In our country, it is illegal and morally deranged for officers of the federal government to threaten American citizens with political reprisals and terrible punishments for exercising one of their most sacred freedoms, their freedom of speech.
The leadership of the Republican party, however, is doing just that, using the full force of the Department of Justice to intimidate six Democratic members Congress by accusing them of treason and other high crimes punishable by death for speaking their minds about the illegality of using military personnel as domestic police.
This scandalous bullying is what would be called in civil law a SLAPP suit, a strategic lawsuit, or action, that is meant to intimidate and silence critics. SLAPPs are acts of frivolous litigation, groundless and unwinnable, aimed at choking off criticism of any kind. It is a disreputable practice frowned upon by all well-meaning public-spirited participants in an open and free society.
The Trump administration is attempting to SLAPP six Democratic members of Congress, all of them patriotic veterans who served their country well. The GOP is after them, it seems, because they made a video reminding US troops of what they learned in their first days of bootcamp — the absolute necessity of obeying legal orders, and the constitutional right, and even duty, to disobey illegal commands that could put them personally in jeopardy of being accused of criminal behavior. This is all laid out directly or clearly implied in the Uniform Code of Military Justice (UCMJ).
The six Democrats have accused the Trump administration of “pitting our uniformed military and intelligence community professionals against American citizens,” by using them in American cities to enforce Republican anti-immigration policies. Imposing military personnel as a domestic police force in any locality is indirectly forbidden by the Constitution in the First, Fourth, Fifth and Fourteenth Amendments, and explicitly forbidden by the Posse Comitatus Act of 1878.
Republicans are engaging in their usual clumsy distortions, claiming the six Democratic lawmakers are telling soldiers to disobey lawful orders. That’s not only a distortion, that’s an outright lie that betrays their complete lack of political conscience. The president himself, in egregious disregard of any semblance of constitutional reality, accused the lawmakers on social media of being “traitors,” worthy of being jailed and even hanged. This madness is coming from the “commander in chief.”
What the Democrats actually said was this: “You can refuse illegal orders. You must refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.” The UCMJ makes it clear in Article 92 that soldiers must obey only “lawful” general orders or regulations. It says nothing about having to obey “illegal” orders. How could it, when every soldier takes an oath to “support and defend the Constitution of the United States,” which establishes the nature of lawfulness in our nation? The Constitution is supreme. Valid laws conform to the Constitution and are therefore protected by it. A poll of 818 service members conducted by The Conversation of the University of Massachusetts Amherst last year, showed that four out of five of soldiers understood that they must always obey lawful orders and disobey unlawful ones.
The Posse Comitatus Act of 1868 was last updated in 2021. It protects a state’s right to conduct its own domestic law enforcement activities. The Act allows use of military personnel to police American citizens only if the governor of a state invites such help, as in the case of a natural disaster. The invitation is the key. It’s illegal to impose the use military personnel upon a state.
Bringing a SLAPP action siccing the FBI on veteran legislators for speaking their minds is the brutal and irresponsible behavior of politicians who apparently don’t take their own oaths of office seriously enough not to offend the Constitution they vowed to protect. Those six Democratic members of Congress now find themselves the victims of attacks that squander their time, drastically undermine their finances, frighten their families and generally terrorize their lives, all for exercising their sacred freedom of speech.
Is this America or a confederacy of bullies? Has the GOP turned into a gang of ideological thugs hell bent on undermining our open society and replacing it with a horrific system of institutionalized oppression? It’s getting harder and harder every day to say no.
*Nullius in verba: take nobody’s word for it
Throughout the world it should be illegal and morally deranged for officers of federal governments to threaten their citizens with political reprisals and terrible punishments for the “crime” of dissent. Yet throughout history, this assumption has been trampled whenever a dictatorial regime has held power. It happened, among other places, in Nazi Germany. It is now happening here. In our modern verbiage, we call this fascism. And it doesn’t happen suddenly. Its perpetrators carefully prepare the conditions necessary so that a compliant and cowed population accepts it. Today large numbers of people here are opposing the government’s policies and resisting in different ways. I still hope for a tipping point. But it would have been so much more difficult for the government to impose this authoritarian state and our resistance would be so much stronger and farther along if we had noticed earlier.