31 July 2017 | Jamie McIntyre | Washington Examiner
President Trump’s July 26 tweets could hardly have been clearer.
“After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow… Transgender individuals to serve in any capacity in the U.S. Military,” Trump tweeted in a series of three succinct messages Wednesday morning.
But the Pentagon is taking no action in response to the commander in chief’s expressed wishes because, Defense Department officials say, a tweet is not the same thing as an order.
“What you saw in the form of a tweet represented an announcement,” Navy Capt. Jeff Davis told Pentagon reporters Monday. “Orders and announcements are different things, and we are awaiting an order from the commander in chief to proceed.”
Last year, then-Defense Secretary Ash Carter lifted the ban on transgender troops serving openly, and directed the service chiefs to establish policy for to allow enlistment of transgender recruits by July 1. Defense Secretary Jim Mattis pushed back that deadline on June 30, and Trump’s ban came less than a month later.
The question immediately became whether all currently serving transgender service members had just been kicked out of the military.
Last week, Gen. Joseph Dunford, chairman of the Joint Chiefs, referred to the tweets as “direction,” not orders.
“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,” Dunford wrote in an internal memo that went to both civilian and military leaders last week.
But military legal experts say tweets from the president could constitute legally binding orders depending on the circumstances.
The fact the president’s words exist only on a social media platform is not the determining factor, says Eugene Fidell, an attorney who specializes in military law.
“What President Abraham Lincoln might have done by letter or telegram today might well be done by email or social media — be it Twitter, Facebook or other means.
So long as there was no question of hacking or authenticity, it makes no difference whether the tweets at issue were sent from the President’s official or personal Twitter account,” Fidell wrote in a blog post Monday. “Indeed, the new policy could have been written on a Mar-a-Lago napkin. Military law recognizes this.”
The question is whether the tweets require a specific action and require immediate compliance as spelled out in the U.S. military’s Manual for Courts-Martial, which is issued under an executive order and can be amended by the president.
Under Article 90, an order must be “a specific mandate to do or not to do a specific act.”
“President Trump’s trans tweet trio does not meet this test since it only set a broad policy, and not the particulars required for implementation,” Fidell wrote.
In other words, the U.S. military is not being insubordinate by refusing to discharge transgender troops until it gets specific orders.
“Until the armed forces issue proper implementing regulations — which experience teaches is likely to take weeks if not months — military commanders should not discharge transgender personnel,” Fidell argued.
The Pentagon says it expects to get written orders after the details of the president’s transgender ban are worked out between the White House and the Pentagon.
“I would expect something of this nature to have a piece of paper associated with it,” Davis said.
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