After January 21 2025, UCMJ Article 90 and UCMJ Article 92 is going to be tested. The former and future President Trump has made it clear that he wants to use the military to conduct mass deportations of non-citizens.

How UCMJ Article 90 and UCMJ Article 92 could be important for the next four years

UCMJ Article 90 and UCMJ Article 92 applies when a service member intentionally fails to obey a lawful command given by a superior commissioned officer. Obedience to UCMJ Article 90 is critical to the military because it establishes command authority. Command Authority ensures that orders from superior officers are respected and followed. Not following orders would harm operational effectiveness. Article 90 reflects the critical need for strict adherence to military hierarchy and chain of command, ensuring that the armed forces operate efficiently and cohesively. Violations undermine authority and discipline, which can jeopardize mission success and the safety of personnel. UCMJ Article 90 also provides legal protection for officers who are responsible for leading and managing service members.

Article 92 is similar to UCMJ Article 90 in that both establish strict obligations for military personnel to comply with lawful orders and regulations and there are recognized exceptions or defenses that can apply in specific circumstances.   Military personnel are only required to obey lawful orders.

Potential Domestic Misuse of the Military

According to UCMJ Law Article 92 An order is unlawful if it violates the Constitution, U.S. laws, or military regulations and it directs a service member to commit a crime or unethical act.

If the president uses the military to conduct mass deportations of non-citizens, this is a violation of the Posse Comitatus act. The administration will work to find a way to get around the act due to the ambiguities in different US laws regarding the domestic use of the military. As an example, the Insurrection Act is a U.S. federal law that allows the President to deploy federal military forces and the National Guard (under federal authority) to address domestic emergencies and enforce laws when local authorities are unable or unwilling to do so. It provides a legal exception to the restrictions imposed by the Posse Comitatus Act.

The Posse Comitatus Act is a United States federal law enacted in 1878 to limit the powers of the federal government in using the military to enforce domestic policies within the United States. The act plays a significant role in maintaining the separation between military and civilian law enforcement functions. The purpose of the Posse Comitatus act is to prohibit the use of the U.S. Army (and later, by extension, the Air Force) in civilian law enforcement activities unless expressly authorized by the Constitution or Congress.

It was originally passed as part of the effort to end military involvement in policing Southern states during Reconstruction. The act applies to the U.S. Army and U.S. Air Force, and, by Department of Defense regulations, it also applies to the Navy and Marine Corps. It does not apply to the Coast Guard, which operates under the Department of Homeland Security during peacetime and has law enforcement authority.

The difference of the Posse Comitatus Act in application among the services may create some wiggle room for the administration and certainly complicate the federal courts efforts to police the administration’s misuse of the military.

How does this apply to individual service members?

Service members and their leaders must obey their superiors if the orders they are given are lawful. You may have different circumstances playout should the military be used unlawfully. A general officer may decide not to follow the law because they consider it unlawful. Is the order being given under the auspices of the Insurrection act? The Insurrection Act may allow the President to deploy federal military forces and the National Guard (under federal authority) to address domestic emergencies and enforce laws when local authorities are unable or unwilling to do so. It provides a legal exception to the restrictions imposed by the Posse Comitatus Act. But there is a real moral concern that the Insurrection Act will be used to suppress dissent rather than respond to an actual emergency. Or perhaps leaders in the military agree to follow illegal orders because they have been promised pardons by the president after the fact.

As we all know, proximity to power provides certain protections. It is unlikely that those lower down the chain will get as much protection to break the law as would a general officer sitting in the situation room with the President.

Potential defenses

Should the administration attempt to execute illegal orders, some service members and their leaders may refuse to follow these orders. One exception to Article 90 says a service member is not required to obey an order that violates the law. Every service member takes an oath that includes obeying lawful orders. Most service members and leaders take this oath seriously and many will refuse to obey orders that are unlawful whether the President orders operations without a legal mandate or with an ambiguous legal mandate that violates the ethical norm of the statutes purpose.

Specific to UCMJ Article 92 the ambiguity of the issued order can contribute to the defense of someone accused of violating it. If the order or regulation was unclear or could reasonably be interpreted in multiple ways, the accused might not be guilty of failing to obey it. The burden falls on the prosecution to prove that the order was clear, and the accused willfully violated it. Considering the complexity that will arise when the new administration tries to misuse the military, leaders and service members who believe their orders are illegal or unethical may have a valid defense.

Penalties for violating UCMJ Article 90 and UCMJ Article 92

Penalties for violating UCMJ Article 90 and UCMJ Article 92, or the willful disobedience of a lawful order, are up to 5 years of confinement, a dishonorable discharge, forfeiture of all pay and allowances.

Pete Kageleiry, Jr. is a retired Army JAG Officer and has been in practice for more than 25 years. If you are accused of violating UCMJ Article 90 and UCMJ Article 92, contact us or call 757-504-2815.