William Middleton of Portland is a retired librarian. He served as an enlisted soldier in the U.S. Army from 1982 to 1986.  

The oath of enlistment taken by all U.S. service members is succinct:

“I do solemnly swear 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, according to regulations and the Uniform Code of Military Justice. So help me God.”

That oath gets some refinement in basic training, where service members learn that they’re required to obey lawful orders, but have a duty to refuse orders that are “manifestly illegal,” such as those that violate the Constitution, international law or the Geneva Conventions. 

My drill sergeant never cited the relevant case law, but it was right there if he needed it: United States v. Keenan, from 1969. In that case, the Court of Military Appeals ruled that “Obedience to a lawful order is justified, but one in execution of a patently illegal order is not.”

Recently, six lawmakers, all of whom had served in either the military or the intelligence community, released a video in which they directly addressed active duty service members. The six acknowledged the enormous stress and pressure the service members were under right now, and reminded them of their obligation to refuse illegal orders. 

The president sharply criticized their reminder, saying the video was “really bad, and Dangerous to our Country.”

“SEDITIOUS BEHAVIOR FROM TRAITORS!!!” he continued. “LOCK THEM UP???” He also called for the lawmakers’ arrest and trial, adding in a separate post that it was “SEDITIOUS BEHAVIOR, punishable by DEATH.”

It was not seditious behavior, and a president threatening members of Congress with death is beyond alarming. 

The six had been careful to talk about illegal orders. The ruling in the United States v. Keenan case draws a clear distinction between a lawful order, which must be obeyed, and an unlawful or “patently illegal” order, which must not be obeyed. 

By reinforcing the obligation of service members to refuse illegal orders, the ruling ensured they could not be forced to commit unlawful acts. More remarkably, it positioned military personnel as a check against abuses of power. 

The ruling is rooted in the idea that service members are not robots and are not expected to surrender all independent moral and legal judgment. By upholding the duty to disobey illegal orders, the military affirmed that its members are defending a nation of laws, not men. 

We often talk, with justified pride, about the checks and balances the Founders built into our system of government. But the checks and balances we typically talk about are between the three coequal branches: legislative, executive and judicial.  

I’ve never heard anyone talk about the check an 18-year-old private serving in an infantry platoon might provide on his commander in chief. It’s staggering, almost unfathomable, and I can see the Founders’ jaws dropping in unison. There’s nothing coequal in the relationship.  

But once they recovered, I think the Founders would have approved. After all, they were trying to design a system that was dictator-proof, one that would not admit absolute power. And if you give that lone infantry private moral agency, you’ve made him the ultimate check on absolute power. That’s our law. And it’s wonderful.