Lost in the controversy last year between the six Democratic members of Congress and President Donald Trump over whether American troops should obey the president unconditionally is a key question: what exactly constitutes an illegal military order, and how can we expect uniformed military personnel to distinguish between legal and illegal orders?

For context, it may be helpful to begin with a story from President Trump’s first term. During the summer and fall of 2017, US-North Korea relations deteriorated badly after a series of North Korean missile and nuclear tests. At one point, Trump and the North Korean dictator, Kim Jong-Un, exchanged nuclear threats, with Trump famously pointing out that his nuclear button was the larger of the two. The United States sent additional munitions and other supplies to the Korean peninsula and sent three aircraft carriers to the region. 

A preemptive American attack did not seem out of the question (all of this was before the three summits between Trump and Kim in 2018 and 2019 that led nowhere in policy terms, but cooled off the crisis). Then, in November of 2017, General John Hyten, head of Strategic Command (and future vice chairman of the Joint Chiefs of Staff), was asked by a reporter what he would do if given an illegal order to conduct a nuclear strike. 

Hyten wisely replied, “I provide advice to the president; he will tell me what to do…And if it’s illegal, guess what’s going to happen? I’m going to say, ‘Mr. President, that’s illegal’…And guess what he’s going to do? He’s going to say, ‘What would be legal?’ And we’ll come up with options…It’s not that complicated.” Rather than wade into a detailed public discussion of what kinds of orders might be considered illegal, Hyten smartly kept things general and somewhat vague.

But what of more concrete and specific possibilities, such as those in the news today? As for US enlisted military personnel, their oath, like that of officers, is to the Constitution, but they are also expected to obey orders plain and simple. Debates over policy are left to officers. Their oath reads as follows:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me,........

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