A Veteran’s Warning: Obedience is Not an Excuse
A legal and moral duty to resist
Editor’s note: This post was originally published on Substack on The Long Watch.
Bottom Line Up Front (BLUF)
The President has ordered at least 2,000 National Guard soldiers to California citing his authority under 10 U.S.C. 12406. But 10 U.S.C. 12406 is clear regarding its operation: “[o]rders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia.”
Further, it does not include a provision allowing for soldiers to aid in civil law enforcement, but in a protective function.
Soldiers activated under federal control, in a State with a non-consenting governor, may not be used to aid in civil law enforcement unless and until the Insurrection Act is invoked.
The Presidential Memorandum ordering troops to California was careful to cite 10 U.S.C. 12406, representing a protective function outside the scope of the Insurrection Act. DHS Secretary Noem told CBS’s Face the Nation that the troops were sent to “keep the peace” at protests and ensure “law and order.” Civil law enforcement functions.
We need clarity and a unified voice from the President and his Cabinet.
Just following orders is not a legal defense
When I swore an oath to support and defend the Constitution of the United States, I understood that duty might one day require sacrifice.
What I didn’t fully appreciate, and certainly not then, was that this duty might also require disobedience.
The Nuremberg Principles, adopted after World War II, make one thing unmistakably clear: “just following orders” is not a legal defense for war crimes. This was not simply a symbolic statement to prosecute Nazi war criminals, it was and is binding international law.
Principle IV of the Nuremberg Chapter
“The fact that a person acted pursuant to the order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
That principle doesn’t just sit in the history books, it lives in every decision made by a soldier, sailor, airman, or marine. Through living the values of Honor, Courage, and Commitment.
If you are in the military, your oath is to the Constitution, not to any single leader, political party, or federal agency. The Constitution remains the supreme law of the land.
This principle becomes especially urgent when peaceful protesters, our fellow Americans, are targeted by the very institutions sworn to protect them. The unlawful targeting of civilians at legal demonstrations is not a gray area. It is a violation of the law and an indicator of an authoritarian. And history will not look kindly on those who comply without question.
What You Need to Know
Under Article 92 of the Uniform Code of Military Justice (UCMJ), a service member can be prosecuted for failure to obey a lawful order or regulation. But that doesn’t mean all orders are lawful. In fact, refusing to obey an unlawful order is not a violation of Article 92—it is your duty.
An unlawful order is one that:
Violates the Constitution or federal law,
Infringes on an individual’s rights, or
Contravenes ethical standards or military regulations.
A commanding officer cannot legally compel you to:
Target civilians,
Suppress lawful speech or assembly, or
Use force against peaceful Americans exercising their constitutional rights.
What You Can Do
Trust your gut. If something feels wrong, it might be.
Know your rights and responsibilities. Brush up on the Constitution and UCMJ. Call the GI Rights Hotline at 1-877-447-4487.
Call your Inspector General (IG). Keep their hotline number handy. If you’re uncertain about the legality of an order, ask.
De-escalate. If Americans are protesting peacefully, meeting them with hostility only serves to erode the Constitution you swore to uphold.
In moments of confusion or pressure, remember this: you are not alone. Others have faced these choices before. Moral courage, not blind compliance, is what separates honorable service from historical shame.
Be safe. Be reasonable. And above all, be faithful to your oath.
The uniform means something. And that something is protecting the Constitution.
Call your representatives
U.S. Senate switchboard operator: (202) 224-3121
U.S. House switchboard operator: (202) 225-3121
Call. Speak to your friends and neighbors. Refuse silence.
Demand justice. Demand accountability. Join a non-partisan group like 50501 to protest antidemocratic and illegal actions.
Posse Comitatus
When National Guard personnel are called into federal service under 10 U.S.C. 12406, the orders must be issued through the Governor. The President may not “willfully use [military forces] as a posse comitatus or otherwise to execute the laws.”
The Posse Comitatus Act works to ensure constitutional safeguards remain protected. “[E]xcept in cases and under circumstances expressly authorized by the Constitution or Act of Congress.” 10 U.S.C. 12406 does not permit the actions of the President.
The President can activate the National Guard under Title 10 authority against the wishes of a governor, but doing so requires invoking the Insurrection Act. Governor Newsom has condemned the order as an attack on his State’s sovereignty.
The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law.
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