Would these still be considered unlawful orders from a military command perspective that could be disregarded to prevent the massacre or has SCOTUS basically removed that check on power too?
Any troop carrying out an order known, or would by a reasonable person be known, to be illegal is personally liable under the UCMJ. The President may under the Roberts Doctrine be immune from the workings of justice, but the private pulling the trigger is not.
Yep. I was trying to explain to someone yesterday that this is the nightmare scenario. Keep firing generals until you get the one willing to shoot civilians and then promise a pardon to everyone involved when they do. In my own experience as a soldier, you'll find someone sooner or later.
There is, however, an interesting jurisdictional issue here. He can do this with active duty and reserve units, but presumably not with national guard, since they answer to the governor of their state who would have to be the intermediary.
Depends if they’re mobilized pursuant to Title 32 or Title 10; in the former case they remain under formal state control, in the latter they are truly federalized (but then are subject to PCA restrictions on law enforcement activity).
This is why I think getting a navy seal to assassinate a rival is more possible than like, getting “the military” to seize congress. The first you just need to find one loyal trigger finger, in the second law and norms are going to cause fractures in the force, and you don’t know how it shakes out.
A coup I think will go against whoever tries to kick it off, I think, because all these guys overlapping laws, norms, regulations, and trainings are going to come into conflict with each other. In the vacuum, I think institutional instincts overcome the basic “conservatism” of the organization.
