Pentagon ends transgender ban

[ASL]

Originally Posted by Darth Credence

It is not listed as an executive order on the White House web site. While it may be possible that a tweet could be an executive order, I believe that it would at least have to be put in the current numbering scheme.

The President could give a verbal order to do "X" and, whether you style it an EO or not, it would still be an order and would have to be obeyed (if lawful). This is academic at this point as the uniformed military service chiefs are apparently waiting for orders to come down via the SECDEF (who is probably seeking guidance from the President via his staff), but I think we're putting too much on the use (or non-use) of the term "Executive Order." It's no some magical an incantation that must be uttered (or some sacred parchment an order must be written on) before an order can (or must) be followed.

I don't need to make written orders to subordinates. I don't even have to provide written orders upon request (in spite of what you might infer from movies): a verbal order is sufficient. A failure to obey a lawful order, given in any form, is punishable under the UCMJ. So far, it seems like the President's tweet is going to be treated as a published thought, rather than an order. Fine: I'm not confident it's going to end there, though.

[thorny locust]

http://www.npr.org/sections/thetwo-w...ont-change-yet

The nation's highest-ranking military officer said Thursday that the Defense Department was making "no modifications" to current policy regarding transgender service members until President Trump gives more direction.

"I know there are questions about yesterday's announcement on the transgender policy by the President," Joint Chiefs of Staff Chairman Gen. Joseph Dunford said in a statement. "There will be no modifications to the current policy until the President's direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.

[DrRocket]

Heard a couple of local political wags on the radio on my way to work today.

They're thinking this may all be a ploy by Trump to get congress off the dime in regards to his border wall.

"Give me my wall, and I'll drop my transgender ban threat."

[thorny locust]

I would hope that wouldn't work.

The transgender ban is awful. But the wall would be even worse. It would damage at least as many people; and it would also be a major ecological disruption, a horror for many other species.

-- this may, however, indeed be a distraction. Or a temper tantrum: nobody will do what I want! I'm gonna do something they can't stop me from doing!

[Mouse]

If he starts drumming up that Wall BS again, in another thread, a wise Snopester pointed me towards this website: Mail Bricks

At this site, you can buy a brick, have a message written on it, then send it to whoever you see fit. So heck yeah, if Trump starts bloviating about the wall, we should deluge him in bricks. Make sure the messages are written in Spanish and have them say things like, "We're sorry. We'd rather have a million of you than one of Trump," or "Can we elect you? You work much harder than our president," and whatever insults you can come up with.

The downside is having to pay for the brick, which will set you back twelve bucks, but the upside is that it'll be Donald Trump and his staff who has to deal with all the bricks.

Because the best way of dealing with Donald Trump, is to follow the wise words of Samantha Bee and Keep Pissing Trump Off. Keep him so busy throwing a hissy that he can't bother to do any work, because he's bawling on Twitter.

[ASL]

I'm pretty sure he'll never actually receive a brick. He might get a note from an aide (who got a not from their aide, who in turn got a note from their aide, and so on) that they have been getting a lot of bricks lately but not to worry, they've all been sold off or thrown into the Potomac. He'll probably get a kick out of it. Maybe even use some on a construction project (or at least he'll say he did). On the bright side, the US Postal Service could probably use the business. Remember the push for a letter writing campaign just so they could get people to pay for postage again?

[jimmy101_again]

Originally Posted by RichardM

Except that one can not obey an unlawful order even one from the CinC.

Correct. A US soldier most certain can disobey an unlawful order. Indeed, a solider is guilty of two crimes if they follow such an order. (The unlawful order, and the following of the unlawful order.)

Since WW2 virtually every army in the western world has adopted the rule that a soldier not only can, but is required to not follow an unlawful order.

[ASL]

I don't think the lawfulness of an order is going to be in question here, one way or the other. It would be as lawful (or unlawful) to ban transgender personnel (and to carry out orders to that effect) as it was two years ago, absent a court decision reinterpreting previous legislation or new legislation form Congress.

Don't rely on the military to fix what the electoral college (or, in the case of members of congress, voters) couldn't. That's not how (our) republic works.

[jimmy101_again]

Originally Posted by ASL

The President could give a verbal order to do "X" and, whether you style it an EO or not, it would still be an order and would have to be obeyed (if lawful). This is academic at this point ...

One challenge (of many) is, as ASL says, a tweet is just as valid a way of conveying a lawful order as a written one. But, and this is where perhaps it isn't just academic, the Turnip is certainly going to do it again, and again, and again. This isn't a one-off situation. Plus, since the order isn't actually a connected stream (it is spread over more than one tweet) it raises the possibility that an order could be misconstrued.

Using the Turnip's tweet style;
tweet1: The US nuclear forces should....
tweet2: stand down for the time being and not.... ***doesn't actually transmit through the bathroom wall***
tweet3: launch an attack.

Yes, that is a silly example but more commonplace military responses (like firing on an Iranian warship) is pretty likely. And a situation might be developing so fast that there isn't time to get things confirmed ('cause it is 4 AM and the Turnip is sitting on the toilet.)

EDIT: Indeed, it looks like it might have happened in this case.
http://fortune.com/2017/07/27/trump-...a-transgender/

...several individuals in the Pentagon reportedly feared that Trump had a different target in mind: Pyongyang.

"After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow......" Trump tweeted, leaving the world on tenterhooks.

[ASL]

Just so we're clear, I wouldn't consider an order via twitter to be a valid order, at least not for a major policy decision. Apparently senior military leaders are of the same mind. Not because of whether or not it's lawful, but because I wouldn't be able to verify the identity of the tweeter. Twitter is not secure (or not secure enough). Without being able to verify it was the President actually making or directing the tweet, I wouldn't feel obliged to abide by it, particularly if it was for something so significant. I would apply the same standard to unsecured voice communications.

Turn starboard? Sure, I'd take that over an unencrypted commercially available radio, especially if I'd been talking with the guy on the other end all day and they had the right callsign and I knew we were operating together. Turn starboard, intercept the merchant, and send an armed boarding team over to them? Yeah, I'm going to need that over a secure communications circuit. Or I'm going to need you to authenticate your identity via a cipher. Anyways... Still not a question of the lawfulness of an order, just the adequacy of the means of communicating it.

[jimmy101_again]

Originally Posted by ASL

I don't think the lawfulness of an order is going to be in question here, one way or the other. It would be as lawful (or unlawful) to ban transgender personnel (and to carry out orders to that effect) as it was two years ago, absent a court decision reinterpreting previous legislation or new legislation form Congress.

Don't rely on the military to fix what the electoral college (or, in the case of members of congress, voters) couldn't. That's not how (our) republic works.

I agree with your first point.

As to the second; the US military has been for social change before and it'll be used that way again. For example; Executive Order 9981 (https://en.wikipedia.org/wiki/Executive_Order_9981)

I'm not concerned with the military fixing the Turnip problem (they won't). I am concerned that the effectiveness of the US military is being compromised at a time when an international crisis could flare up in seconds, require a response within minutes and be complete over after half an hour. We thought events like that ended with the end of the cold war. But they are clearly back again.

[Plurabelle]

Originally Posted by Sue

Anyone who is thinking if Trump would only resign (or get kicked out of office) then everything would be peachy has forgotten that Pence is VP. This move has Pence written all over it. I doubt Trump truly cares one bit about this issue (other than using it as a distraction tactic) but Pence sure does.

You're 100% right, this is a Pence move all the way.
I fear him way more than I fear Trump, he'd like to bring us into the Handmaid's Tale.
http://theslot.jezebel.com/citing-no...-on-1797264254

[ASL]

Originally Posted by jimmy101_again

I agree with your first point.

As to the second; the US military has been for social change before and it'll be used that way again. For example; Executive Order 9981 (https://en.wikipedia.org/wiki/Executive_Order_9981)

You're half right: yes, it was indeed used that way. The operative word is used. Has nothing to do with whether it can then be "un-used."

[UEL]

Originally Posted by jimmy101_again

Correct. A US soldier most certain can disobey an unlawful order. Indeed, a solider is guilty of two crimes if they follow such an order. (The unlawful order, and the following of the unlawful order.)

Since WW2 virtually every army in the western world has adopted the rule that a soldier not only can, but is required to not follow an unlawful order.

There is a nuance. The wording in use is "manifestly unlawful". We are obligated to not follow a manifestly unlawful order. I can't be charged for following an unlawful order that is minor and/or of little impact (eg, ordered to park my service vehicle in the CO's parking spot). However, I will be charged for following a manifestly unlawful order (eg, ordered to execute a suspected sniper while in combat).

The ABCANZ militaries all have the same relative perspective on this. All orders are to be followed unless manifestly unlawful.

The rest of NATO however, has a slightly different look. All orders are not to be followed unless manifestly lawful (eg, the commander must prove the lawfulness of his order before it must be followed).

[ChasFink]

Maybe I'm wrong on this, but would past practice necessarily have to be presumed to be legal absent a specific court ruling? Could someone refuse to implement this based on a sincere belief that such discrimination is illegal in the U.S., despite the fact that it used to be common practice?

To use an extreme analogy: if the 13th amendment was somehow found to be invalid on some technicality, I doubt any modern judge, justice, or legal scholar would argue that slavery is again legal in the U.S.A.

[ASL]

Originally Posted by ChasFink

Maybe I'm wrong on this, but would past practice necessarily have to be presumed to be legal absent a specific court ruling? Could someone refuse to implement this based on a sincere belief that such discrimination is illegal in the U.S., despite the fact that it used to be common practice?

Orders issued by the National Command Authority (President and SECDEF) are presumed to be legal unless demonstrated otherwise. Or at least that's what I recall from JPME I.

So they could refuse. And make the case at their court-martial that they shouldn't be sent to the brig and dishonorably discharged or dismissed. How confident would you be that the President's order (assuming it's really an order and that gets clarified and whatnot) would be overturned by a court?

[GenYus234]

Other than (probably minor) differences in procedure and levels of punishment, it the same as a civilian disobeying an unjust law. The burden is going to be on the individual to prove the law is unjust and the individual must be willing to suffer the consequences if they cannot so prove.

[ASL]

Yeah, it's just that tasking from one's employer/management in the military has the force of law. Aside from that, it is interesting, the number of people who seem to think that the military is some sort of libertarian utopia whereby people are governed by their consciences alone and have the "privilege" nay, "duty" to disobey unlawful orders (unlike everyone outside of the military, who is allowed to violate the law just so long as their boss told them to do so?). It's almost as bad as the people who think the military makes its own laws and all anyone else can do when the regulations that govern the military appear unjust is just throw their hands up in frustration and yell "damn you, hateful military" at the clouds passing overhead. And it totally started the Iraq War, too. That was all the military.

Sorry, just venting: I just really hate the military becoming the face of whatever the the social injustice de jour is in America. Lots of people care about issues within the military while seemingly turning a blind eye to those problems in the society that it serves (the same society we must recruit from). Kind of like how we talk about police, actually... Maybe it's why I'm so sympathetic to them?

[Darth Credence]

I think there is a problem with accepting tweets as official policy, at least as this President does it. Trump's latest tweet is:

Originally Posted by Trump

Departing for Long Island now. An area under siege from #MS13 gang members. We will not rest until #MS13 is eradicated. #LESM

Is that official policy? Is it an order? Who is he ordering to not rest until MS13 is eradicated? Should the military be on it? The FBI?

Or two days ago, he tweeted:

Originally Posted by Trump

IN AMERICA WE DON'T WORSHIP GOVERNMENT - WE WORSHIP GOD!

Is that official policy now? If we take his tweets to be official policy, then we now have POTUS officially saying that you have to worship God in America.

So, are some tweets official policy, some are orders, some are him musing and sharing a random thought, and some are covfefe? How do we know which is which?

[ASL]

I don't know, what do you think?