Tweets as Lawful Orders
I haven’t posted in a while — life keeps getting in the, particularly now that I’m in a part-time grad program, plus work, husbanding, parenting, etc. But in order to get back on track, and energized by Gene’s zoom call yesterday, I wanted to republish a piece here from Task and Purpose.
The discussion from a couple other fora have suggested I’m a Trump apologist. Nothing could be further from the truth. What I’m setting out is the proposition that 45, as POTUS, has certain constitutional authorities, that when he gives a public direction, no matter the forum, the military has a duty to understand that direction from the CINC as an order and, barring manifest illegality, to execute it, or at least to clarify it. I keep hearing “that’s not how orders work” — and that’s true, usually. But it doesn’t HAVE to work that way, as a matter of the President’s Article II CINC power. The order is complete the moment issued.
I left unspoken the obvious conclusion that this interpretation *should* serve as a warning to the President to be circumspect with his Tweets, because there are a million men and women under arms duty bound to carry out his orders. This is why Presidents in the past have been very deliberate and disciplined with their communications — to ensure the messages they desire to be communicated are communicated, with less potential for miscommunication or misinterpretation.
Here’s the piece: “Yes, the President’s tweets count as legitimate orders, no matter how confusing they seem.”
The President of the United States has occasionally adopted an unorthodox method of providing guidance to military commanders – via Twitter. Contrary to some opinion, these tweets are legally effective orders under military law the moment they are issued, despite their non-conformance with normal processes and their untraditional nature.
For example, on April 22, 2020, responding to provocations by Iran, which recently resumed harassing U.S. Navy ships in the Persian Gulf with small, fast attack boats, President Trump issued a tweet noting “I have instructed the United States Navy to shoot down and destroy and all Iranian gunboats if they harass our ships at sea.”
This wasn’t the first time: a few months ago, in the wake of his grant of clemency to convicted Navy SEAL Chief Petty Officer Eddie Gallagher, President Trump tweeted a directive to the Navy to discontinue administrative proceedings to strip the special operator of his Navy SEAL trident, evidence of his qualification as a SEAL. And in July 2017, the president lit the news cycle afire with an early morning series of tweets purporting to ban transgender persons from serving in the armed forces.
Each time, the news was filled with statements from senior military leaders saying no policy has changed as a result of the tweet, or minimizing the legal effect of the direction issued by the President. In response to the Iranian boat engagement tweet, Deputy Secretary of Defense David Norquest noted “the President issued an important warning to the Iranians. What he was emphasizing is, all of our ships retain the right of self defense.”
But in fact was that all he was saying? The tweet, taken literally, removes a commander’s discretion not to escalate a provocation by requiring the Navy to “shoot down and destroy” Iranian gunboats harassing US Navy ships.
What gives? Did the president issue an order, or didn’t he? Of course he did: each of these tweets is a facially valid order, on a matter clearly within his authority as Commander in Chief, and legally effective irrespective of form. How it was handled and acknowledged by DoD is a different question.
At maximum, the tweet orders were legally valid and operative when published. At a minimum, they shifted the burden to Pentagon leaders to seek immediate clarification in the same way as though they might have received an unclear verbal or written order, irrespective of form.
Much more at the link.
This is all well and good, but it presupposes that the CinC is sane and knowledgeable. Trump is neither. Remember that he publicly speculated on the possibility of cleansing one’s lungs with Lysol.
And what is the military to do if the tweet is deleted? And what if the person who should act on the tweet has been blocked? And what if he leaves his phone somewhere or his Twitter account is hacked–is the person who issues the tweet effectively president?
@CSK: @Kit: All these are reasons why Tweet Orders are bad ideas. But none of them detract from their constitutional and legal significance.
@CSK: True. But it doesn’t affect the constitutional legitimacy of the order.
Let me offer an analogy I hope may clarify. If a captain tells a lieutenant, “Paint the fence.” the lieutenant has received an order and must paint the fence or face charges. If the captain observes to the lieutenant, “This place would look better with a fresh coat of paint on the fence.” a bright, ambitious shavetail will paint the fence. But he has no legal obligation to do so. If Trump were to tweet, “We will shoot down Iranian gunboats.” I can see where it might constitute an order, although I suspect compliance would take the form of artfully written rules of engagement. But surely if Trump were to tweet, or even state face-to-face with the CNO, “I hate those Iranian gunboats.” no one is legally obliged to do anything.
@gVOR08:
Well, the difference with Trump is that he’s like a Mafia don. He never says explicitly what he wants, so he can’t be held accountable. The experienced Trump soldier would read “I sure hate those gunboats” as “Sink those f*cking things.”
Only legal orders must be obeyed. Lacking a declaration of war or relevant authorization for the use of military force I wonder if an officer could make the case that an order to kill is illegal under a strict reading of the Constitution? What if Trump tweeted that, ‘if he annoys us we are going to kill Boris Johnson?’ Could a soldier interpret that as an order to assassinate BoJo? After all, ‘harass’ and ‘annoy’ are equally vague.
Back in my grad school days in a course on bureaucratic behavior, there was an observation in one of the texts, that underlings use an informal methodology to determine what an unclear superior actually wants. The process runs something like this using @gVOR08 example
Senior: That fence needs to be painted- Paint it. Senior walks away
Underling: Buried under a wealth of priorities, nods and forgets about the fence.
Several weeks later
Senior: Why isn’t that fence painted?
Underling: (Fence? Oh Yeah) It’s on the schedule sir.
Following week
Senior: That fence isn’t painted
Underling: Starting tomorrow sir.
Tiny’s tweeted instructions seem to be responded to in a similar manner.
Tiny: We’re banning immigrants
Reality: a small subset of immigrants are banned and as various interest groups intervene that subset decreases in size.
Tiny: sink those Iranian gunboats.
Pentagon: reiterates the rules of engagement to commanders.
It is illustrative that Trump likes Mutiny On The Bounty.
The guy he identifies with is not Fletcher Christian.
There is a sentence in that article which could make it problematic as I understand the nature of Twitter:
I bolded the problem. Hard to imagine an officer getting hammered for not instantly obeying an order issued outside of the normal chain over a channel of communications as tamper-able as Twitter. IMO Twitter doesn’t come anywhere close to meeting all four criteria.
@gVOR08: The lieutenant may have received an order. But when the sergeant or corporal shows up to requisition the paint for the fence, the clerk may say, “You’ll need a form signed by the captain.” People made fun of Radar in MASH, but the military lives by its paper trails.
I think you are making a theoretical argument but then applying it to a real world situation that doesn’t match the one in your hypothetical. Can a tweet be a legal command? I defer to you. But can a Tweet from Trump be a legal command? I think it highly unlikely.
Imagine that several officers are out drinking and the superior, well into his cups, says “I hate those Iranians. I want you to launch a bombing run on their naval ships.” Given the venue and the condition any soldier that immediately acted in that order would be reckless. Or, take away the liquor. Imagine that they are just sitting around grousing and getting themselves worked up. If a potentially catastrophic order comes out of it, the receiver has an obligation to recheck that order later and perhaps ask for it in writing. Venue and circumstances matter.
Trump has shown repeatedly that his tweets are just him spouting off. He frequently makes a grand pronouncement but then actually does something completely different. Trump has demonstrated over and over that he does not intend to follow through when he makes a tweet. For a soldier to consider anything that comes out of such a venue to be a direct and immediate order would be reckless.
@gVOR08: Did you read the piece? The order has to be directive in nature. This tracks orders caselaw.
@MarkedMan: if Trump tweeted: “I hereby direct Camp Lejeune to go to FPCON D until further notice” and the base commander saw and was aware of the Tweet — lawful order?
I don’t necessarily dispute that a Tweet can constitute a valid order, but I do disagree that these particular Tweets were in fact valid orders. Here’s the Tweet about Iranian gunboats:
That’s a factual representation about the President’s own previous actions, not a directive to the Navy to undertake any actions themselves. If he had tweeted, “I hereby instruct the US Navy to [destroy Iranian gunboats], that would be an order, but he didn’t; he tweeted that he had already instructed them to do so, which is a (false) statement of fact. Moreover, its phrasing indicates the intended audience for the statement is the general public, not the Navy. He’s not directing (i.e., ordering) the Navy to do something, he’s telling the public what he (allegedly) already instructed the Navy to do.
The anti-transgender tweet follows a similar pattern:
Again, this is written as a statement of fact not a directive, and the phrasing shows that the intended audience is the general public, not the military. He’s telling the rest of us about an order he supposedly already gave (but actually didn’t).
It was my understanding that aides sometimes use his Twitter accounts send out stuff. If this is true, then would that fall into the “OK this is an order but we need clarification” category?
Steve
Let us acknowledge the following:
1) the federal courts have repeatedly ruled that Trump’s Twitter diahera is personal musings and not official statements as a way to avoid making rulings to settle law on the basis of batshit fact patterns AND
2) we know for a fact that multiple people tweet for that account. Dan Scavino can not issue a legal order.
So is it an order or not as to whether journalists have to return their “Noble Prizes”?
@Butch: It would be incumbent upon anyone receiving such an order in that fashion to check it up the chain of command. No rational person should consider it an actual order.
This is what I was getting at. The venue is inherently unreliable and Trump has a long record of using it to make statements he has no intention of being taken literally. So is it possible that in this particular case it was actually Trump and he actually meant it as an order, but it would be beyond reckless to assume so.
I find it hilarious that Trump think patrol boats fly.
“shoot down”
Let me digress a little. A friend of mine who is for the most part pro-Trump (though not hat wearing) said he thinks it’s important to watch Trump’s press conferences so that, as a small business owner, he understands and can act consistently with federal policy and goals. I seriously challenged him as to whether he had ever heard the President say anything actionable or that a responsible business owner would act on without getting confirmation/direction from some other part of the government. Nothing came to mind.
To me, that sums up Trump in a nutshell. He says lots of things. Most of what he says means nothing. What’s that old quote . . . um, oh yes . . . “like a tale told by an idiot, full of sound and fury, signifying nothing. “
@Butch: I read the piece in Task and Purpose yesterday and have been pondering it ever since.
First of all, may I say how absolutely fucked up it is that we are having to consider what the President tweets publicly on a privately-owned platform as a military order? I know you don’t like it either, but….that’s not how this is supposed to work! That’s not how ANY of this is supposed to work!!
I think there’s a lot of leeway in the crap that rolls off Trump’s twitter feed and whether the military should consider it a direct order, for all of the reasons above….he occasionally has aides send Tweets, and Twitter accounts can be hacked. It’s already been made public that Trump himself, and the entire Trump family, communicates with insecure devices. If an aide (or a possible hacker) sent the Camp LeJeune order, is it really a direct order? If I were the commander, I would conveniently “not see” the Tweet.
He’s already deleted the “Noble prize” tweet from earlier today….how can it even be plausible that anybody in the military could, would or SHOULD set into motion ANY action on an “order by Tweet” that can be oh-so-conveniently sent by someone else or deleted?
I am going to chalk this one up as something that absolutely MUST be fixed. No President should be able to command our Armed Forces by Tweet. We didn’t know it could be a problem, before Trump, but now that we know…..let’s plug this damn hole in the boat.
The argument that military officers should treat Trump’s tweets as orders is ridiculous. It might make sense at the theoretical level (if one squints REALLY hard), but practically speaking it’s insane.
From the original article:
How does this even work in practice? Should a Navy lieutenant commanding a small craft who’s seen this tweet (assuming it was Trump tweeting and not some flunky) just start blazing away without guidance (or overall coordination) from his or her superiors?
Alternatively, ought this lieutenant to be court-martialed for not following the directions given in this tweet?
There is a chain of command for a reason. For instance, it ensures that orders are directed at the right person at the right time. Hence, it seems eminently reasonable (and legally defensible) to ignore a commander’s wishes that are deliberately being expressed outside of this chain of command.
Legal arguments that completely ignore all practicalities are mostly just bunk; and usually don’t fare well in actual courts.
How do even know if Tweets are legitimate- maybe somebody hacked into an account – perhaps the owners of Tweet faked an order – I just don’t see Tweets be interpreted as a legitimate order- there is a process that’s need to be followed- not some midnight musing that may or may not have come from the president.
Just to give you an idea of how theoretical this discussion is and how it completely flies in the face of how Trump himself sees his twitter feed or, indeed, anything he says, Mike Pompeo is now making the claim that we never left the Iran Nuclear Treaty. Essentially, that Trump’s tweets and statements to the contrary have no legal standing.
Also, given that Trump refuses to take responsibility for anything he tweets it would be absolute madness to rely on one solitary tweet without backup documentation and signed orders. Trump may want to treat his authority like that of a Mafia don–where he hints and someone else does the dirty work (and takes all the responsibility), but the U.S. military is not his personal plaything.
@grumpy realist:
Well, yes, but he thinks the military is his personal plaything. Recall his reference to “my generals.”
@Michael Reynolds: LtCol Lakin tried this and failed miserably. He ruined his life over this very issue.
@grumpy realist: Right, hence the “duty to clarify.” If we stipulate he’s “stupid” and “unwell” and “corrupt” and all the qualifiers, none of it takes away from the fact that (a) he is the CINC (b) he has certain authorities as CINC and (c) it may be more dangerous to ignore him than to take the Tweets seriously as lawful exercises of his CINC authority and shift the burden to DOD to clarify and negotiate compliance terms.
There are only THREE remedies for his CINC authority: (a) impeachment and removal — already tried and failed (please hold the attacks on Senate GOP, the fact is that’s the system design); (b) 25th Amendment (c) a new election.
A didn’t work. B isn’t going to happen because of cabinet sycophants. Hold your breath and hope for C.
@MarkedMan: Be more specific. By “Iran Nuclear Treaty” do you mean the JCPOA?
@drj: You’re missing the point WILDLY. At no point did I suggest this is a workable solution. On the contrary, what I’m highlighting is that Tweets which fit the hallmarks of orders are constitutionally significant and put DOD in the position of having to work within that framework of doubling back, clarifying, etc. The one option they DON’T have is to simply ignore them and act like nothing happened. The answer to the transgender ban Tweet was “nothing has changed.” Wrong answer; it’s a defiance of the CINC’s expressed will. The correct answer was “we are aware of the Tweet and are working to clarify the CINC’s intent, and will publish guidance to the force consistent with the CINC’s lawful direction.” This buys time and space to examine the “order” for lawfulness (i.e. is it actually in the CINC’s article 2 power? Has Congress preempted the CINC’s discretion in any way, etc.).
@R.Dave: Don’t get hung up on rules of grammar: “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.” can EASILY be read as a directive statement.
If you walk into your house tonight and decree “from this hour forth, no person will walk into this house with their shoes on” do you expect your kids to comply? Of course you do. You’re the man of the house, the kids have a duty to obey, and you are defining a directive expectation.
@MarkedMan: I’m asking about the JCPOA because treaties often have specific withdrawal language. So a Tweet might not, in fact, as a matter of international law, comply with the requirements a state agreed to when entering the treaty to begin with.
Also, minor point, but the JCPOA isn’t a treaty — it’s an executive agreement, but the treaty interpretation rules still apply.
@Butch Bracknell: I don’t see where you have addressed an issue raised multiple times in the comments. It is well known that aides post using Trump’s Twitter account. Therefore you can’t assume that it’s coming from the actual CinC and cannot be treated as an order.
At most its nothing more than a potential order to get clarification through the proper chain of command. In fact, given the volume of tweets the account spews forth wouldn’t it be practically impossible for the regular chain of command to respond to requests for clarification coming in from all levels every day so, in practice, its far better for military personnel to ignore all tweets and wait for orders through regular channels?
@Butch Bracknell: @Michael Reynolds: seems to be postulating an order to carry out an act illegal under military law. Lakin, per a short WIKI summary, refused an otherwise undisputed deployment order under a Birther claim that Obama was not legitimately President. The judge didn’t any relevance to Lakin’s objection and I’m not seeing the relevance of Lakin’s case to Reynold’s issue.
I often disagreed with Doug, but I like him. Helped by the awfulness of Trump, he kind of grew into his role here. It took Doug years to learn to let the children play and not keep jumping into comments to defend every detail of his original post as though any question was a personal attack.
@dazedandconfused: I’m not suggesting an officer would get hammered. I’m stating a Tweet, if it has these hallmarks — all the same as a regular order — is constitutionally an order. What DOD does with it is up to them.
Authenticity is an issue, for sure. But a Tweet issued from the President’s known and verified account is as presumptively authentic as a SECDEF EXORD — the SECDEF doesn’t personally deliver those either, but we presume every EXORD to be a lawful set of instructions.
@Raoul: You’ve skipped right over the authenticity element of the construct. You’re right, it’s possible the Twitter account was hacked. Just as it’s possible DOD’s message system could be hacked and inauthentic EXORDs could be issued. “Authentic” is a condition precedent to legally binding.
Let’s make this simpler instead of indulging red herrings: If the President used his Twitter account, which everyone agreed was his personal account, which he was using, and he tweeted a photo of himself in the White House sitting at the Resolute desk, so you know he’s in the office, and a photo of today’s Wall Street Journal, so you know it’s today, and then he tweeted: “The US Navy, and in particular, the Fifth Fleet commander, is hereby ordered to sink all Iranian patrol craft that venture within 500 yards of a Navy ship.” Lawful order? Immediately executable? Almost certainly justifiable under international law of self-defense if he announces that 500 yards is an “exclusion zone” inside of which Navy ships will deem themselves to be threatened with imminent harm (read the Caroline case).
Once you’ve satisfied yourself this could be a lawful order from the CINC, then open the aperture to what he ACTUALLY said about Iranian patrol boats, the transgender ban, etc.
Then if you satisfy yourself THOSE could be legitimate Tweet orders, but you continue to find yourself focusing on tactical level issues like “why didn’t this ROE change come through the usual process” you now can see DOD’s challenge in normalizing these unusual exercises of clearly constitutional CINC authority.
That’s the REAL underlying point of the article. I didn’t think I’d have to make it so explicit, but there you go.
This thread is reminding me of the old running bit on SNL with Reagan. With the public around he’s Reagan, then the room clears except for one or two key aids and Reagan’s pulling out maps and giving them concise, decisive orders. Then someone else walks in and it’s hide the maps and back to being Reagan.
Before I can engage with whether a Tweeted order might be legal, I have to wrap my head around the idea of Trump actually giving clear, actionable direction to the correct individual(s). Which would also mean taking responsibility for the consequences. Ain’t gonna happen. Some hypotheticals are just too improbable to engage with.
@DAVID ANDERSON:
I’m not sure this one works. After all, most things that comes through most official White House channels are treated as if they are from the President regardless of whether or not he actually wrote it.