Donald Trump, Michael Hayden, unlawful orders, and the Establishment

Michael Hayden is a retired four-star general who ran the NSA and then the CIA under George W. Bush. Bill Maher asked him about Donald Trump’s plans to, for example, kill the families of terrorists, and Hayden replied that the armed forces would refuse to obey unlawful orders.

This is (1) unsurprising (2) surprising and (3) significant.

Let me take those in order.

It’s unsurprising because, at least since the Nuremberg Trials, it has been clear that an order contrary to the laws of war is not a lawful order and must not be obeyed. That is to say, what those trials established was precisely that the “Nuremberg Defense” is no defense at all.

So what Hayden said is utterly uncontroversial, and I would expect any competent person to give the same answer. How many would actually refuse, when push came to shove, at the risk of being relieved of duty, is a different question, though some surely would. But it’s not a choice anyone wants to face.

And it’s clearly a choice that Hayden thinks Trump might force on them: not just because he’s called for the commission of war crimes (he’s not alone on that) but because his entire demeanor suggests that - unlike, say, Marco Rubio - he wouldn’t automatically back down when the brass told him that what he wanted couldn’t lawfully be done.

It’s surprising because even retired generals tend to be a little bit delicate about engaging in politics, and because (given his service under GWB) Hayden’s partisan loyalties, insofar as he has them, are more likely to be Republican than Democratic. When someone in that position calmly announces on national TV that the stated plans of the almost-presumptive GOP Presidential nominee are unlawful and would be disobeyed, that’s news.

Hayden could easily have ducked the question, dismissed it as merely hypothetical, asserted that surely Trump couldn’t have meant what he said, or simply replied that he didn’t want to be seen as taking a position in the Presidential campaign. He did none of those things.  He flatly said that Trump had pledged to give orders that no honorable servicemember could carry out, thus clearly implying that Trump is unfit to hold office. And his saying so means that he’s pretty sure the people whose good opinion matters to him, including his former colleagues still in active service, agree.

And that brings us to significance.  There’s been lots of loose talk about how, if Trump becomes the nominee, even the #NeverTrump Republicans will “come home” because partisanship is now so strong and they hate Hillary so much. Of course that’s partially true; no doubt some of the #NeverTrump stuff is posturing in the nomination contest.

But it’s possible to be too cynical, even about American politics in the Twenty-teens.  Many Republican voters, and a big chunk of what might be called the Permanent Republican Party - the Republican political class and its associated corps of donors, influentials and potential nominees to senior positions - are sincerely patriotic and devoted to keeping the country strong militarily.

When those people learn, from personal contacts or from reading about what Hayden said (and what others like him will surely say), that the senior serving generals and admirals regard Trump as unfit for office and stand ready to defy his unlawful orders, that will make them profoundly unwilling to see Trump become President. And that includes the executives and big shareholders of the military contractors, who constitute an important element of the donor base and whose employees are likely to get the word that Trump would be bad for business.

Now, the people I’m describing have a different problem from, say, Reince Priebus or Mitch McConnell or Paul Ryan. Priebus has to support the GOP candidate or leave his job. McConnell has to decide what course of action gives him the best shot of keeping his majority in the Senate. Ryan probably can’t get away with not backing Trump if he wants to hold the Speakership. All three need to think about the effects of their stances toward Trump on their own futures as well as whether they want him to actually become President.

To the generals and admirals, though, what really matters is whether there’s a buffoon in the White House who might go around giving unlawful orders, thus setting up a constitutional confrontation that can only damage readiness in the short run and political-military relationships in the long run (since at least some Republicans on Capitol Hill would back a Republican President against disobedient generals and admirals). And what matters to them matters to the national-defense part of the Permanent Republican Party. Those folks are going to deeply and sincerely want Donald Trump to lose, no matter how little some of them want Hillary Clinton to win. That might mean merely sitting on their hands; it might mean backing some sort of Mugwump ticket; it might mean actually crossing over.

How many fewer votes for Trump or more votes for Clinton that would translate into (as compared to a Rubio candidacy) I can’t estimate. But I’m pretty sure it’s a big enough number - combined with similar revolts from (e.g.) the foreign-policy types and the constitutional lawyers - to make a Clinton victory a near-certainty, even if Trump could otherwise manage to finesse the Republicans’ basic demographic problem. And it might be enough, especially given the positive feedbacks in campaigns - everybody wants to be with the winner, no one wants to be with a loser - to make possible, despite the hardening of party lines, a 1964-1972-1984-level landslide.

Despite the best efforts of Newt Gingrich and Roger Ailes, the United States of America is not - at least is not yet, and probably never will be - the Weimar Republic. Compared to the Cold War period, the Establishment is fractured and weakened. But it’s still there, and most of it is still loyal to the project of republican government.

So Donald Trump is not going to be our next President. However, “to make assurance doubly sure,” let’s all work our hearts out from now to November, just the same.


Comments, below and elsewhere, have focused on how much actual resistance the military would offer to unlawful orders issued by President Trump. Some of that discussion tends to elide the distinction between activity that is arguably problematic (e.g., drone strikes) and activity that is grossly illegal (murdering family members).  But in any case, the central point of the post is not what might happen later, but what is likely to happen between now and November.

To summarize:

1. The brass will stretch a point to avoid a constitutional confrontation with a President, especially in wartime.

2. But they’d rather not.

3. Trump’s election would create a high probability of having to make that choice.

4. Hayden’s views likely reflect those of his friends still on active duty.

5. Therefore I expect the Republican side of the national security Establishment to actively work to keep Trump out of the White House.

6. That makes Trump’s election very unlikely.










Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

28 thoughts on “Donald Trump, Michael Hayden, unlawful orders, and the Establishment”

  1. Personally, I'm kind of cynical about this. Have the military refused to bomb weddings under Obama? Refused to lob missiles in the general direction of a cell phone, without any notion of who might be near it?

    Kinda laughable, the idea that what Trump proposes would be a new step for the US.

    1. Seconding Brett here, for likely the third time in a decade.

      In addition, every external sign tells us that these senior leaders are very, very Republican. Causing a public crisis against a GOP president and Congress would be an additional major step.

      1. Agree, and this is the same Michael Hayden who is currently defending Obama's illegal drone warfare. So why is he attacking Trump? A promise from Cruz or Rubio of a cabinet position? Googling reveals that both Cruz and Rubio also support torture, if less vociferously than Trump.

      2. When Mr. Bellmore is right (black swan, white buffalo), he is right. In 2000, it appeared that the United States had disavowed torture as decisively as imaginable, and that the prohibition was independently binding on persons at all levels. Hat tip, Ronald Reagan. Then our shining-city-on-a-hill country enthusiastically tortured up a storm, with "refus[als] to obey unlawful orders" more or less nonexistent.

    2. I too must agree with Brett. Abu Ghraib, Guantánamo Bay and the infamous night raids in Afghanistan are worth a mention, as is the targeting of journalists and indiscriminate killing of civilians in Iraq and Afghanistan.

    3. Sorry if you find my patriotism offensive.
      Can’t promise it won’t happen again.
      In any case, this whole discussion misses the point of the post. See update.

      1. I'm not imputing your patriotism, I'm just unclear on the point you're trying to make. Aside from that, I don't understand how you think the general staff will keep Trump out of the White House and I understand even less why you seem to think it would be a positive development that the military brass would even undertake to do so.

        1. The replies here don't indent far enough to make it clear, but Mark was responding to Brett's comment, not yours.

          As for your second point, Hayden isn't military; he's retired military, which is the same thing as saying that he's a civilian. There's nothing at all improper with him trying to affect the outcome of an election. There isn't even anything wrong with him sharing or expressing the concerns of those who are still in the military, so long as he doesn't attribute a partisan position to anyone still serving.

          1. I don't think Brett was decrying Mark's patriotism so much as his judgement and his belief that the American military will somehow conspire to stop Trump because they don't want to commit the war crimes (which they've been committing continuously since 2001).

            Also, I take Mark’s point to be different from your description. Mark seems to be saying that the general staff is filled with good men like Hayden who won't commit war crimes and will quietly channel their displeasure in such a way that we all understand that the military will never let Trump be president and they will do so by some unspecified means.

            Mark’s point certainly can’t be that the military, which has regularly swept some war crimes under the rug and has practically fetishized the commission of other war crimes, is so inalterably opposed to Trump’s nastiness that the generals will either refuse to obey him (in which case no more private planes, lavish mansions filled with servants, freshly sliced pineapple by the bedside every night and gold plated contracts with defense contractors—seems unlikely) or they will do an unspecified something else which I consider far more likely than a bunch of American generals upholding the Nuremberg principles.

            As with so much else, what seems to bother Hayden about Trump is that he’s got the bad taste to say the quiet parts loudly. We’re already doing all the terrible things that Trump advocates (drones that indiscriminately kill innocents, bombing weddings, torture, murder of family members, killing of children and other civilians, wars of aggression, deliberate targeting of hospitals, etc). It’s the new American way of waging war. But the discussion is conducted in whispers and is hardly ever critical of the military, especially when that discussion takes place in the mainstream media.

            We don’t talk much about our new way of war because some liberals don’t want to criticize Obama, conservatives don’t want to give Obama credit for doing what they want and the mainstream media doesn’t want to rock the boat. As far as I can tell, the American general staff has been in the vanguard of the changes in the American approach to warfare; if any American general is uncomfortable with what we’ve done since 2001, he’s kept it a well hidden secret.

            What Hayden objects to isn’t that Trump is advocating war crimes, it that’s Trump is shouting about the evil that Hayden long ago embraced but that he wants spoken of only in whispers.

      2. I don't find patriotism particularly offensive, but I'm not from the school of patriots who conceive of it as requiring us to love the government, just because we love our country. Rather, I think that, if you love your country, you should be clinically objective about your government. Unless your's is a small country with a powerful, aggressive neighbor, your own government is the greatest threat your country faces. You can't afford to have illusions concerning it.

        Anyway, you think the military are somehow going to rise against Trump, and thus assure his defeat, on account of a few remarks like that? I find that unlikely, for a variety of reasons.

        Assume that's not just a throwaway line, but represents considered policy he'd try to implement. I think the military have been recently faced with orders no less illegal, and have not exhibited much in the way of scruples about them. As I say, we've bombed weddings, shot missiles at cell phones knowing not what was around them, fought literally illegal wars. Unless the family killing were deliberately designed to put soldiers in a position of pointing a sidearm at a child, it would happen. We've gotten too good at producing the remove necessary to avoid activating scruples. And we've done an excellent job at producing a military that is obedient to civilian command.

        In fact, I think much of Obama's churning of the military leadership the last few years has aimed at enhancing that.

        But, perhaps more to the point, do you not think that Hillary has a similar issue?

        Yes, I know: Every last scrap of information that makes her look bad is a Republican fabrication. Every bit of it. Please.

        Benghazi was real, and the military don't like it.

        The email scandal is real, and the intelligence services are pissed off beyond all recognition by the way she casually compromised national security.

        If the military and intelligence services do get in this fight, it's rather risky thinking they'll be on Hillary's side.

  2. I think it's worth looking at Hayden's careful choice of language here-and "careful" is a valid assessment, I think, as he shifts into a slower and more deliberate speech pattern at this point. He says he would be concerned if a President Trump governed "in a way that was consistent with the language that Candidate Trump expressed during the campaign." This is a very different thing from saying something like "I would be concerned if a President Trump tries to do some of the things he's been talking about during the campaign." In that case, I could see the statement as signalling that much of what Trump is talking about is just plain wrong and frankly not in the cards for the American military. But back to what he does say, notice in particular Hayden's example: the increased use of waterboarding with stress on the phrase "because they *deserve* it, not be-" That's pretty carefully circumscribed and doesn't really suggest that waterboarding-or even "a whole lot more"-is off the table, provided Trump doesn't give the wrong reason for ordering it. In fact, the self-interruption suggests that the problem is the reason, not the use of "waterboarding and a whole lot more."

    Then he heads straight for the standard line about how one is not required to follow an unlawful order; indeed, one is required not to.

    And we all know how that's been working out.

  3. It's Reince Priebus. Even men who sound like Terry Pratchett characters and behave accordingly are entitled to the orthography of their names.

  4. Re: the Update. Given how much of this election season has already revolved around "GOP Establishment proves incapable of derailing Trump," I'm not as confident about their ability to stop if from happening.

    I think Trump's election is unlikely, but not because the GOP Establishment opposes him. And I can't help recalling similar predictions about Reagan, that he would never be nominated, and even if he got the nomination, he'd never win the general. A Trump presidency, disastrous as it may be, is more possible than many would like to think.

    1. I don't recall similar predictions about Reagan, and couldn't find any on Google, but I did find a few pieces arguing that Reagan *was* electable, and these imply that their were questions about Reagan's electability before he started winning primaries. For example, NBC News stated: "Throughout the primaries, Reagan has demonstrated his ability to add to the Republican base, by drawing blue-collar, cross-over Democrats."

      Source for quote:

      This suggests your memory is correct, but you are thinking of very early predictions. At the time the NBC report (May 7, 1980), bookies were making Reagan the odds on favorite to win in November. In contrast, currently has Hillary at 63%, Trump at 27%, and Rubio at 5%.

    2. I agree the Republican establishment dropped the ball on Trump, which doesn't bode well for Mark's prediction that they'll work against him. OTOH, they seem to have woken up, although probably too late to stop the nomination.

      We'll know long before the election if something's happening. Ben Sasse is a good sign, but it has to be much more than that to make a difference.

      I think an active conservative third party campaign might be more effective than crossing over to Hillary.

  5. I just want to say, I no longer feel even slightly bad that I don't read Douthat. There went 3 minutes today which I'll never get back. I do feel a little bad that I felt the need to say this though. But. Come TF on.

  6. Re: the Update: For reasons stated, Hayden's views as to whether unlawful orders would be obeyed are not well grounded in recent history. His lack of realistic understanding here undercuts any intricate reliance on his pronouncements.

    1. I think Hayden has a perfect understanding of which orders are illegal and shouldn't be obeyed. The problem is that it seems to be something the American military has never bothered to care very much about except to pat themselves on the back about how wonderful they are. When the US military first occupied Iraq, I remember reading an article on the front page of the Washington Post about how a young officer was searching for a wanted man but was sure that he'd turn himself in soon because the US was holding on to the man's family.

      The officer seemed proud. The reporter seemed impressed. Nobody cared about the Iraqi family being held as hostages. The thing that struck me was that it was so unremarkable to everybody that an American officer ordered a man family held hostage until he turned himself in to the occupation authorities. I don't remember any member of the general staff and certainly not Gen. Hayden threatening to prosecute the officer or the soldiers who obeyed his unlawful order. I guess because when we do it, it's not a war crime.

  7. For the Trump contingent (hhm, a fasces of trump supporters?) this will simply make it clear that the current military and national security establishment need to be brought, um, firmly under control of the civilian leadership.

    1. In which case, Trump and his supporters would be in tune with the sentiments of many liberals and civil liberties advocates such as myself who are appalled by Obama's continuation of Bush era policies on the GWOT and civil liberties.

        1. I'm not clear on what you mean. If you mean that, deep down, Trump is both a repugnant authoritian monster and he's lying about his anti-establishment policies, you may be right about his not being sincere about, say, bringing the national security state under civilian control, you are certainly right about him being a monster but surely the possibility that he may be insincere is the risk we always take when we elected somebody. Civilian control of the military is something that was lost in everything but name during the Cold War and if Donald Trump would commit to restoring it, that would be something significant to recommend him. Same with TPP and regulating Wall Street.

          1. What I mean is that (in my opinion) even now the military is actually bound by some notion of unlawful orders. The boundary may not be what you or I or (other) sensible people believe it should be, but it's there. The idea that Trump and his partisans appear to have of civilian control of the military involves abdicating that notion to the Commander in Chief, so that whatever he says is law. That kind of civilian control (one vote by one man) is even worse than the situation we have now.

          2. If members are the American military follow any kind of code, it's a primitive warrior's code and quite different from anything that an advocate of the Geneva Conventions or the Nuremberg principles would recognize. The military looks at the law of war basically the way that a shrewd tax lawyer looked at the tax code. And whatever code they recognize, seems to require solidarity and exoneration whenever war crimes can be swept under the rug and extreme leniency whenever something can't be made to go away.

            If Donald Trump wins the general election, he will be the president. Period. I have spent years being appalled listening to conservatives urge disobedience to the orders of president Clinton and Obama, and even their overthrow by a military coup. Presidential systems are fragile and ours seems to be becoming increasingly brittle. It would be insanity to count on a beneficent military removing or disregarding a president and then "returning" the country to democracy. It is a terrible idea to hold up the military as some kind of arbiters of right and wrong in domestic politics and we shouldn't try, no matter how good it feels to play the "patriot" and "support the troops" cards against those conservatives who've painted liberals as unpatriotic for years.

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