It's late on a weekday afternoon and a group of military officers -- the most senior leaders of every branch of the armed forces -- are sitting around a wide wood table under frosty overhead lights in a windowless conference room at the Pentagon.
After days of intense protests in several cities across the country, the defense secretary says the president is getting ready to order a massive deployment of armed troops to replace local police and bring a stop to political opposition. As the group slowly begins to discuss the details of sending active-duty troops to quash protests on American soil, one of the officers stops the group with a question.
"Is any of what we're discussing here even legal?"
The entire scenario is a work of fiction, but given presidential campaign rhetoric as Americans head to the polls in November, Military.com spent several months trying to unearth what existing safeguards and policies are in place to protect what has long been considered a hallmark of the U.S. -- an apolitical military that uses its power to fight the country's enemies, not its own citizens.
In speaking with more than a dozen Pentagon officials as well as outside experts, what emerged was a landscape where few concrete legal protections exist to prevent an abuse of power by a president, especially if that president chooses to lean on the Insurrection Act, a vaguely worded law originally passed in 1792.
Military.com reached out to the civilian and military leaders of every uniformed branch of service with a trio of direct questions: If a potentially unlawful order is received from the White House or issued by a defense secretary, what is the review process to determine whether the order is legal, who triggers the review, and who conducts the review?
The requests made no mention of a specific president or the specifics of potential orders, but rather asked about existing policies.
None of the services offered any comment on the record, and some didn't even reply to the inquiries.
Military.com reached out to the Joint Chiefs of Staff, who also declined to comment.
Finally, the office of the defense secretary, after several weeks of queries, provided a response.
Pentagon spokesman Maj. Gen. Pat Ryder said in an emailed statement that "lawyers are available to advise military leaders -- including the secretary of defense, the chairman of the Joint Chiefs of Staff, and combatant commanders -- regarding the legal and prudential impacts of orders, as well as the legal effects and consequences such orders may have."
Defense officials also said that, especially at those senior levels, legal reviews of most orders are part of the process, are conducted by lawyers assigned to the office of the commander or secretary, and do not need to be specifically requested.
Experts say those lawyers do not have the authority to stop a commander from acting and may face extraordinary pressures, given they report to that commander, but they are available to provide a review.
Uniformed commanders themselves also have a specific obligation to reject an order that's unlawful, if they make that determination.
All military members swear to "preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic." Within that oath is the implication that service members hold allegiance to the rule of law.
The oath of enlistment goes on to ask service members to follow orders, but adds that it must be done "according to regulations and the Uniform Code of Military Justice," or UCMJ.
Both Article 90 of the UCMJ, the charge of willfully disobeying a superior commissioned officer, and Article 92, failure to obey an order, say that they apply only to lawful orders.
Broader legal precedence holds that just following orders, colloquially known as the "Nuremberg defense" as it was used unsuccessfully by senior Nazis to justify their actions under Adolf Hitler, doesn't absolve troops.
While the scenario painted at the opening of this story is imagined, indications of how former President Donald Trump might want to use the military on U.S. soil if he is elected again have begun to surface, despite the Posse Comitatus Act of 1878 that generally bars the use of federal troops in law enforcement actions.
During a March 2023 rally in Iowa, Trump suggested that he would use federal troops in cities like New York, Chicago, Los Angeles and San Francisco, which he argued have become crime dens.
"We cannot let it happen any longer. And one of the other things I'll do -- because you're supposed to not be involved in that, you just have to be asked by the governor or the mayor to come in -- the next time, I'm not waiting," Trump said.
Plans by groups aligned with Trump to potentially use the military in mass deportation efforts have also been released, and the concept itself was endorsed by Trump in interviews with Time magazine published in April.
But troops aren't generally trained for law enforcement actions like those suggested by Trump and his allies, and military officials who spoke with Military.com voiced concern about how well they would handle being called upon to police fellow Americans.
"Uniform personnel are very uncomfortable with doing missions that they're not trained for or equipped for," said a lawyer who was previously a senior judge advocate for the military and advised top officials about the legality of orders throughout the previous Trump administration. The service member was granted anonymity in order to discuss sensitive topics. "We're uncomfortable with the notion of policing U.S. citizens."
They also stressed that sending unprepared troops to police Americans risks a "'Kent State-like' outcome, referencing a 1970 incident in which 28 Ohio National Guard soldiers opened fire on a group of unarmed, anti-war protesters, killing four and wounding nine others. After a later trial, the Guardsmen said they opened fire because they were fearful and anxious.
The legal picture got murkier after a Supreme Court ruling earlier this month that determined that a president is legally immune from prosecution for any actions that are deemed official, which seemingly covers military orders -- whether those orders themselves are legal or not.
Ryder was pressed in public briefings after that ruling about the question of unlawful orders from a president, but the Pentagon's top spokesman told reporters that he didn't want to get into hypotheticals and that "every situation has to be assessed on its own merit" as well as "the context of the situation."
But experts in military law who spoke with Military.com for this story noted that, when confronting the idea of a chief executive who is determined to employ active-duty forces on U.S. soil, and potentially against U.S. citizens, legality is not the right way to think about the issue. There's a legal mechanism that might allow the president to sidestep restrictions on using troops.
The Insurrection Act
Both Trump and a number of groups aligned with the former president have said that Trump, if elected, would invoke the Insurrection Act to allow him to use troops for his domestic agenda.
The law was first passed in 1792 and largely cemented in 1871. It offers broad, sweeping and, critics say, ill-defined powers to the president.
The law says that "whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws ... he may call into federal service such of the militia of any state, and use such of the armed forces, as he considers necessary."
An 1827 Supreme Court ruling found that the president alone can decide to invoke the law and courts may not review or second-guess that determination.
The Brennan Center for Justice, a law and public policy research organization at the New York University School of Law, noted in a 2022 paper that "the Insurrection Act fails to adequately define or limit when it may be used and instead gives the president significant power to decide when and where to deploy U.S. military forces domestically."
The lawyer who previously served as a judge advocate agreed with that assessment.
"All of us as American citizens should have an uneasy feeling about any service members policing our country," the lawyer said.
One scenario the lawyer laid out was an attorney general approaching the president with a concern that he or she doesn't have a sufficient number of federal law enforcement officers to deal with violence or unrest and making a request to bring in military forces.
"[If] that order were to come to the Department of Defense ... I struggle to see where a lawyer in DoD would tell a senior DoD leader that the order was not lawful under the Insurrection Act," they said.
Such a scenario would require only the agreement of another cabinet secretary. It was even planned out in an April 1969 memo to then-President Richard Nixon titled the "interdepartmental action plan for civil disturbance."
Active-duty troops were deployed in 2020 amid the protests and demonstrations that came in the wake of the killing of George Floyd at the hands of police in Minneapolis.
In June of that year, around 1,600 soldiers, including elements of the 82nd Airborne Division, were deployed to the areas outside of Washington, D.C., but were never actually moved into the city. Troops from the 82nd Airborne Division were sent home fairly quickly but over the objections of the White House.
The move was perceived by D.C. leaders as a heavy-handed effort by then-President Trump to tamp down on protests that he argued were not being dealt with severely enough.
D.C. Mayor Muriel Bowser ended up forcing some troops out of their hotels over a dispute about whether D.C. or home states were paying for the accommodations.
With the uncertainty surrounding how the Insurrection Act might be used, Congress could step in to narrow the scope of the law, though that appears unlikely.
Some legal scholars have suggested changes such as adding provisions allowing Congress to be a check on the act's use and greatly clarifying what conditions give a president authority to invoke the law.
"It is critical that the Insurrection Act specify what actions are permitted and what actions are prohibited, lest it become a vehicle for presidents to assert unlimited authority backed by military force," two scholars at the Brennan Center wrote in a 2023 legal journal article.
Sen. Richard Blumenthal, D-Conn., a senior member of the Homeland, Armed Services and Judiciary committees, started such an effort in 2020, but it foundered until he revived it again earlier this year. However, Congress has historically struggled to rein in the powers of the presidency.
If Not the Lawyers, Then Who?
Ryder, the Pentagon spokesman, stressed in his emailed statement to Military.com that commanders and leaders in the military are "provided with training on the principles, requirements, and legal and ethical responsibilities associated with leadership and command to enable critical thinking and sound judgment when directing or implementing decisions, to include orders."
A spokesperson for the Chief of Naval Personnel, in response to Military.com's query on procedures, noted that the service's officers receive ethics training "at various career points" and that admirals get more training as they are promoted from one star to four stars.
"The training focuses on ethical concepts, impacts and understanding in a way that ultimately promotes and leads to ethical decision-making," the spokesperson said.
However, despite that focus on ethical behavior and concern from leaders about what any given mission may mean for service members on the ground, experts say that the military is ill-equipped to be a bulwark against a president who aims to employ it in an unlawful way or for their own gain.
Yale legal scholar Eugene Fidell told Military.com that he doesn't think that "the armed forces' officer corps [are] Praetorian guardians of American democracy."
"They're the defenders of our country, but that's not an institution that was built to defend democracy as such," he added.
Both Fidell and the former judge advocate said that, if an order is deemed lawful, a military commander who still has objections has little recourse but either to appeal to some higher echelon, carry out the order, or resign.
However, Fidell said it's unlikely that the latter option will become popular.
"We don't have a tradition of resignation in protest in the armed forces," he said. "It's happened so rarely that you could probably count the number of instances on one or maybe two hands."
Instead, military officers often choose to express their displeasure or disagreement with an administration's actions through anonymous leaks to media or, in the case of the Trump administration, leaders at the Pentagon simply ignored orders they disagreed with in the hopes the mercurial president would forget, or treated them as musings rather than official proclamations.
"We have a new array of forces, of political forces, in our country and so we're breaking, sadly, some new and scary ground," Fidell said.
-- Steven Beynon, Drew Lawrence and Thomas Novelly contributed to this report.
Related: What to Know About the Supreme Court Immunity Ruling in Trump's 2020 Election Interference Case
