Right to Refuse Laws Sound Good. One Veteran Isn’t So Sure.

There is a small, noble campaign centered in Boulder that seeks Refuser Protection (RP), legislation meant to protect those who refuse to follow illegal orders. RP laws would prohibit  retaliation or punishment of any person who refuses to follow any order or instruction that violates the Constitution, statute or any relevant regulations .

This campaign is led by Matt Nicodemus, founder of Sworn to Refuse (StR). Nicodemus has been engaged in this work for more than a decade and has drawn a few encouraging responses, but no definitive results, from legislators including Congressman Joe Neguse and Maryland colleague Jamie Raskin.

Niciodemus’s efforts gained elevated relevance as a result of the Trump administration’s unsuccessful attempt to indict a group of lawmakers, including Colorado Congressman Jason Crow, for making a video reminding the world that one can – must – refuse to follow illegal orders. The impetus for the video was, seemingly , the arguably illegal deployments of active military to American cities and the illegal actions of ICE agents that took place afterwards .

Rep. Jason Crow visits Buckley Space Force Base in Aurora, Colorado. (Photo: U.S. Space Force)

The lawmakers’ arguments included a broad claim that all members of the military are  already trained to know not to follow illegal commands. Congressman Crow went as far as to cite his own experience as an Army Ranger:

But let’s be really clear. The man (Trump) has never served a day in his life in uniform. I went three times to war for this country in Iraq and Afghanistan. I was a paratrooper and I was an Army Ranger. From my first day of boot camp, we were taught about the law of war. We were taught about the Constitution. Before we ever deployed, I sat my men down, my soldiers, my paratroopers, and I taught them about their obligations under the law and the Constitution. This is ingrained in service.

The video was more a publicity stunt than a selfless public service. While I support the lawmakers, it is baldly contradictory to claim that all members of the military are routinely reminded of this obligation and then say the video was to inform the military folks of their rights and obligations.

Crow’s statement is also not reflective of my experience.

I was drafted in 1966 at the height of the war in Vietnam. On my first day in boot camp we were not “taught about the law of war.” We did pushups and were taught to keep our mouths shut. For the next year I did pushups and tried to keep my mouth shut through boot camp, advanced individual training (AIT) and Officer Candidate School (OCS). In a year of training to potentially serve in an immoral war, I can’t recall a single mention of the Constitution. We were, instead, conditioned to dehumanize the enemy by using ethnic slurs (gook) and shoving bayonets through dummies painted with slanted eyes. I was lucky and served in Georgia and Thailand, not Vietnam.

Although the horrific slaughter of 504 women, children and elderly men in the My Lai massacre is emblematic of illegal military cruelty, we Americans killed as many as 2,000,000 innocent Vietnamese in our indiscriminate ignition of hellfire during the war. 

In his book, Vietnam: A War Lost and Won, prolific British author Nigel Cawthorne wrote:

“But what the Viet Cong and NVA feared most was the B-52 strikes.  They called them the ‘whispering death’ because the first they knew of the presence of the bombers high above the jungle canopy and the clouds was the whistling of the bomb.  Aerial bombardments could go on for days or weeks at a time. Even the most battle-hardened veterans lost control of their bodily functions, soiling their pants and shaking uncontrollably.  Some went mad and no one who survived could ever be cured of the abject terror a B-52 strike inspired.   A B-52 mission could drop up to 54,000 pounds of bombs on a single target . . . Tran Thi Truyen, a sixteen year-old nurse who served in a field hospital in southern Laos, recalled how intense American bombing denuded the jungle and there was no place to hide.  During her month-long march down the (Ho Chi Min) trail, she carried a rifle, a sixty-pound knapsack, and a shovel.  When American planes came overhead, her group would disperse and dig foxholes.  After the bombing had stopped, she said she could not focus her eyes and her head ached for hours.  Wounded Vietnamese soldiers were brought up the trail for her to treat in her underground hospital.   Most were so badly wounded, nothing could be done for them.”

I watched those B-52s take off from a Thai airbase, heavy with bombs, and return to the base in time for happy hour at the Officers Club. It was nauseating.

All these years later, I read with fresh horror of our slaughter of innocent Iranian schoolchildren – collateral damage on a smaller scale than our role in the genocide in Gaza, where 75,000 Palestinians are dead by way of our complicity in Netanyahu’s bloodlust.

While protecting the rare refuser is an important ethical obligation, what is needed is a broad reckoning of who we really are.

We refuse to join the International Criminal Court (ICC) because, to paraphrase our national narcissism, “Nobody can tell us what we can do!”

In a  frantic flailing after 9/11, we avenged 2,977 deaths by killing several hundred thousand innocent Iraqis, who had nothing to do with 9/11.

In Gaza, the ongoing slaughter and starvation of 75,000 Palestinians is retribution for the – admittedly horrific – deaths of 1,195 in Israel on October 7th.

In Iran, the deaths of schoolchildren and many other innocents are retribution for, perhaps, the attempts to expose the president’s involvement with Jeffrey Epstein’s international child sex ring. 

Most soldiers would be hard-pressed to distinguish between legal and illegal orders. They, like their corrupt and incompetent commander-in-chief, are not well-versed in the Constitution or other legal or regulatory matters. A careful reading of proposed Refuser Protection legislation reveals good, but overly broad and overreaching, intentions. RP laws as suggested would encourage and protect those who refuse to do anything that appears to violate a law, a statutory clause, a pledge or oath, a rule or a workplace regulation. Given the predilections of many folks to litigate, I can imagine chaos ensuing as grievances proliferate.

I doubt that Nicodemus’s efforts will spark ethical legislation in a Congress that can’t reign in an absurdly incompetent, grandiose authoritarian wannabe. While useful to look after the rights of conscientious objectors, what we must do is focus on those who issue illegal orders, defy the Constitution, and possess the power to unleash mayhem within and outside our borders.

We don’t have to protect the powerless if we hold the powerful to account. 

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