"Don't Give up the Ship"

[RDKirk]

What if they are politicians themselves? Maybe they have a good grasp of the law. Maybe they don't. We may get a chance to find out. Certainly it's an arguable point since, in this specific case, a judge has prevented the Guard from doing anything. For now.

Chicago — Two Illinois National Guard members told CBS News they would refuse to obey federal orders to deploy in Chicago as part of President Trump's controversial immigration enforcement mission — a rare act of open defiance from within the military ranks.​

"It's disheartening to be forced to go against your community members and your neighbors," said Staff Sgt. Demi Palecek, a Latina guardswoman and state legislative candidate from Illinois's 13th District. "It feels illegal. This is not what we signed up to do."

Both Palecek and Capt. Dylan Blaha, who is running for Congress in the same district, described growing unease among Guard members after the White House federalized 500 troops – including members of the Illinois and Texas National Guard – to secure federal immigration facilities and personnel in the Chicago area.

A federal judge on Wednesday delayed the deployment of the National Guard in Chicago indefinitely, until a final ruling is issued or the Supreme Court rules on the matter.

Federal orders to deploy to Chicago are not illegal.

I expect those two Guardsmen will be full civilians soon. Their public statements place them, as an NCO and as an officer, in violation of a couple of UCMJ articles.

 

[Vambram]

No they aren't. To understand what is legal and illegal is why they are consulting attorneys prior.

I'm sorry but you appear to not understand how the military chain of command and the UCMJ works.

 

[wing2000]

Outside counsel can't say anything more than "try it and see."

As I said before, the White House lawyers will ensure that the orders are not "manifestly illegal."

White House lawyers? Surely you jest.

In any case, a "manifestly illegal order" is an order that is obviously illegal to anyone. Examples would include:

- harming civilians
- falsifying officlal documents
- assault, robery or other such crimes

 

[durangodawood]

There's no such thing as a "clearly illegal orders while the court takes its time." That's an absurdium.
.....

Yeah thats why I said the principle doenst include it.

There are situations where a person would be reasonably capable of judging an order illegal - even if theres also other tricky edge cases.

 

[RDKirk]

White House lawyers? Surely you jest.

In any case, a "manifestly illegal order" is an order that is obviously illegal to anyone. Examples would include:

- harming civilians
- falsifying officlal documents
- assault, robery or other such crimes

You guys keep creating hypotheticals which are already prohibited by law. So, yeah, something that is already prohibited by law is "obviously illegal."

But a deployment of troops to Chicago or a declaration of war on Venezuela is not already prohibited by law. If you want it to be an "illegal order," it must be against an existing law.

For that matter, "harming civilians" is also not prohibited by law. If civilians were to open fire on military that had been deployed to Chicago, returning fire is not prohibited by law.

 

[RDKirk]

Yeah thats why I said the principle doenst include it.

There are situations where a person would be reasonably capable of judging an order illegal - even if theres also other tricky edge cases.

An order is not illegal unless it defies an existing law. That's what the troops are taught "illegal order" means.

 

[Say it aint so]

Outside counsel can't say anything more than "try it and see."

As I said before, the White House lawyers will ensure that the orders are not "manifestly illegal."

What comes out of the white house is the concern. Listen, we banter back and forth about the expected protection provided by white house lawyers or whether they have anything to be concerned about. Yet it's clear there are some wearing the uniform who are concerned and just don't want to be put in that position. It's sad the commander in chief rather than reassuring he would never put them in the position of doing anything illegal, instead screams for treason and the the death penalty. It's sad.

 

[Say it aint so]

I'm sorry but you appear to not understand how the military chain of command and the UCMJ works.

That's irrelevant. The fact they are seeking counsel is despite both.

 

[Vambram]

That's irrelevant. The fact they are seeking counsel is despite both.

It ain't irrelevant.

 

[RDKirk]

That's irrelevant. The fact they are seeking counsel is despite both.

Don't read too much into that.

If they're "seeking counsel," it's because they've been sleeping through their LOAC training.

And you don't know what counsel is telling them.

 

[RDKirk]

What comes out of the white house is the concern. Listen, we banter back and forth about the expected protection provided by white house lawyers or whether they have anything to be concerned about.

I don't think you understood what I was saying.

Here is the thing about adjunct corps in the military (legal, intelligence, medical, meteorological, et cetera). If the commander has a mission, it is never the job of the adjunct corps to say, "You can't do it." It's their job to tell him how he can do it.

Military lawyers don't say, "That's illegal." They tell the commander how to do it it legally.

The same is true for White House lawyers. They don't say "no," they say "how."

That might even involve first "preparing the battlefield" by taking prior steps to adjust the situation to make what the president wants to do legal, or redefining terms or broadening pre-established conditions. Presidents do that all the time.

These may be things lawyers may dispute in court, but the fact that they must be disputed in court means they are not "manifestly illegal."

Yet it's clear there are some wearing the uniform who are concerned and just don't want to be put in that position. It's sad the commander in chief rather than reassuring he would never put them in the position of doing anything illegal, instead screams for treason and the the death penalty. It's sad.

 

[wing2000]

You guys keep creating hypotheticals which are already prohibited by law. So, yeah, something that is already prohibited by law is "obviously illegal."

That's just it.....Trump is fully capable of issuing "obviously illegal" orders.

But a deployment of troops to Chicago or a declaration of war on Venezuela is not already prohibited by law. If you want it to be an "illegal order," it must be against an existing law.

Others have used those examples. And I agree, those are grey areas.

For that matter, "harming civilians" is also not prohibited by law. If civilians were to open fire on military that had been deployed to Chicago, returning fire is not prohibited by law.

Right, well firing for self defense is not "obviously illegal" is it?

 

[wing2000]

Secretary of Defense Esper (from the first Trump administration when people were protesting in Washington DC):

"The president was enraged," Esper recalled. "He thought that the protests made the country look weak, made us look weak and 'us' meant him. And he wanted to do something about it.

"We reached that point in the conversation where he looked frankly at [Joint Chiefs of Staff] Gen. [Mark] Milley and said, 'Can't you just shoot them, just shoot them in the legs or something?' ... It was a suggestion and a formal question. And we were just all taken aback at that moment as this issue just hung very heavily in the air."

https://www.npr.org/2022/05/09/1097517470/trump-esper-book-defense-secretary

Who would stop Trump's worst impulses today?
Bondi?
Hegseth?

 

[durangodawood]

Secretary of Defense Esper (from the first Trump administration when people were protesting in Washington DC):

"The president was enraged," Esper recalled. "He thought that the protests made the country look weak, made us look weak and 'us' meant him. And he wanted to do something about it.

"We reached that point in the conversation where he looked frankly at [Joint Chiefs of Staff] Gen. [Mark] Milley and said, 'Can't you just shoot them, just shoot them in the legs or something?' ... It was a suggestion and a formal question. And we were just all taken aback at that moment as this issue just hung very heavily in the air."

https://www.npr.org/2022/05/09/1097517470/trump-esper-book-defense-secretary

Who would stop Trump's worst impulses today?
Bondi?
Hegseth?

Yes, we can see why the concern is real.

 

[ThatRobGuy]

You guys keep creating hypotheticals which are already prohibited by law. So, yeah, something that is already prohibited by law is "obviously illegal."

But a deployment of troops to Chicago or a declaration of war on Venezuela is not already prohibited by law. If you want it to be an "illegal order," it must be against an existing law.

For that matter, "harming civilians" is also not prohibited by law. If civilians were to open fire on military that had been deployed to Chicago, returning fire is not prohibited by law.

I had mentioned before that one possible angle behind this is a "if our legislation doesn't pass" hedge/backup plan.

Elissa Slotkin and Mark Kelly just recently introduced a bill (though, I don't believe it's reached the floor for at vote yet, it still may be in committee) aimed at making the kinds domestic military usages in question explicitly illegal and involving more congressional input/approval.

Right off the bat, it tells us something: It's not already "obviously illegal", if it was, they wouldn't be having to propose a brand new law to make it illegal.


Where I think it's a "hedge" is that with the current makeup of the legislature in both houses, the numbers aren't on their side right now. There's a good chance that'll change after the mid-terms, but that's still a ways off which means they won't have a remote chance of having the numbers to get it through with a veto-proof majority until the new congress starts up in 2027.

However, if they can create enough inner-turmoil within the military ranks that creates confusion and doubt about whether or not to follow orders, that can effectively slow Trump's plans to a crawl until they have the numbers to get actual legislation in place.


This isn't an entirely new concept for congress or former administration appointees -- that concept being, using unelected, like-minded federal employees as a bulwark against a president's agenda as part of the "resistance".

One notable example (and this is from a 2017 WaPo piece, so definitely not conservative bias)
There’s another level of resistance to the new president that is less visible and potentially more troublesome to the administration: a growing wave of opposition from the federal workers charged with implementing any new president’s agenda.

Less than two weeks into Trump’s administration, federal workers are in regular consultation with recently departed Obama-era political appointees about what they can do to push back against the new president’s initiatives. Some federal employees have set up social media accounts to anonymously leak word of changes that Trump appointees are trying to make.

Career staff members in at least five departments said they are staying in close contact with Obama-era administration officials to get advice on how to pushback against Trump initiatives.

Former labor secretary Thomas Perez, who also headed the Justice Department’s civil rights division under Obama, said he has been working to mobilize grass-roots opposition.


...so not novel with regards to the general approach.

However, what is different about this, is that typically they've leveraged like-minded career federal employees and staffers in places like the State Department for this kind of of bulwark "bring it to a screeching halt" tactic. To my knowledge, they haven't done it with the military servicemen before.

The stakes are much different in this instance.

If a state department employee who dislikes Trump opts to feign incompetence to make a project go poorly, call off sick a bunch, intentionally slow-walk a project to bungle an initiative, they're not going to find themselves in front of a judge, they're not going to get fired (because they're protected by powerful unions)

If a servicemen is given the order of "Okay, protestors have blocked road access to an ICE facility and federal agents can't get in or out, and the governor has refused to do anything about it and ordered state police to not intervene, our job is go clear them out of the way", and that servicemen says "Well, two senators and four former members of the state department put out that video saying they thought that was illegal, and that I could even get in trouble for following that order" and then refuses the order, there will be a very different set of consequences that happens.

 

[wing2000]

If a servicemen is given the order of "Okay, protestors have blocked road access to an ICE facility and federal agents can't get in or out, and the governor has refused to do anything about it and ordered state police to not intervene, our job is go clear them out of the way", and that servicemen says "Well, two senators and four former members of the state department put out that video saying they thought that was illegal, and that I could even get in trouble for following that order" and then refuses the order, there will be a very different set of consequences that happens.

...and use deadly force.