Trump can’t start a world war - is not a hawk - and can’t order a general to go against the US Constitution
First Trump is not a hawk
A hawk favours starting new military conflicts or escalating existing ones.
A dove favours negotiation and peaceful resolution.
Despite all his bluffs Trumps objective is always to bring the other side to the negotiating table not to start a war. So he is a dove rather than a hawk.
First, a president can't use nukes in peace time. It would go against all of the four main principles of the law of armed conduct., and a general would have to refuse this. More on this at the end.
Also he can’t order a general to do something illegal like order him to send the army to detain and imprison Biden or Harris without any cause, or to prevent Democrat legislators from entering Congress for an important vote he needs to win. That is because military officers swear an oath to protect the US Constitution above all and that oath can only be changed by Congress not by the president. And he can’t appoint non military people as generals or officers. The appointment of officers and generals is completely independent of the president.
This is a copy of my post in my Quora blog here: Trump can’t start a world war - is not a hawk - and can’t order a general to go against the US Constitution
All Trump can do is to change the appointment of four star generals to lead the army. He has to choose from at least one star, brigadier generals for the job. He is not able to hire or fire ANY military officer. They rise through their military excellence and experience to becoming a general and the only thing the executive can do is to choose which generals to raise to four star position.
Even if Trump has a revolving door for his four star generals like he had for his cabinet positions in his first term, he can only appoint them from soldiers that are at least a one star general already, or brigadier general. And they ALL swear an oath to protect the US constitution above all. Any soldier commits his or her life to protect it.
Also, the president can't change the oath of office which is to the constitution above all. Only Congress can change the oath and there is no way Congress will change it to a personal oath to Trump.
A president CAN’T appoint a non military person to a position of command in the military. It has to be a grade above colonel.
The President may assign to any such position an officer of the Army, Navy, Air Force, Marine Corps, or Space Force who is serving on active duty in any grade above colonel or, in the case of an officer of the Navy, any grade above captain.
The first grade above Colonel is Brigadier General in the army. https://www.army.mil/ranks/#officer-ranks-title
The first grade above captain is rear admiral in the navy https://en.wikipedia.org/wiki/United_States_Navy_officer_rank_insignia
TEXT ON GRAPHIC
All soldiers and officers will protect the US Constitution with their life and will NOT obey illegal orders.
All ranks are thoroughly versed in the Law of War.
To follow an illegal order is a war crime.
No matter who gives the order
A four star general will have NO HESITATION telling a general he can't obey.
President's choice must be at least 1 star alredy.
Generals are assisted by military lawyers.
A four star general has a team of lawyers on tap.
A president can ONLY appoint 1-star generals and above to command and ONLY withapproval of Senate.
Many people are confused by Trump’s claims and claims of others that he can be a dictator and think he could order the military to kill civilians. That is NONSENSE.
Also except in time of war, a president can’t dismiss any soldiers. All he can do is demote a four star general back to his original rank.
(a) No commissioned officer may be dismissed from any armed force except-
(1) by sentence of a general court-martial;
(2) in commutation of a sentence of a general court-martial; or
(3) in time of war, by order of the President.
Here this means formally at war. Despite engaging in many wars such as the invasion of Iraq, or the Vietnam war, none of these count as wars in the legal sense. The last war declared by Congress was when the US entered WW2.
The Constitution grants Congress the sole power to declare war. Congress has declared war on 11 occasions, including its first declaration of war with Great Britain in 1812. Congress approved its last formal declaration of war during World War II. Since that time it has agreed to resolutions authorizing the use of military force and continues to shape U.S. military policy through appropriations and oversight.
If a president has the approval of the Senate, that changes it, then he does have the power to displace an officer by appointing another person in his place, though that’s an unusual thing to do. That is by MULLAN v. UNITED STATES.
See final paragraph here:
. ArtII.S2.C1.1.13 President as Commander of Armed Forces
More details about what a president can and can’t do by way of firing generals at the end of this post.
All officers and soldiers swear an oath to protect the US Constitution above the president. They HAVE to disobey illegal orders.
This may help.
Transcript:
TEXT ON GRAPHIC:
General Milley:
We don't take an oath to a country. We don't take an oath to a tribe. We don't take an oath to a religion. We don't take an oath to a King or a Queen or to a tyrant or a dictator and we don't take an oath to a wannabe dictator. We don't take an oath to an individual.
We take an oath to the constitution and we take an oath to the idea that is America and we're willing to die to protect it.
Every soldier, sailor, airman, marine, guardsmen and coastguardsmen, each of us commits our very life to protect and defend that document, regardless of personal price. And we are not easily intimidated.
========
Every US soldier, officer and general takes an oath to the US Constitution above all. They have it drilled in from the start that they must only obey LEGAL orders.
And as soldiers they are willing to die to protect the US constitution and the rule of law.
Speech starts at 1:21:00 here, the quote starts at 1:35:20 U.S. Constitution at Center of Military Transfer of Responsibility Ceremony
This is that oath
"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, according to regulations and the Uniform Code of Military Justice. So help me God."
See:
He can’t use the insurrection act either
THE INSURRECTION ACT ONLY LETS A PRESIDENT USE SOLDIERS WITH THE DUTIES OF THE POLICE OR NATIONAL GUARD - THEY CAN’T ACT LIKE SOLDIERS FIGHTING AN ENEMY AND ALL CIVIL LAWS APPLY TO THEM
Normally a soldier can't arrest a civilian. That is under a bill called Posse Comitatus Act - Wikipedia
Short summary
This ONLY lets her or him use soldiers as supplementary national guard. They are still under the civilian legal system.
The main thing the insurrection act does is to give the soldiers the power to arrest a civilian. It gives them the powers of a national guard essentially. But any civilians they apprehend are tried under civilian, not military law.Once the insurrection is over the emergency is over.
So a president couldn't do this on their first day of office unless there is an insurrection on their first day of office.Any soldiers who are called to assist under the insurrection act do NOT operate under military law. Any actions they do are subject to civilian not military law.
The main difference is that they no longer operate under habeas corpus which means that because the large number of -people in the insurrection may overwhelm the police, they are allowed to detain people without giving them immediate access to legal defence. They can be held without access to legal defence for the duration of the emergency.
They are not charged, they are held without trial but only for the duration of the emergency. Once the emergency is over then it all goes through the legal process, including the soldiers if they did anything illegal that will go through the courts too.
A president can’t use this to change anything in how the law works. He can't use this to round up people who are not doing an insurrection.It is not possible to use martial law. That can only happen if the civilian justice system is no longer able to function which is not plausible.
Here is a parody of the many videos on YouTube, Twitter, Facebook, TikTok, Instagram etc telling you NONSENSE when they claim a president can kill you or imprison you for having views different from them.
Trump is not a hawk anyway - he uses bluffing words but he didn't start any wars.
A president can't use nukes in peace time would go against all of the four main principles of the law of armed conduct.
Anyone who deliberately started a nuclear war has lost their capability for coherent rational thought. But - what happens if a president does start hallucinating, or otherwise loses their ability for coherent thought?
A president has no literal button. He or she has to order a general. The general will be very well versed in the law of armed conduct and what's more will have a team of lawyers to assist him.
Trump is not a hawk anyway - he uses bluffing words but he didn't start any wars. And Harris isn’t a hawk either. The Biden administration has been accused of being too timid if anything and though the decisions were by Biden, Harris has shown no hawk-like tendencies either during his first term.
Let’s look at what would happen if a future president gave this order, NOT TRUMP OR HARRIS. Here is a simplified version of such a conversation.
President: Drop a nuke on Russia
General: What is your justification
President: Just because I told you to do it.
General: Sorry this is not one of the scenarios worked out for legality according to the law of armed conduct. Please let me consult with my lawyer
Lawyer: No this is not legal.
General: Sorry I am advised that this is not a legal order under the law of armed conduct. I can’t follow this order. Please check with your lawyers.
That then is kicked down to Congress if the president insisted, and nobody would vote for it and that would be the end of the story - and most likely the president is quickly impeached as not suitable to run the country.
Retired general Kehler testified to the Senate about how a general always has access to military legal advisors who would listen in on important conversations with the president to advise him on the legality of anything the president ordered him to do.
A general who got that order would be obligated to remind the president of the 4 Basic Principles of the Law of Armed Conflict , on the remote chance he or she receives such an order.
Video: Online training in the law of armed conduct
It is against all four principles of the law of armed conduct (which summarizes the complex international law).
(1) Distinction – to distinguish between the civilian population and combatants and between civilian objects and military objectives and direct operations only against military objectives.”
(2) Proportionality – Loss of life and damage to property incidental to attacks must not be excessive in relation to the military advantage
(3) Military Necessity – “…[E]very injury done to the enemy, even though permitted by the rules, is excusable only so far as it is absolutely necessary; everything beyond that is criminal.”
(4) Unnecessary Suffering – “It is prohibited to employ weapons, projectiles and materials and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.”
. Online training on the Law of Armed Conflict for non-State actors
(slightly shortened the first two)
For details see:
Also he couldn't replace generals by others that would agree to the order. He actually gives the order to a command center not a single general. They all listen in.
QUOTE The order given, probably by phone, from the Presidential Emergency Operations Center (PEOC) in the basement of the White House or any other location would reach the Joint Chiefs of Staff at the Pentagon (National Military Command Center, NMCC)22 or, failing that, the National Airborne Operations Center, an E-4B aircraft that functions as an alternate NMCC
https://www.nonproliferation.org/wp-content/uploads/2019/02/Finger-on-the-Nuclear-Button.pdf
I cover the process in:
BLOG: Trump or any other president can’t launch a nuke even if he were to go mad
If you are cynical about him, he is a property developer not a maker of weapons and wars aren't good for golf courses or hotels.
He is also a human being and not a movie villain or a character in a video game. He has a large family, lots of people he cares about and he doesn't want war that could impact on him in the USA, any more than you do.
What a president can do by way of firing generals in detail
1. The Senate is involved in confirmation of all generals down to below generals down to Majors but they generally just confirm thousands of names in one vote and only have confirmation hearings for 4 star generals.
QUOTES STARTS
The Senate is involved in confirming all active duty officers who reach the rank of major (O-4) and above. The list, which can contain thousands of names, go through the Senate Armed Services Committee and once approved, go onto the Senate floor where they are usually passed by a unanimous consent vote, a Senate aide said.
Typically, Senate confirmation hearings are reserved for four-star command positions like combatant commanders, military service chiefs, Joint Chiefs of Staff, major theater commands, and agency chiefs. However, there are other four-star positions that are not required to go before the committee like staff positions and functional commands. Rarely do 3-star nominees go before the committee, the aide said.
https://taskandpurpose.com/news/generals-admirals-promotion-changes-trump/
The Senate in theory could hold up appointments of any new generals but it's normally only for 4 star generals that they have confirmation hearings.
A president can fire a 4 star general - he then reverts to his previous rank - but most generals wil retire at that point because they get much higher retirement benefits if they retire as a 4 star general than if they go down to a 1 or 2 star and then retire.
A president can't replace a general he dismisses by himself, needs to be confirmed in Senate.
QUOTE STARTS
There are two ways Trump could get rid of top generals.
The first is to issue an explicit call to resign. The second is the removal of a military leader’s assignment. For example, three- and four-star generals, the highest levels an officer can achieve, attain that rank because they’re given an assignment — like being named chief of staff of a military branch — and have responsibilities related to it. If that assignment was revoked, they’d revert to two-star rank. Typically, leaders who lose assignments retire, military experts note.
That’s because individuals maintain their title and benefits upon retirement. Those who retire at a higher rank stand to receive thousands more in retirement pay than those who revert to a lower rank. So, a three-star general about to lose their assignment would likely retire in order to hold onto better retirement benefits than a two-star one.
...
If Trump does remove senior military leaders, he also wouldn’t be able to replace them on his own.
https://www.vox.com/politics/387246/trump-says-he-wants-to-get-rid-of-woke-generals-he-can
3. A president in theory can fire generals at all ranks but by an 1860s legislation can only do that in time of war or as a result of a courtmartial.
QUOTE STARTS
In the 1860s, Congress approved legislation that limits a president’s ability to entirely dismiss someone from the military. Under this policy, the individual in question needs to either face a sentence from a court-martial to be removed, have a court-martial sentence commuted, or be dismissed during a time of war by the president.
https://www.vox.com/politics/387246/trump-says-he-wants-to-get-rid-of-woke-generals-he-can
As for trying to change things so that untrained loyalists become generals, there is just no way that can work.
Someone who commands soldiers must know how to fight. Has to be a trained miltiary soldier.
Trump can give orders but only a military man can know if they are feasible and make sense and can advise him that he's asked them to do something impossible.
There is concern already that Trump might fire the best generals because he doesn't like something about their ideology and that the US armed forces could be led by less competent people who have an ideology Trump likes but are not so good at leading their soldiers and not so well respected.
A general has to make decisions at a time of uncertain knowledge and it's not at all an easy task.
A 4 star general has generally served in the military for several decades first.
And has to be highly respected by other soldiers. So Trump will be limited in his choice for 4 star generals to ones that are highly experienced soldiers.
He couldn’t appoint a non military person to lead US troops. It just wouldn’t work. Not as four star generals. Other roles yes but not generals.
SEE ALSO
For many other concerns please see my:
Many limits on what Trump can do domestically in the USA - Biden helped Europe protect supplies to Ukraine from Trump - and US economy is recovering fast already with leeway for making mistakes
First this is not intended as political in anyway. As usual it is to help scared people and because Trump just won it is focused on helping mostly those who found that scary rather than those who are off celebrating the win.
This post is an expanded version of: SECTION Trump can’t start a world war - is not a hawk - and can’t order a general to go against the US Constitution
Also Trump will find it very hard to pass laws in Congress with the very narrow House margin and the divisive Republican party, especially the 20+ Freedom Caucus MAGA extremists who fight all the other factions and make it hard for the Republicans to organize to pass anything. The majority in the House will be single figures.
Trump won’t be able to pass anything except blandest partisan laws or bipartisan with Democrats - with only a 220 : 215 majority in House and 47 Democrats can filibuster to stop most laws in Senate
This is for anyone worried about Trump becoming a dictator or crashing the US economy etc etc. No those things won't happen. The US economy is very robust. It has a strong constitution and strong protection of rights.
For concerns about a world war see
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But this is incorrect:
“a president can't use nukes in peace time. It would go against all of the four main principles of the law of armed conduct., and a general would have to refuse this”
1. There is no buffer between a president’s decision to use nuclear weapons and the act itself. None. It is literally a phone call away according to David Cirincioni who has written many books on the subject.
2. Trump has the power to declare war and issue emergency powers at any time and will do so. Yes, there will be a political price if it is unpopular - but he has been granted immunity and will push and distort these legalistic terms.
3. Because of the SCOTUS decision The threat of criminal indictment and impeachment is gone. His criminal henchmen can be promised pardons.