On Monday, the Supreme Court released a benchmark decision on presidential immunity, and it has resulted in enough hot air being shed to melt the polar ice caps. Most of the hysterical claims made about this decision are about as fact-based as the phlogiston theory, and some of the most ridiculous claims are the assertions that presidents now have the power to order assassinations of their political opponents.
This is, of course, poppycock, which hasn’t prevented even a Supreme Court Justice from doubling down on stupid. The people who would be called upon to carry out any such order, though, have a different take on the whole thing — including, and maybe especially, the US Army’s elite Delta Force.
Those who make it to the final stage of selection for the Army’s Delta Force special operations unit must pass a commander’s board interview. There, Delta’s commanding officer and other unit personnel barrage the candidate with various questions to test his intellect and character under pressure. I’ve been told by former Delta personnel and have read in at least one memoir that one frequent question is: “How would you respond to an order by the president of the United States to kill a political opponent?”
It can be presumed that a similar question is asked in the selection process for candidates to join the Naval Special Warfare Development Group, also known as SEAL Team Six, and the Air Force‘s 24th Special Tactics Squadron. These organizations constitute Joint Special Operations Command’s three combat-focused special mission units.
This bears noting in light of Supreme Court Justice Sonia Sotomayor‘s dissent to Monday’s ruling on presidential immunity. Sotomayor posits what the decision would mean for a president who “Orders the Navy’s Seal Team 6 to assassinate a political rival?” She answers: “Immune” from prosecution.
Justice Sotomayor is, if we may put a fine point on it, full of crap, and she has a deep and fundamental misunderstanding as to how the military works.
Sotomayor’s contention is both intellectually disingenuous and legally flawed. It shows an utterly defective understanding of military professionalism. It also ignores the majority opinion’s express reservation of judicial review for presidential actions which constitute acts of “authority without law.” No serious legal scholar would claim that a president has the legal authority to kill a domestic political opponent. Established law on what constitutes lawful orders includes the stipulation that an order is pursuant to a “military duty” — plainly a domestic political assassination is a political and criminal act. Still, Sotomayor’s inventive conspiracy has sparked fear by some that former President Donald Trump could order SEAL Team Six to kill off his political enemies if he returns to office.
Of course, former President Trump would do no such thing; political assassinations are not among the powers of the presidency as set forth by the United States Constitution. Such an order would be illegal and illegitimate, and the military members would be under no obligation to follow such an order; indeed, they are obliged by their oath to refuse. The oath, by the way, taken by all military members, 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, according to regulations and the Uniform Code of Military Justice. So help me God.
The military pledges to obey the orders of the president and the officers appointed over them, according to regulations and the Uniform Code of Military Justice. Their oath is to the Constitution, not to any political leader or governing body; this is deliberate, to prevent the rise of an American Caesar, a man with an army whose loyalty is to him, not to the nation.
For that matter, most military members no longer on active duty still consider that oath binding — I know I do.
See Related: Jake Tapper Fixates on the Idea That SCOTUS Immunity Ruling Means a POTUS Can Assassinate His Rivals
WATCH: Bill Barr Rips Through Justice Sotomayor’s Hysteria Over the SCOTUS Presidential Immunity Ruling
So, back to the Delta Force interviews. Wondering about how they answer?
Because the answer to that question, at least if you want to retain a shot at passing the commander’s board, is not “I would follow said order.” On the contrary, it is a variation on the theme of “I would refuse the directive on grounds it constitutes an unlawful order” or “I would consult Joint Special Operations Command legal adviser.” The rationale for this question is simple: Delta wants thinkers who can fight, not zombies who can pull triggers. It wants operators with moral confidence and competence who understand that they serve under a constitutional legal structure rather than as heirs to the corrupt traditions of 1st-century-onward Praetorian Guard units. In essence, Delta, DEVGRU, and 24th STS want and provide the exact opposite of what Sotomayor apparently believes they want and provide.
Now, with all that said: Military members are people, like anyone else. Were there a major rift in the nation, like a second civil war, there would be factions formed in the military along with the rest of the country. But in any such emergency, in any such dissolution of the nation into chaos, while there may be some in the military who would turn on their people, they would not be doing so legally but illegally, and there is nothing in Trump v. United States that makes that legal. Such an order would be not only unlawful but dishonorable, and speculation from the left on the legality of political assassination is, at best, irresponsible; at worst, it is fueling the fires of division that may well result in a split like the one described above.
This decision did not make it legal for the president to order political assassinations. It never has been legal. It never will be legal. Justice Sotomayor, along with many of her fellow travelers on the left, is full of more beans than one of my Aunt Marilyn’s casseroles.
