Military Law And Presidential Accountability: Can They Co-Exist?

The U.S. President is the Supreme Commander of the Armed Forces, but this role is a civilian one. The President is not a member of the military and is therefore not subject to military law. However, this does not mean that the President has free rein to use the military as they see fit. The Posse Comitatus Act of 1878 bars the use of federal troops in law enforcement, and the Insurrection Act, which allows the President to deploy troops on U.S. soil, has been criticised for being vaguely worded. The War Powers Resolution of 1973 was passed by Congress to halt the erosion of its ability to participate in war-making decisions. While the President has the power to direct military operations, they cannot infringe on the exclusive powers of Congress or other provisions of the Constitution.

Can a President be tried under military law?

The US President is the Supreme Commander of the Armed Forces

The President's role as Commander-in-Chief comes with a range of responsibilities and powers. They may require the written opinion of the principal officer in each of the executive departments on matters relating to their duties. The President also has the power to grant reprieves and pardons for offences against the United States, except in cases of impeachment. Additionally, the President can establish and prescribe the jurisdiction and procedure of military commissions and tribunals, employ secret agents to gather information, and authorise commercial intercourse with the enemy, albeit with the assent of Congress. They may also requisition property and compel services from American citizens and friendly aliens within the theatre of military operations.

The President's power to deploy the military domestically has been a contentious issue. While the President can deploy troops within the US, this represents a departure from American tradition and carries inherent risks. The Posse Comitatus Act of 1878 generally bars the use of federal troops in law enforcement actions. However, the Insurrection Act and possibly Title 32 leave it largely up to the President's discretion to use armed forces domestically, and there is little concrete legislation to prevent the abuse of this power.

The President's orders must be lawful, and military personnel are not required to follow unlawful orders. The oath of enlistment asks service members to follow orders "according to regulations and the Uniform Code of Military Justice (UCMJ)". While Articles 90 and 92 of the UCMJ refer to obeying superior officers, these refer only to lawful orders. The "Nuremberg defence", or the idea that one was simply "following orders", is not considered a legitimate defence.

The President's authority is limited by the Constitution and international law

Firstly, the Constitution outlines specific eligibility requirements for the office of President, including age, residency, and citizenship. It also provides for the removal of the President through impeachment and conviction for treason, bribery, or other high crimes and misdemeanors.

Secondly, the Constitution divides war powers between Congress and the President, requiring the commander-in-chief to be a civilian. While the President has the authority to deploy the military domestically under certain acts, such as the Insurrection Act, this power is not absolute and is subject to interpretation.

Thirdly, the Posse Comitatus Act of 1878 generally prohibits the use of federal troops in law enforcement actions, maintaining the traditional separation between the military and domestic policing.

Additionally, the military is expected to follow lawful orders and abide by the regulations and the Uniform Code of Military Justice (UCMJ). The Nuremberg defense, or following orders, is not considered a valid justification for unlawful actions.

International law also plays a role in limiting the President's authority. For example, the modern development of international war crimes commissions and the punishment of violations of international law provide a legal basis for disobedience to orders that violate international norms.

Overall, the President's authority is constrained by constitutional checks and balances, eligibility requirements, limits on military power, and the need to abide by domestic and international laws. These limitations aim to prevent the abuse of power and protect the rights and autonomy of citizens and states.

The Insurrection Act and Title 32 give the President extensive powers to deploy the military domestically

The Insurrection Act of 1807 is a federal law that empowers the US president to deploy the US military and federalised National Guard troops within the United States in certain circumstances. These circumstances include suppressing civil disorder, insurrection, or rebellion. The Act provides a statutory exception to the Posse Comitatus Act of 1878, which limits the use of military personnel for law enforcement purposes within the United States.

The Insurrection Act grants the president emergency powers to deploy US troops domestically against US citizens. It is the primary exception to the Posse Comitatus Act, which prohibits the use of the US military to enforce state and local laws. The Insurrection Act can be invoked when local and state authorities are unable to maintain law and order.

The Act allows the president to deploy troops to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" in a state that "opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws." This broad language gives the president significant power to decide when and where to deploy US military forces domestically.

The Posse Comitatus Act of 1878 bars the use of federal troops in law enforcement

The Posse Comitatus Act of 1878 is a federal law that bars the use of federal troops in civilian law enforcement. The Act embodies an American tradition that views military interference in civilian affairs as a threat to democracy and personal liberty. The term "posse comitatus" refers to a group of people mobilized by a sheriff to suppress lawlessness in a county. The Act prohibits the use of soldiers as a posse comitatus, instead of civilians.

The Posse Comitatus Act was passed in 1878 after the end of Reconstruction and the return of white supremacists to political power in the Southern states and Congress. The law sought to prevent the federal military from being used to establish Jim Crow laws in the former Confederacy. While the Act has been updated several times, its core principle remains: the military should not interfere in the affairs of civilian government. This principle is reflected in the Constitution's division of power over the military between Congress and the President.

The Posse Comitatus Act specifically applies to the Army, Air Force, Navy, Marine Corps, and Space Force. However, there are exceptions to the law, such as when the use of federal troops is expressly authorized by law or when Guard personnel are called into federal service. For example, the Insurrection Act allows the President to deploy the military to suppress an insurrection or enforce federal law in a state.

Despite these exceptions, the Posse Comitatus Act remains an important safeguard against the use of the military as a domestic police force, which the Founding Fathers believed could be a tool of oppression and a threat to the autonomy of individual states. However, some argue that the Act's limitations on the President's power to use the military domestically are dangerously unclear and require further legislation to better define them.

In conclusion, the Posse Comitatus Act of 1878 bars the use of federal troops in law enforcement, except in specific circumstances authorized by law. This Act reflects the American tradition of suspicion towards the military's involvement in civilian affairs and serves as a protection against the potential abuse of power by the President.

Military commanders are governed by policies and directives from civilian leaders

The United States Constitution divides war powers between Congress and the President, and requires that the commander-in-chief always be a civilian. Military commanders are governed by policies and directives from civilian leaders, and military officers swear an oath to support and defend the Constitution, not an individual or office. This principle of civilian control of the military is shared across all three branches of the US government and is ultimately wielded by the will of the American people as expressed through elections.

Civilian control operates within a constitutional framework under the rule of law, and military leaders must be diligent about keeping the military separate from partisan political activity. While the military should play a supporting role to law enforcement, there are significant limits on the public role of military personnel in partisan politics. Military officials are required to carry out legal orders, even if they doubt their wisdom, and it is the responsibility of senior military and civilian leaders to ensure that any order received from the President is legal.

In the case of a potentially unlawful order from the White House, there is a review process to determine its legality. While there are few concrete legal protections to prevent a President from abusing their power, the military has an obligation to assist civilian leaders in developing ethical directives and implementing them, provided they are legal.

In the context of a President issuing potentially illegal orders to the military, such as former President Donald Trump's indications of using the military on US soil, there are safeguards in place to protect against this. The Posse Comitatus Act of 1878 generally bars the use of federal troops in law enforcement actions, and the military's oath of enlistment requires service members to follow orders "according to regulations and the Uniform Code of Military Justice." Legal precedence holds that the "Nuremberg defense" of just following orders does not absolve troops, and broader legal principles suggest that legality may not be the right framework to assess such a scenario.

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