As a retired senior officer in Pocatello I shared remarks at the Idaho State University Army ROTC Commissioning on May 4, 2019.

I asked the soon-to-be new officers: What is your job? I told them, same as mine. It’s in our commissioning oath. Support and defend the constitution of the United States against all enemies foreign and domestic.

Why do we do this job? For me, the why of our armed forces job is in the preamble to the Constitution. We the People of the United States — all of us, not just a few. To form a more perfect Union. To establish Justice for all. To insure domestic Tranquility. To provide for the common defense. To promote the general Welfare. To secure the Blessings of Liberty to ourselves and our Posterity. This preamble is a simple why of our constitution. The articles and amendments are what and the how of our governing laws. What is the why of America for you? Think about the why of America and think about the foreign and domestic enemy problems you want to help solve.

Many of us veterans can’t recall much instruction in the nuts and bolts of the Constitution that is central to our oath of office. If we had such instruction, we might learn that founders recognized that errors of governance, like military orders, could occur so checks and balances, oversight mechanisms and healthy skepticism are embedded in the Constitution.

In the military we are expected to obey orders of the officers appointed over us. That oath is not to obey all orders. It is to “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” When in combat we often have rules of engagement (ROE) that define the circumstances, conditions, degree, and way the use of force, or actions which might be construed as provocative, may be applied. In the mix of military orders and ROE, most are lawful, but some are not. Not every case is clear-cut. Soldiers taking orders in combat must act quickly and don’t always have time to calmly deliberate on every decision. Asking soldiers to make fine legal distinctions in combat or else face court-martial is akin to asking them to sail between Scylla and Charybdis.

The Uniform Code of Military Justice provides more detailed rules, which if violated may be adjudicated under the Manual for Courts Martial. In the early years of my active service the My Lai massacre defense, that troops were under superior orders to kill unarmed civilians, was denied. The court noted that, “For 100 years, it has been a settled rule of American law that even in war the summary killing of an enemy who has submitted … is murder.” WWII and other war crimes trials uphold this principle. Rule 916(d) of the Manual for Courts Martial says: It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

In the current era it may be harder to discern an unlawful order even with ordinary sense and understanding. A Bush era memo declared legal the practice of rendition, taking captives to secret locations for torture. Troops convicted by military courts of atrocities have been pardoned by Trump. Women and children at our border are declared enemies, armed forces sent to intervene. Active duty and civilian defense people prohibited from lawful testimony are then punished for disobeying this order. The president tweets that he will order the military to destroy cultural sites in Iran, totally destroy North Korea with fire and fury and invade Venezuela. Trump ordered a drone-enabled assassination in Iraq.

The Senate impeachment vote on Feb. 5, 2020, signals that Trump has executive powers above the Constitution, above congressional or court oversight. Theoretically Trump could send a tweet launch order to a nuclear unit. Yet on Feb. 13, a bi-partisan vote requires Trump to get congressional approval before taking war-like actions against Iran.

I will ask our congressional delegation to develop better guidance for active duty and national guard forces to discern what is a lawful or unlawful order to use or threaten deadly force in these confusing times.

Larry Gebhardt of Pocatello is a retired Navy submarine captain who currently works as a manufacturing consultant.