Editor’s Note: This is an opinion column. The thoughts expressed are those of the author.
The President of the United States has occasionally adopted an unorthodox method of providing guidance to military commanders – via Twitter. Contrary to some opinion, these tweets are legally effective orders under military law the moment they are issued, despite their non-conformance with normal processes and their untraditional nature.
For example, on April 22, 2020, responding to provocations by Iran, which recently resumed harassing U.S. Navy ships in the Persian Gulf with small, fast attack boats, President Trump issued a tweet noting “I have instructed the United States Navy to shoot down and destroy and all Iranian gunboats if they harass our ships at sea.”
This wasn’t the first time: a few months ago, in the wake of his grant of clemency to convicted Navy SEAL Chief Petty Officer Eddie Gallagher, President Trump tweeted a directive to the Navy to discontinue administrative proceedings to strip the special operator of his Navy SEAL trident, evidence of his qualification as a SEAL. And in July 2017, the president lit the news cycle afire with an early morning series of tweets purporting to ban transgender persons from serving in the armed forces.
Each time, the news was filled with statements from senior military leaders saying no policy has changed as a result of the tweet, or minimizing the legal effect of the direction issued by the President. In response to the Iranian boat engagement tweet, Deputy Secretary of Defense David Norquest noted “the President issued an important warning to the Iranians. What he was emphasizing is, all of our ships retain the right of self defense.”
But in fact was that all he was saying? The tweet, taken literally, removes a commander’s discretion not to escalate a provocation by requiring the Navy to “shoot down and destroy” Iranian gunboats harassing US Navy ships.
What gives? Did the president issue an order, or didn’t he? Of course he did: each of these tweets is a facially valid order, on a matter clearly within his authority as Commander in Chief, and legally effective irrespective of form. How it was handled and acknowledged by DoD is a different question.
At maximum, the tweet orders were legally valid and operative when published. At a minimum, they shifted the burden to Pentagon leaders to seek immediate clarification in the same way as though they might have received an unclear verbal or written order, irrespective of form.
Social media’s consensus, and the views of some experts who should know better, including the Secretary of the Navy himself, seems to have been “a tweet is not an order.” Because the order doesn’t look like orders to the Departments of Defense and Homeland Security usually look? Because a tweet doesn’t have the requisite normal formality of an Executive Order or a policy memorandum from the President?
What makes an order an order?
It is true the president usually and historically has transmitted his orders to the Departments of Defense and Homeland Security, particularly on matters of policy significance, through Executive Orders and Presidential Directives (the precise names of which have changed over time and have included National Security Action Memoranda, National Security Decision Memoranda, Presidential Directives, National Security Decision Directives, National Security Directives, Presidential Decision Directives, National Security Presidential Directives, and Presidential Policy Directives).
These orders and directives are usually the subject of intensive interagency processes, staffing, and negotiation, and reflect the president’s decision on competing components surfaced during interagency staffing. But “usually” should not be mistaken with “required.”
For an order from the Commander in Chief to the Department of Defense to be effective, it need only meet four criteria (Manual for Courts Martial, Section IV, para 16 (Article 90, UCMJ and explanation)):
- It must be issued by the Commander in Chief regarding a subject within his jurisdiction under Article II of the Constitution to another person.
- The order must be lawful.
- The order must be genuine (i.e. not spoofed or faked or otherwise suspect in terms of authenticity).
- The order must give comprehensible direction in terms of a task or policy change.
It does not have to be well-crafted or articulate to be valid. The tweet orders were legally effective the instant the 1’s and 0’s were received and read by individuals bound by the president’s direction.
What orders usually look like
The usual process of orders issuance from the president is more regular and process-governed. For example, shortly after the transgender order tweet, the president transmitted thoughtful policy guidance to the Department of Defense on “the Defense Industrial Base and Supply Chain Resiliency” via Executive Order in a manner to which agencies are understandably accustomed.
In 2012, President Obama issued PDD-19, directing the Department of Defense, among other agencies, to take certain actions with regard to “Protecting Whistleblowers with Access to Classified Information.”
These are two examples of the “normal” process by which the chief executive, acting as commander-in-chief, transmits orders to the Department of Defense. But these are not exclusive methods, and their non-use does not automatically confer illegitimacy to a presidential order.
What is required for an order to be valid is that it is issued by someone with authority to do so, the order is lawful, the order is authentic (i.e. not spoofed or faked or otherwise suspect in terms of genuineness), and it gives direction. It does not have to be specific, well-crafted, or articulate to be valid. It merely has to be legal, authentic, within the issuer’s authority, and directive. The tweet order met all four criteria.
Presidents occasionally issue verbal or even non-verbal orders:
- “Protocol officer, please clear my schedule for today. I do not feel like taking the appointments on the calendar.”
- “Military aide, please accompany me to Marine One for departure to Andrews Air Force Base for our trip to the G-20.”
- “Mr. Secretary, on that Special Finding I just signed authorizing the special operations raid, I don’t want to hear about ANY civilian casualties.”
- “Major Johnson, I sure wish I had another piece of that coffee cake we served that Minister of Defense this morning when we were talking about Foreign Military Sales.”
- A hand-wave to a general signaling that he should discontinue his briefing.
All of these are valid orders, whether express or implied. There is no requirement for them to be in written form in order for them to exist as legitimate exercises of the president’s Article II authority.
So why would a tweet be any less valid?
Orders in 280 characters or fewer
The president’s Iranian gunboat tweet is unambiguous: if taken seriously, and not casually downplayed by subordinate officials and commanders, it changes the rules of engagement with regard to small boat harassments in the Gulf, even if the normal rules of engagement change process set out in military regulations is not followed. As the president, he has that authority.
Similarly, the transgender tweet order read, “…the United States Government will not accept or allow Transgender individuals to serve in any capacity in the U.S. Military.”
Similarly, the Gallagher tweet directed: “The Navy will NOT be taking away Warfighter and Navy Seal Eddie Gallagher’s Trident Pin. This case was handled very badly from the beginning. Get back to business!”
The tweet orders originated from the Twitter account @realDonaldTrump , a known account used by the president, with a description therein reading, “45th President of the United States of America.” The Executive Office of the President also sponsors a second “official” account, @POTUS, with a description therein also reading, “45th President of the United States of America.”
The president has publicly embraced both accounts, lending an imprimatur of officiality to both of them. He has used @realDonaldTrump to communicate on a variety of official topics since inauguration and never disavowed the account as anything less than a second official Twitter account of the President.
He has not only not disowned the “transgender ban” tweet, but his official spokesperson also doubled down on it the next day, describing the apparent policy change as a “military decision.”
The afternoon of the Gallagher tweet, the Navy Chief of Information observed there was a legitimate order begging some clarification: “The Navy follows the lawful orders of the President” and, in fact, the Navy suspended pending board reviews in order to clarify the President’s order. There is little doubt the tweet order was authentic, in that it originated from the president without question.
Second, the tweets gave direction — an implied order to the Department of Defense to ban transgender personnel from service and an arguably more direct order to discontinue the SEAL debadging process. While Presidential orders to the armed forces usually are transmitted in different formats (via formal processes after robust staffing), constitutionally, these processes are mostly irrelevant; they merely represent good ways of doing business to prevent misunderstanding and confusion about direction and authority.
The president, acting as commander-in-chief, issued an order in a very unconventional and unorthodox way. That does not affect the validity of the tweet orders at all. So long as the tweet orders were within his authority as commander-in-chief, the issue is settled.
The tweet orders, though unconventional and inconsistent with the usual manner of transmitting direction, remain presumptively valid — in fact, absent evidence of manifest unlawfulness, all military orders are presumptively valid, as if he just called the Secretary of Defense and verbally directed any other military task or policy change.
A historical precedent
Does banning a category of personnel from serving by executive fiat, or directing the cessation of warfare qualification reversals, fall within the president’s authority under Article II of the Constitution? The commander-in-chief’s power is not further described in the Constitution beyond the mere use of the term, but traditionally it implies broad discretion over the administration, organization, training, equipment, deployment, and conduct of the armed forces.
The seminal case, of course, is Youngstown Sheet & Tube Co. v. Sawyer (1952), where the U.S. Supreme Court overturned President Truman’s seizure of a steel mill in the face of a labor dispute during the Korean War in order to keep war material production sufficient to meet the military’s needs.
The case turned on the fact President Truman seized the mills in contravention to Congress’ express intent in the Taft-Hartley Act of 1947, in which Congress considered and rejected the policy concept of seizures like this one. In grounding the opinion on the collision between the president’s exercise of Article II authority to seize and Congress’ rejection of that authority with Taft-Hartley, the Court implied that in the absence of a Congressional restriction or restraint, the president has wide latitude so long as there is a connection to his Article II commander-in-chief power.
Justice Frankfurter’s concurrence deftly lays out guidance for future courts deciding the scope and division of the shared powers between the president and Congress, laying out three categories:
- Occasions when Congress has granted express or implied authorization to act, where the president’s power is at its maximum;
- Cases where Congress has not acted, where the president must act within his own inherent Article II powers; and
- Cases where the president seeks to act in contravention to Congress’ will, where the president’s power is at its “lowest ebb.”
President Obama’s constitutional authority to order the Abbottabad raid that killed Osama Bin Laden was a Category 1 action, relying on a statute governing approval of covert actions. President Roosevelt acted within his Category 2 authority with Executive Order 8802, requiring blacks to be accepted into job-training programs in defense plants and forbidding discrimination by defense contractors.
Relying on the same authority, President Truman expanded this initiative by effectively desegregating the armed forces in 1948, issuing Executive Order 9981 on July 26, 1948. These two actions serve as precedent for the proposition the President can change personnel policy within the armed forces on his own Article II authority.
Finally, the obstacles for President Obama to permit open service by homosexuals were greater, however, as it required a statute to reverse a prior Clinton-era law permitting the so-called Don’t Ask, Don’t Tell policy. The delay in Don’t Ask, Don’t Tell repeal derived from the fact the executive action relied on Category 3 authority, requiring Congress to change the Don’t Ask, Don’t Tell statute to permit open service.
Similarly, President Obama’s authority to close the detention facility in Guantanamo Bay ran headlong into Congressional prohibition, as Congress has included language in multiple National Defense Authorization Acts preventing the use of appropriated funds to close the camps and move the detainees to the Continental U.S. for further legal proceedings and detention.
Because Congress has not spoken on transgender service or SEAL badge qualifications, the tweet orders relied on Category 2 authority alone. Congress clearly has Article I authority to reverse or modify presidential proclamations on matters of military personnel policy, under the enumerated “make rules for the government and regulation of the land and naval forces” power appearing at Article 1, Section 8, Clause 14.
Having not exercised that power, the president’s independent Article II power, under Justice Frankfurter’s well-accepted formulation, is at its apogee. In June 2016, when Secretary of Defense Ash Carter, after years of policy evolution, took the first step to lift the long-existing ban on transgender servicemembers, his authority derived from President Obama’s constitutional Article II authority alone.
Clearly, if President Obama enjoyed the authority to cause the ban to be lifted, President Trump enjoyed the same authority to reverse that action, though in the unusual form of a tweet. And because Congress has only prescribed standards regarding badges and awards in a few narrow categories, such as standards for the Bronze Star, Legion of Merit, Purple Heart and Medal of Honor.
Interestingly, with regard to the transgender tweet, the Chairman of the Joint Chiefs of Staff is on record noting the U.S. military would make “no modifications to the [then] current policy until the president’s direction has been received by the Secretary of Defense and the secretary has issued implementation guidance.”
Since the president tolerated this delay and did not countermand Gen. Dunford’s statement, it is a safe bet the Department of Defense coordinated with the president asking for time to implement his order, and for him to reduce it formally to writing.
In fact, that is evidence the Department of Defense acknowledged an order had been issued requiring clarification and further details. Moreover, the statement is irrelevant to the issue that the lawful order was issued and that the president is merely tolerating delay in its obedience.
If he were so inclined, the president could have called the Secretary immediately and said, “I have decided against waiting. I want every transgender person in the armed forces discharged within 48 hours,” and he would have been squarely within his authority to do so, unless such an order failed the lawfulness criteria – an issue that has produced a significant amount of litigation since 2017.
Similarly, the President would be squarely within his authority to order the issuance of a Navy SEAL Trident to every sailor in the Navy who scored first class on the annual swim qualification.
Each order, no matter how unwise, would be as valid as ordering Marine One to come to the White House with no notice to take him to the site of a natural disaster in Western Maryland. All three orders would be difficult tasks. All three orders would produce scrambling and chaos to meet the commander-in-chief’s expectations. And all three would have equal presumptive constitutional validity, barring a subsequent legal showing of unlawfulness.
That is not to say there might not be consequences to a rash order to discharge transgender troops or a mass issuance of SEAL Tridents to the traditionally unqualified. Chief among them would be litigation of the “lawfulness” issue. The media response would be deafening. There might be protest resignations. Veterans groups would rally. There would surely be political fallout from such a rash move.
Administrative disarray in the armed forces would result from the rushed effort to discharge known transgender servicemembers or hand out Tridents to good swimmers. Discharged service members would have claims or grievances against DoD for lost annual leave or other entitlements. But as a raw exercise of constitutional power, doing so, while imprudent and chaotic, would be within the president’s powers.
Congress has not touched this subject, likely for a variety of political reasons — other legislative priorities have been more important, the transgender issue was radioactive in an election year last year, and military warfare qualification devices are traditionally left to the Department of Defense’s internal management discretion.
But Congress has not acted, leaving the fields wide open for the president to occupy — and occupy it he has. The president’s tweet orders, while apparently not well-coordinated with the communities of interest, particularly the Department of Defense, and while abnormal and inconsistent with usual practice, were within the president’s constitutional powers to order.
One does not have to like or favor an outcome for it to be lawful.
Finally, the tweet orders become particularly noteworthy if the president chooses to use that medium to communicate more operationally relevant, time-sensitive orders, where the opportunity to clarify and calmly reconsider the order does not exist for temporal reasons.
While normally there are procedures for the president to clearly transmit timely orders to a combatant commander, there is no constitutional requirement for him to use that process. In other words, we should recognize the well-defined process is better, more reliable and more prudent, and why a strong White House chief of staff and cabinet members are particularly important in this presidency – but not confuse what usually happens for that which legally or constitutionally is required to happen.
Tweet orders that meet the legal hallmarks of an order – not facially illegal, authentic, directive, and within his Article II authority – are as presumptively valid and executable as verbal orders, an order by text message, an order spoken during a televised speech, or an order written on the back of a cocktail napkin.
For persons working within the national security establishment, the challenge is to expect orders may not be transmitted through normal channels and processes, be ready to receive orders in novel, yet constitutionally sound, modes, and to seek clarification where warranted.