During a joint speech with Hillary Clinton in his ancestral home of Scranton, Pa., Vice President Joe Biden riffed on the ways he sees Donald Trump as being unfit for the presidency.
One of the things that Biden said troubled him among Trump’s past comments is his suggestion that the United States may need to utilize “torture.”
Biden said that Trump has floated the use of torture “when he knows it’s illegal, and says he would still order it even though the military commanders said they would not obey his orders. When can you think of ever in history where military commanders have said before a man or woman is elected that they would not follow his orders?”
Trump has proposed killing the families of terrorists, a policy that, as we have written before, would violate the Geneva Conventions.
However, Biden’s remark suggests that active military commanders have already said before the election that they would not follow certain orders issued by Trump.
That’s an overstatement, although one that contains some degree of truth. Let’s take a closer look.
We could find no evidence — and Biden’s staff couldn’t point to any — showing active military commanders saying they would not follow certain orders from a President Trump.
Senior national security retirees, though, are another story.
Biden’s staff pointed to comments made in February by former CIA Director Michael Hayden on HBO’s “Real Time with Bill Maher.”
When Maher brought up Trump’s idea of killing family members of terrorists, Hayden said, “If he were to order that once in government, the American armed forces would refuse to act.”
We should point out that Trump does have some senior military retirees on his side as well, including former Defense Intelligence Agency chief Michael T. Flynn, decorated Army Maj. Gen. Bert Mizusawa, retired Marine Corps Brig. Gen. Mark Bircher, retired four star Air Force Gen. Robert Oaks, and retired Army Maj. Gen. Paul Vallely.
Bottom line: In his Scranton comments, Biden exaggerated by saying that current military commanders have publicly said “they would not follow” illegal orders from Trump. There’s no evidence of that.
That said, Biden’s overstatement is somewhat moot.
“Under both international law and domestic law, a soldier has a duty to disobey a manifestly unlawful order,” said Steven R. Ratner, a law professor at the University of Michigan. “It doesn’t matter who gave it.”
According to the Manual for Courts-Martial, if “an order is patently illegal, a service member has an obligation to disobey it,” said Richard D. Rosen, the director of Texas Tech University’s Center for Military Law & Policy. The so-called “Nuremberg Defense” to criminal activity — “I was only following orders” — excuses a service member’s criminal actions “only if the ordered actions are not palpably illegal,” Rosen said.
This represents a pretty high standard. However, the types of orders at issue here would likely qualify, experts said.
“I believe that an order to target and kill civilians intentionally, such as killing the families of terrorists, is patently illegal,” Rosen said, “and I would advise commanders and soldiers not to follow the order.”
He cited the Vietnam War case of Lt. William Calley, a platoon leader who was accused of killing civilians, including women, children and elderly men in the village of My Lai in South Vietnam. Calley’s defense was that he was executing the orders of his company commander, but both the Army Court of Military Review and Court of Military Appeals rejected Calley’s defense, Rosen said.
Finally, experts say Biden has a point about the unusual extent of senior military concern about a presidential candidate’s potential for ordering illegal acts from the White House.
“There have certainly been overt disputes between presidents and commanders,” such as between President Abraham Lincoln and Maj. Gen. George McClellan and between President Harry Truman and Gen. Douglas MacArthur, Rosen said. “But I am not aware of cases in which active-duty service members actually took sides in a political campaign.”
Anthony Clark Arend, a Georgetown University professor of government and foreign service, agreed.
“I can think of no historical precedent for members of the military and foreign policy community making statements relating to the need to disobey unlawful orders during a presidential campaign,” Arend said. “This truly seems unprecedented.”
Biden said military commanders have said that if Trump were elected, “they would not follow his orders.”
Biden has a point that retired military officials have spoken out against Trump. But he exaggerated when he described them as “military commanders.” The current active leadership has not spoken out against Trump. We rate his statement Mostly False.
Support real journalism. Support local journalism. Subscribe to The Atlanta Journal-Constitution today. See offers.
Your subscription to the Atlanta Journal-Constitution funds in-depth reporting and investigations that keep you informed. Thank you for supporting real journalism.
For the full fact check, please see www.politifact.com/truth-o-meter/statements/2016/aug/17/joe-biden/joe-biden-rips-donald-trump-over-commanders-fears-/.