coupled with aggressive assertions of executive authority, suggests the United States is entering a period of heightened constitutional crisis. The military cannot remain insulated from these developments. Recent troubling events in California strongly suggest that we have crossed into uncertain territory. If President Trump continues to act outside constitutional limits, senior military officers will be forced to grapple with an agonizing question: What loyalty is owed to a president who fails to honor his oath of office? This question may soon demand an answer—not in the abstract, but in real time.
That response should commence by affirming this core principle: loyalty to the Constitution comes before loyalty to any individual. If that principle fails, the foundation of American civil-military relations—and of the republic itself—will be at risk.
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(With special thanks to Professor Elena Coda)
** This article first appeared in Small Wars Journal and is reprinted here with permission.
*** This article was co-authored by Lt. Col. (Ret.) Benjamin Ray Lawton:
Benjamin Ray Lawton, PhD, a retired US Army Reserve Special Forces Lieutenant Colonel, is Professor Emeritus in the School of Languages and Cultures at Purdue University and an award-winning teacher, writer, lecturer, and translator. He is currently working on a revision of his co-edited book “Re-visioning Terrorism: A Humanistic Perspective” and the translation of Giuseppe Giacosa’s Impressioni d’America, 1908. Lawton served as an Inspector General during the First Gulf War.
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