This is a little old but I’m going to run with this because Richard Engel is a fairly pathetic person and needs all the mockery he can get and because it is getting Twitter attention today
On election evening, Engel, nearly in tears, was expounding on the parade of horribles that a Trump administration would bring. Now, he might be proven correct in the long run and it would not be a shock, but it is more than a little premature to start complaining about them before the race Clinton has conceded.
The action picks up at 1.02.
HOLT: He has called our generals stupid…
ENGEL:I’ve been talking to generals for a long time and they’ve been reading the Constitution to see what they are obligated to do if they are really ordered to round up and deport millions of Americans and put them on buses or trains. Do they have to do that? The president is the commander-in-chief. That’s the stage that we’re talking about. It’s do they have to follow what they would believe would be an immoral and illegal order.
I’m not sure about Holt’s source for Trump calling “our generals” stupid. The closest I can come to that is Trump saying he understands more about ISIS than our generals do. Anyway, the rest is just nuts. And I mean nuts in the sense that there is no freakin way he had this conversation with any serving general officer in the way he lays it out.
There are no generals reading the fine print in the Constitution to find out what they don’t have to do. And in Trump’s defense, which should allay some of the palpable fear Engels thinks exists, Trump has never advocated rounding up Americans. He has made noises about deporting illegals. These are not the same thing. However, were such an order given we have precedent. US troops were used to round up Americans of Japanese ancestry on the West Coast and the round-up and subsequent interment was declared Constitutional by the US Supreme Court in Korematsu vs. United States. As we aren’t at war, the use of federal troops in law enforcement, including immigration enforcement, is basically forbidden by the Posse Comitatus Act. This action would require Congressional assent and Congressional action to fund it. But, if Congress did this, the generals would not be faced with an illegal order or even an immoral one unless you think enforcing the law is immoral.
A more valid question they could have would be Trump’s threat to target the families of terrorists (may or may not be legal depending on the particular situation) and the use of torture (depends upon what torture is defined as).
And these generals who are pouring out their souls to Richard Engel know the rules well. First, every order you receive is assumed to be legal (I’m not exactly sure where the “immoral” part comes from because morality is sort of flexible). Period. If you think an order is not legal, then you have a positive duty to ask for clarification to make sure you understand exactly what your are being ordered to do. For instance, in May 1968 an infantry platoon C Company, 1st Battalion, 20th Infantry took some number of Viet Cong and Viet Cong suspects prisoner. Their platoon leader, a young lieutenant named William Calley, asked his boss, Captain Ernest Medina, what to do. This is Medina’s testimony at his trial:
Q: Do you know what happened to those persons who were detained, in your own knowledge?
A: Once we began moving toward the east from the village, we came upon a group of civilians that had been rounded up. I estimate the number somewhere between eighty to ninety, I guess, that had been gathered. There were men, women, and children. I had my interpreter talk to them. We selected the ones that appeared to be Viet Cong suspects of military age. The women and children and the old Vietnamese males, I instructed Sergeant Phu to tell them to proceed from this area and go directly to the refugee center either at Son Thanh or Quang Ngai and report in to the ARVN adviser there and they would be taken care of. . .
Take care of the prisoners, as we saw, can have a lot of meanings depending upon your state of mind.
If your are told, after asking for clarification, to do something that is illegal they you have an obligation to report the order to the proper authorities. At that time you have to roll the dice. Are you sure enough of your judgment to bet a lengthy prison term on the outcome, one way or another? Because carrying out an illegal order in good faith doesn’t constitute a defense. And disobeying a legal order is perilous under the least trying circumstances. In reality, a general officer receiving what he believes to be an illegal order can ask for relief, resign his commission, and go public. But the line is not bright by any stretch of the imagination. All those people in the CIA saying that they won’t waterboard detainees? If the US government adopts the standard that existed under George Bush (which I think was an imminently defensible standard) they will either do it or they will face dismissal. The same applies to the military. Eventually someone will step forward and do the job.
So Engel is full of baloney. Every general officer knows what the rules are and moreover there is virtually no danger that anyone is going to force them to make that choice.