Supreme Court immunity ruling raises questions about military orders

The Supreme Court’s surprising decision granting presidents immunity from prosecution for official acts raises serious questions about orders issued by the commander in chief to the military, especially if those commands clearly violate U.S. law or international law.

A commander-in-chief with broad immunity from criminal prosecution would have more power and leeway to issue controversial orders that the military is, in most cases, obligated to carry out according to the chain of command.

The Supreme Court ruling, which came in response to a case related to former President Trump’s efforts to overturn the 2020 election, raised general concerns about an abuse of power using the military, but also specific concerns about Trump, who promised to take revenge. if he takes back the White House.

While there may be legal challenges in the future, experts say the ruling does not extend immunity protections to commanders and enlisted personnel who carry out the president’s orders.

Victor Hansen, a law professor at the New England School of Law in Boston, explained that the military still has to adhere to legal standards even if the president doesn’t, and said the Supreme Court’s decision “reverses the dynamic.”

“Now we have subordinates who don’t have all the authority, but they have all the responsibility,” said Hansen, who had a 20-year career as a military lawyer in the U.S. Army. “And you have one guy at the top who has all the authority and none of the responsibility.”

“It is, in my humble opinion, an absurd and harmful decision,” he added.

The ruling came in response to a challenge from Trump’s legal team over a case in Washington, D.C., courts related to the Jan. 6, 2021, riot and other efforts by Trump and his allies to maintain power after the 2020 election. His lawyers now argue that the decision should be applied to a separate case in Florida, where he is accused of illegally keeping confidential records, including national security documents.

During legal arguments in January, Trump’s lawyers argued that a president should enjoy broad immunity from criminal prosecution as a former executive even if he ordered the assassination of a political rival using the elite SEAL Team Six.

Trump lawyer John Sauer told a three-judge panel on the Washington, D.C., Circuit Court of Appeals that a former president can only be criminally prosecuted if he has been tried and convicted by the Senate.

The discussion at the time was widely considered ridiculous; James Pearce, a lawyer for special counsel Jack Smith, who is overseeing Trump’s federal convictions, told the justices that Sauer had outlined a “scary future.”

“What kind of world are we living in…if a president orders his SEAL team to kill a political rival and then resigns or isn’t impeached — isn’t that a crime?” Pearce said at the time.

Trump’s arguments failed in the D.C. appeals court, leading to an appeal to the Supreme Court, which has a conservative majority after Trump appointed three lifetime justices to the high court.

The high court ruled 6-3 on July 1, along ideological lines, to give the president absolute immunity for actions taken under “fundamental constitutional powers” ​​that are granted after taking the Oval Office.

US Chief Justice John Roberts argued that a president is already immune from civil liability for actions taken while in office and that protection should be extended to criminal prosecution to ensure that the executive branch can effectively carry out its functions without fear to be processed.

But the liberal justices sharply disagreed. Justice Sonia Sotomayor, in a scathing dissent, referred to the SEAL Team Six scenario or a commander in chief organizing a military coup, saying the Supreme Court gave the president a “loaded gun” by granting such broad immunity.

“Even if these nightmare scenarios never happen, and I pray they never do, the damage has already been done,” she wrote. “The relationship between the president and the people he serves has changed irrevocably. In every use of official power, the President is now a king above the law.”

Congressional Democrats also reacted with alarm after the decision.

“According to this decision, if a President, in his official capacity, orders the military to kill other Americans – judges, elected officials, reporters, your neighbor – they can do it,” said Rep. Zoe Lofgren (D-Calif.). “I think most Americans, myself included, think this should be a crime.”

While a president can still be criminally prosecuted for unofficial acts, any order issued to the military is a clear official act. A US military officer would not enjoy the same immunity as the president, but the White House could also offer pardons for being loyal. However, a federal pardon would not apply to violations of state law.

Geoffrey Corn, director of the Center for Military Law and Policy at Texas Tech University School of Law, said the most extreme scenarios, such as using a Navy SEAL team to assassinate a political rival, are unlikely because a president would obviously want to avoid breaking the law, even if he faces no legal consequences.

Instead, he pointed to more “subtle” scenarios, like when Trump tried to invoke the Insurrection Act in 2020 to quell Black Lives Matter protests with the military and National Guard.

“This encourages the abuse of power. If you’re the president and you don’t perceive any adverse criminal consequences from ordering what all the lawyers around you are saying is illegal,” Corn said, “and you don’t really care about the political consequences because you’re not afraid that you’re going to be removed. for impeachment, what’s stopping you?”

“By turning the military into a tool to advance your political agenda, this represents a risk,” he added.

The U.S. military is required to carry out lawful orders unless they are clearly illegal, although making that distinction has always been murky.

The Pentagon and each of the military branches have lawyers in the Judge Advocate General’s Corps (JAG) for the military to consult in such cases.

Pentagon press secretary Maj. Gen. Pat Ryder noted after the ruling that the military follows the Uniform Code of Military Justice, which sets out criminal law and specific military codes, such as desertion or disobedience to a superior commander.

Ryder said lawyers are always available and that doesn’t change after the Supreme Court ruling.

“This will allow any leader, regardless of the decision or order they are contemplating, to make informed legal and ethical decisions,” Ryder said at a briefing Tuesday.

In addition to White House lawyers, who are likely to justify a president’s decision, a set of high-ranking lawyers, such as the Army’s general counsel, may also present controversial or illegal orders.

This could conflict with JAG lawyers at the lower end of the chain of command, who may see a clearly illegal order, thus creating “chaos” in the ranks, Texas Tech’s Corn said.

“Ultimately, the person at greatest risk is the commander who… has to decide, ‘Am I going to obey this order and risk my own’? [life] and run the risk that, in the future, a new administration comes in and says that everyone who was involved in implementing this order committed a crime?’” he said.

“Or will I disobey the order and risk the current president suing me for willful disobedience of an order?” he added.

Eugene Fidell, a visiting professor and senior fellow at Yale Law School, said the Supreme Court has “cast the dice for future presidents” and will force the military to roll the dice as well.

“People are trained to follow orders,” he said, “not to resist them.”

This story originally appeared on thehill.com read the full story