In 1974, when President Richard Nixon departed the White House for the very last time, Defense Secretary James Schlesinger breathed a sigh of relief. In the waning days of Nixon’s presidency, the secretary had done something highly unusual: Schlesinger had asked the chairman of the Joint Chiefs of Staff and other military leaders to call him if the president gave a nuclear launch order. The president, drunk and raging during his final days, had seemed unhinged, Schlesinger thought. Better safe than sorry, and better to infringe upon the chain of command than plunge the world into nuclear war.
Over the past four years, historians and journalists have recalled this story with a sense of foreboding and terror. What chance does the world stand against a presidential tantrum? Who is this administration’s Schlesinger?
After the U.S. Capitol Building was attacked on January 6 in Washington, D.C., chaos reigned and the question became still more urgent. Fearing for their lives, senators and representatives fled the chambers and hid in safe rooms while the Capitol Police were overrun by violent Trump supporters. A Confederate flag entered the building’s halls, and the president spoke of his love for the insurrectionists.
“For those who actually entered the Capitol, while Congress is in session, that threatens our continuity of government. And that is truly an act of sedition. That has crossed the line of protest to what is clearly an act of sedition,” Admiral Paul Zukunft, former commandant of the U.S. Coast Guard, told VICE News.
Some of the most urgent questions to emerge from this violent chaos have involved the military. Vice President Mike Pence's role in orchestrating the military response to the disaster, and an extraordinary statement in which Speaker of the House Nancy Pelosi said she had spoken to the Chairman of the Joint Chiefs of Staff about essentially removing the president from the chain of command, only emphasized what have been the central questions all along: If Trump were to order a nuclear strike, or order the military to support him as he seized power or act against his political enemies, what would happen? And what would attempts to prevent these unnervingly plausible scenarios do to the constitutional order? VICE News spoke with former four-star generals and admirals, military experts, and others about the events of the last week, the chain of command, the institution of the military, and the legality of questionable orders. The consensus was that citizens should be less concerned, for the most part, about the military following unlawful orders, and more interested in the chain of command structure and governmental checks and balances created to ensure that the military wouldn’t have to concern itself with illegal or immoral orders.
“The orbital dynamics of government are very important,” a former senior military official told VICE News. “When they're suspended or usurped by the president or anyone else—by a member of Congress or by an appointed secretary or confirmed one—if they're usurped, then you create a different gravitational field and it puts other things in a dangerous way."
Over the past week, Pelosi has been searching for her Schlesinger—a figure willing to more or less explicitly, if not legally, strip the president of his constitutional powers as commander in chief. Her search has been, experts say, misguided.
On Friday, Pelosi spoke with General Mark Milley, the Chairman of the Joint Chiefs of Staff, to, in her words, “discuss available precautions for preventing an unstable president from initiating military hostilities or accessing the launch codes and ordering a nuclear strike.” This request, Zukunft said, was “unprecedented.”
“That is very precedent-setting to go directly to the chairman of the Joint Chiefs on a delicate, very sensitive matter like this,” said Zukunft. “I’m not sure if that was for publicity purposes. Normally something that sensitive in nature would not be shared in the public domain, but it was.” Zukunft believes it may have been “fodder for invoking the 25th Amendment.”
While Pelosi is, as a member of Congress, free to express her concerns, it should first be clear that nuclear orders would not be Milley’s to resist. He acts in an advisory capacity to the president, and is not in the chain of command for a nuclear launch, nor do orders pass through the chairman of the Joint Chiefs of Staff when going from the commander in chief to military personnel. “Even if they did,” said Kori Schake, the director of foreign and defense policy at the American Enterprise Institute, “the Speaker of the House is not in the chain of command, so asking for an extraordinary reassurance from a military officer that they would refuse to obey an order from the commander in chief is very dangerous ground in civil-military terms. We have a chain of command for a reason. It is very explicit for a reason.” (In response to Pelosi, Milley reportedly spoke with the speaker about “the process of nuclear command authority.”)
“But it’s not up to the military to decide he is unstable. Until he is declared unstable or unfit for the presidency through the 25th Amendment, the military is still under obligation to him.”
“Speaker Pelosi, making sure he, the president, can’t do anything with the nuclear codes, it doesn’t quite work like that," said the former senior military official. "I think it was more a matter of expressing her grave concern that we have an 'unstable president' who could order military action, including nuclear weapon use. But it’s not up to the military to decide he is unstable. Until he is declared unstable or unfit for the presidency through the 25th Amendment, the military is still under obligation to him.”
With regards to launching nuclear weapons, the president is under no obligation to take the advice of his military advisors. But while Article II of the Constitution vests executive power with the president, including the use of nuclear weapons, military experts are clear that launching a strike is not just a matter of pushing a button. There are conversations and checkpoints that military leaders can require that would, while not disobeying the order, delay its being carried out.
“Can the president place an order upon the military to perform? Absolutely. But it’s not as simple as that,” said Zukunft. Consulting lawyers, engaging in extensive conversations, and initiating a legal review would all be allowed if the president were to order a nuclear strike. The retired admiral also does not believe a launch is imminent: “The likelihood of that happening, I would put at zero,” he said. “In the absence of a first launch against the United States, there's a much more deliberative process before we would even consider a nuclear option. So I'm content that there are safeguards in place that would prevent that from happening.”
While Schake believes the president is dangerous, she also doesn’t think a launch is forthcoming. “I think the president is such a malignant narcissist, and is much more concerned about himself than he is about American interests or the shape of the world. So I would be more concerned about him doing domestic damage, rather than him doing international damage.”
This isn’t, of course, the first time the public has been concerned about a possible nuclear launch during Trump’s presidency; the commander in chief publicly threatened the use of nuclear weapons against North Korea in 2017. The “fire and fury” promised was never realized.
The remote nightmare scenario of Trump ordering the use of nuclear weapons has seized the public's imagination, but there are many other uses to which he could put his authority over the coming week. There, too, the only simple answer involves Trump being stripped of his powers by civilians.
Part of this complexity has to do with confusion about lawful and unlawful orders. The distinction is hardly always clear-cut. As a result, a group of lawyers created an organization to assist military personnel who might question the legality of the orders they are given. The Orders Project, founded in response to the Black Lives Matter protest in Lafayette Square and the use of military force against it, exists to advise. “If the Nation faces civil unrest requiring the deployment of military personnel or federalized National Guard personnel, questions may arise as to the legality of orders they receive,” the project's website states. “Military personnel should be fully informed of their rights and responsibilities before taking any action that might expose them to criminal prosecution or adverse personnel actions.”
Eugene Fidell, a senior research scholar at Yale Law School and adjunct professor at New York University Law School, is one of the founders of the project. “We strongly believe that military personnel should seek legal advice within the military. They may not be able to get it in real time, or they may want a second opinion. Or they may be uncomfortable asking some questions,” said Fidell. “Accordingly, we created the Orders Project that would help connect GIs with questions about lawful orders with former judge advocates.”
“It is the responsibility for every member of the American military to refuse to obey unlawful or immoral orders.”
Orders, Fidell said, are presumed to be lawful. “What people do not have is the privilege of saying they disagree with an order on policy grounds. So if, for example, you felt a particular military operation was unwise, that's not a defense at all,” he added. While the distinction can sometimes be confusing, Fidell said, there are some easy cases. “A hypothetical we came up with was President Trump held a political event at the White House, and asked a Marine band to play at the event. What if you’re the piccolo player in the band, and you’re ordered to play at a political event at the White House? Well, that would actually be an illegal order in my opinion because it is not serving any military purpose.”
“It is the responsibility for every member of the American military to refuse to obey unlawful or immoral orders,” said Schake. “It is the expectation of the American people, that the men and women in its military service will always exercise their judgment."
The ambiguity here creates the context within which Pelosi’s apparent request that military leaders agree to disobey lawful orders could set a dangerous precedent regarding the chain of command and oversight. Military leaders are already required to disobey orders that would, for instance, keep Trump in power despite losing the presidential election. In an opinion piece in the Washington Post last week, all the former living defense secretaries laid out that issue exactly, and stated that “Involving the military in election disputes would cross into dangerous territory.” Asking them to go further in preventing an unstable president from abusing his authority, experts say, puts undue pressure on the military, as opposed to the Cabinet and Congress, which have the option to invoke the 25th Amendment or engage in impeachment proceedings.
“I would have advised Speaker Pelosi against making that call,” Fidell said. “The speaker of the house is not president, and until the people in front of her in the queue are disqualified, she is the speaker and should not be doing things that would disrupt the normal chain of command.”
In many ways, Pelosi’s letter, and the broader concerns over how long it took the National Guard to deploy to the Capitol, and under whose authority, express a belief that military leaders have limitless power to curb or abet the president, or even enact their own independent procedures. But when it comes to domestic law enforcement, the military is usually only a supporting actor. “A good example of that is the Coast Guard that supports the Secret Service when President Trump is at Mar a Lago,” said Zukunft. "We send an armada of boats patrolling the water. And we can use up to deadly force if necessary, if someone's trying to breach that property, and cause harm to our commander-in-chief.” In the case of the Capitol insurrection, while he added that there was clearly “not a good preparation plan in place,” it was not a bad thing for the military to have taken a back seat.
“We don't want the military leading this,” he said. “We don't have the authority to arrest and prosecute, that really comes under the Department of Justice.”
Part of the reticence about military involvement stems, former leaders said, from critiques of military involvement during the summer’s peaceful Black Lives Matters protests in Washington, D.C.
A former defense official agreed: “We don't want the U.S. military to be involved in what are inherently political expressions. It was only when the situation devolved to the point where law enforcement needed help. That’s the issue.”
Part of the reticence about military involvement stems, former leaders said, from critiques of military involvement during the summer’s peaceful Black Lives Matters protests in Washington, D.C. “I think that the events of the summer impacted the approach the military was expected to take,” General Vincent K. Brooks told VICE News. The former head of U.S. forces in Korea has written about the “breach of sacred trust” that took place in June.
Another defense official agreed with his assessment. “We know that there was great criticism about the visibility of military capabilities in Washington, D.C. in the summer of 2020,” they said.
Even so, “The numbers and the potential for violence was underestimated,” said Zukunft. “Whenever we would have a hurricane approach and I was commandant, I threw everything we had at it … If you don’t need it, you can start pulling it back. Once you become overwhelmed at an event, you’re never going to overcome whatever that spread is, in this case entering the Capitol building.”
While concerns about the timeliness of the National Guard's response once the order to deploy was approved have proliferated, the issue, some say, was in the planning stage. “It was a conscious decision by the mayor, and by the Justice Department and by the Defense Department, to lead the response to Wednesday's activities in the planning phase, said the former defense official.” Prior to last Wednesday, D.C. Mayor Muriel Bowser had requested 340 National Guard troops, and though calls for military intervention were made when the Capitol was overtaken, the Guard did not arrive at the scene until hours later. “We saw unfortunate consequences here that came from an inadequate degree of security,” said Brooks, regarding the Capitol invasion. Outgoing Capitol Police Chief Steven Sund told the Washington Post that he faced pushback from the Pentagon while requesting additional support.
Schake said that part of this confusion has to do with a lack of information and awareness about the military is and is not authorized to do. While the Department of Defense did produce a timeline that, if accurate, outlines the steps they took before and during Wednesday’s insurrection, Schake believes the government should be giving more information to the public than they currently are. “Again, it’s not wrong for people to be suspicious of their motives and their actions … I would like to see the Secretary of Defense holding a press conference and answering people's questions. I'd like to see General Milley standing beside him and explaining the chain of command to the American public.”
“Our military is no different, and no better, than the rest of American society,” said Schake. “We shouldn't mythologize them to such an extent that we don't appreciate that they're just like us.”
There have also been widespread concerns about the apparent breakdown of the chain of command on Wednesday. It has been reported that Trump abdicated his responsibility to authorize the Defense Department to send the National Guard to the Capitol, and that Pence had to do so in his stead. Additionally, the New York Times has reported that Pat Cipollone, the White House counsel, had to intervene after Trump initially “rebuffed and resisted” the approval of the order. In a statement that day, Acting Secretary of Defense Christopher Miller did not mention the president, and instead said, “Chairman Milley and I just spoke separately with the Vice President and with Speaker Pelosi, Leader McConnell, Senator Schumer and Representative Hoyer about the situation at the U.S. Capitol. We have fully activated the D.C. National Guard to assist federal and local law enforcement as they work to peacefully address the situation.”
“We’re off in the twilight zone, when I saw [Pence approving the National Guard]. That is not how this machinery is supposed to function.”
A retired senior military officer with national security experience told VICE News that Pence authorizing or approving a response from the National Guard was “extraordinary.”
“The vice president is not in the military chain of command. So, the president, who is the commander in chief of the armed forces and of the National Guard of the District of Columbia, is where the authority is vested,” they said. “And that's passed to the secretary of defense, but the secretary doesn’t get to commit without the authority of the president.” Further, the officer said that as Miller is unconfirmed, he doesn’t “have the same constitutional authority.”
“We’re off in the twilight zone, when I saw [Pence approving the National Guard]. That is not how this machinery is supposed to function,” said Fidell. However, he said, “The danger to our society and to our democracy is not an out-of-control military. It’s from an internal rebellion that has been enabled, fueled, and accelerated by an out-of-control chief executive, who should have been checked and wasn’t. These are issues of a political nature rather than a strictly legal nature.”
Despite the chaos on Wednesday, some say the military chain of command did not break down.
Another former defense official told VICE News, “It's not at all extraordinary for the secretary of defense to be the one to sign the orders for that deployment.” While the vice president is not in the chain of command, they said, “Secretary Miller acted within his authority for that deployment.”
“As long as the president is president, and is not incapacitated,” said Schake, “Vice President Pence is irrelevant to the chain of command.” Still, she added, “Because D.C. isn’t a state, and the mayor doesn't have the authorities of a governor over the national guard, that authority rests with the Secretary of Defense. Since at least before last summer, the Secretary of Defense had passed that authority down through the chain of command to the Secretary of the Army. So, the Secretary of the Army himself could have authorized the D.C. Guard to act.”
Whether the president should have been involved from an engaged leadership perspective, a former official added, “is different from whether his involvement was necessary from a legal perspective. And it wasn't. What [others have] tried to do was confuse the image of the president being disengaged, and then somehow allude to the deployment was not really proper because he was disengaged. Those are two fundamentally different issues.”
This distinction is described in Executive Order 11458, about “the supervision and control of the National Guard in the District of Columbia.” “The Secretary of Defense,” the order states, “is authorized and directed to supervise, administer and control the Army National Guard and the Air National Guard of the District of Columbia (hereinafter 'National Guard') while in militia status.”
Over the past few weeks, however, the president has removed officials capable of making these decisions, like Defense Secretary Mark Esper, who was fired in November, from their roles. This has made it difficult for the public to trust that the Pentagon is working as it should, noted Schake. “The President fired the secretary of defense in November, and put unqualified acting civilian leaders into the Pentagon, so there's reason for suspicion,” said Schake. “People aren’t crazy to be raising these questions.”
“What the president (and those around him) has done is dismantle the statutory authorities that exercise control over the military. That’s very dangerous,” a retired senior military leader told VICE News.
“Normal institutional arrangements have been permitted to atrophy,” said Fidell. “The full mischief becomes especially apparent when the system as a whole has been as stressed as Trump has stressed it. This parade of 'actings' has effectively disabled the key function of the upper house of the legislature.”
“We can say that our democracy was bent, but it wasn't broken. At the end of the day, it has proven to be resilient.”
Now, with threats of further violence from the same insurrectionists that stormed the Capitol, 15,000 members of the National Guard will possibly be deployed during the inauguration. The need to do so is deeply disturbing, though not surprising, to those who served. Former generals also spoke with VICE News about their deep sadness and disappointment after Wednesday’s attack. “This was a renewal of the dismay and disappointment from this summer, and I would add disgust in this case,” said Brooks. “The executive branch declared war on the legislative branch in my country.”
Zukunft said he was “incredulous” at Wednesday’s attacks. “Here we are, in the United States of America, witness to an insurrection upon our democracy,” he said. (In September, Zukunft endorsed President-Elect Joe Biden, citing “an insurgency, if you will, on our constitutional rights and more power being centralized at the executive level that has really divided our nation,” in an interview with Politico.)
Retired General Joseph Dunford, former Chairman of the Joint Chiefs of Staff, told VICE News, “Wednesday was a sad day for our country in terms of violence that took place at the Capitol and what that represented. On the other hand, having a little bit of time to reflect, I also am encouraged by the strength of our institutions. And when I look back at the judicial actions taken, actions at the state level, and the ultimate action taken by the Congress on Wednesday evening and into Thursday morning, I believe we can say that our democracy was bent, but it wasn't broken. At the end of the day, it has proven to be resilient. That doesn't mean that we haven't identified some fundamental issues that need to be addressed with a sense of urgency. But I do think we can say that the institutions that were intended to get us to the right place during difficult times actually worked.”
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