Trump Says Urging Troops to Refuse Illegal Orders Is “Sedition.” This Air Force Officer Once Did Just That.
In 2011, Air Force Maj. Richard Rynearson refused a drone strike he believed was unconstitutional in a real-world test of the debate now consuming Washington.
More than a decade ago, Richard L. Rynearson walked into work one day and found himself faced with the kind of decision President Trump now says is “punishable by DEATH” and that congressional Democrats insist the law demands.
Rynearson was an Air Force major at Cannon Air Force Base in Clovis, New Mexico, where he flew the MQ-9 Reaper, an armed drone that had become a go-to weapon in the war on terror. He was no stranger to lethal missions, but what he heard at a pre-mission briefing in 2011 gave him pause. The target was an American citizen.
“Right there on the spot I had to make a decision: do I fly this mission to assassinate an American citizen without due process, who is not an imminent threat and who is not even located in a war zone,” he said.
“I refused the order right there,” he recalled later. “I said, ‘I can’t do it. This violates the Constitution.’ Everybody was stunned. They thought I was joking. Then they felt embarrassed because they thought I was judging all of them.”
A Case Study
Rynearson’s little-known refusal to follow what he viewed as an unlawful order offers an insider’s view of the debate now boiling over in Washington. A furious president last week accused six Democratic lawmakers, all veterans of the military or intelligence community, of treason after they reminded service members that they must refuse illegal orders.
While politicians trade accusations about sedition and legal duty, Rynearson lived that choice in real time, with his career, his retirement benefits, and even his freedom at stake. And the outcome in this case shows that despite the bluster and threats of courts-martial from the president and his administration, when an officer stood on the Constitution, the military ultimately backed down.
There are clear parallels between Rynearson’s case and the issue that prompted the Democrats’ message to the troops: drone strikes on suspected drug-smuggling vessels in the Caribbean and eastern Pacific that have killed about 80 people. Like the 2011 operation he refused, these maritime strikes involve lethal action outside a war zone, raising questions about constitutional authority, due process, and whether service members could be held personally liable.
In a brief email exchange, Rynearson declined to answer my questions unless journalist Glenn Greenwald would vouch for me, saying he does not trust journalists. I’ve never spoken with Greenwald, so this account relies on his public statements and military records he has posted online.
A Career-Defining Moment
Before he made his fateful decision, Rynearson said he had long known there were missions targeting American citizens and had hoped his unit, the 33rd Special Operations Squadron, would never be assigned one. When he learned they had gotten the assignment, the decision landed hard.
“I’m seeing my career flash before my eyes,” he said in a recorded Zoom conversation with a small group of law students that he posted on YouTube.
Since joining the Air Force out of Florida State University in 1996, Rynearson had deployed to Kosovo and Afghanistan. He earned a Distinguished Flying Cross with Combat “V” co-piloting an AC-130 on the opening night of the Iraq War. “The actions of Captain Rynearson contributed directly to the successful capture of the Al Faw petroleum pipeline intact, paved the way for the American-led ground war, and ultimately saved thousands of coalition lives,” the citation reads.
When the mission to kill an American citizen presented itself, he was five years away from retirement. Refusing a direct order meant risking the benefits he had spent 15 years accruing. But to Rynearson, the choice was clear.
He took his officer’s oath to protect and defend the Constitution seriously. He believed that the order to kill an American citizen who was not in a war zone and, in his view, did not pose an imminent threat violated Madison’s words in the Fifth Amendment, which declares that “no person shall be … deprived of life, liberty, or property without due process of law.”
Initially, he said, commanders simply “appeased” him by not scheduling him for that mission. But after a leadership change, a new commander ordered him to participate, this time with a witness present.
He refused.
On September 23, they gave him a written order. He refused in writing.
The “adventure,” as he called it, had begun. Five months after his initial refusal, leadership suspended his security clearance, marking him as “a criminal at best and a traitor at worst,” he wrote to his commanding officer in response. He was reassigned to another unit and placed in an office job with minimal responsibilities.
Rynearson faced the possibilities of administrative separation, or even a court-martial and prison if the order was found to be legal. Losing his security clearance only compounded the risk, preventing him from receiving legal advice from the military attorney assigned to represent him.
Wading into the current debate over boat strikes, Tim Parlatore, a legal adviser to Defense Secretary Pete Hegseth, posted a video Wednesday saying that service members could be court-martialed if they refused to follow legal orders. “Encouraging troops to gamble their careers and freedom on personal interpretations of partisan politics, not solid law?” he said. “It could spark chaos and undermine the chain of command that keeps us safe.”
But a court-martial could also be a double-edged sword for the administration. It could force them to defend the legality of an order to kill civilians who are not in a war zone, and their novel interpretation of how drug smugglers are engaged in active hostilities against the United States.
Back in 2011, as Rynearson’s standoff with his command intensified, the Pentagon’s top lawyer, Jeh Johnson, paid a visit to Rynearson’s squadron “to convince them that it was lawful to assassinate Americans,” he wrote on his blog, Pick Your Battles. He was not allowed to attend because his clearances were suspended.
The mission went forward without him. Rynearson has never publicly named the target, saying the identity distracts from the constitutional issues at stake, but the timing and his public comments point to Anwar al-Awlaki, the American citizen described as AQAP’s external-operations leader who was killed in a 2011 drone strike.
Born in New Mexico to Yemeni parents, Awlaki reportedly served as the “spiritual advisor” to two 9/11 hijackers during their time in San Diego, according to the joint congressional committee’s report on the attacks. Awlaki also exchanged emails with Major Nidal Malik Hasan before he killed 13 in a shooting rampage at Fort Hood, and helped plan a December 2009 attempt to blow up a Detroit-bound jet.
On September 30, 2011, Awlaki was killed in Yemen by a Hellfire missile fired by a Predator drone that took off from Djibouti and was operated by a pilot at Cannon AFB, according to Hunter Killer, co-written by Lt. Col. Mark McCurley, a drone pilot involved in the operation, and Kevin Maurer. Also killed in the operation was Samir Khan, a 25-year-old American who started a magazine for jihadists called Inspire, where he proclaimed that he was “proud to be a traitor to America.”
The next month, another drone strike killed Awlaki’s 16-year-old son, also an American.
More right than he knew
Throughout the ordeal, Rynearson maintained a crucial distinction: his duty was to the Constitution, not to his commanders, the president, legal memos, or Air Force JAGs. He saw himself, as he later put it, as a “check and a balance” on the military command.
Rynearson’s view was that even the commanders who tried to punish him often secretly admired him, because they knew he was risking his career to follow the Constitution in a way that they themselves lacked the courage to do. In his telling, Lt. Col. Steve Edwards, his commanding officer (who went on to become a major general in charge of Special Operations Command-Europe), embodied that conflict, wanting both to help him and to destroy him. Edwards insisted the order was lawful, but provided him with no documentation or evidence to support it.
Unbeknownst to Rynearson, the administration had addressed his due process concerns.
The Obama Justice Department had in 2010 produced a secret memo, written by David Barron (now chief judge of the First U.S. Circuit Court of Appeals), that acknowledged that the Fifth Amendment “likely protects [Awlaki] in some respects even while he is abroad” but addressed these concerns in sections that remain classified.
More recently, the Trump administration has reportedly authored another still-secret memo, not only blessing the boat strikes as legal but also promising immunity to all troops involved.
In Awlaki’s case, the government argued that it could lawfully use lethal force against a U.S. citizen abroad if that person was an operational terrorist leader “continually planning attacks” on Americans, posed an imminent threat of violent attack, and capture was infeasible.
While the Obama administration found Awlaki ticked those boxes, none of those factors are met in today’s Caribbean and Pacific boat strikes. The people being killed are suspected drug smugglers, not combatants or “senior operational leaders” of terrorist groups like Awlaki.
Congress has not authorized the use of military force against Venezuela or its drug networks. There is no “imminent” threat, even under the loose standards of the Obama administration, which notably found that an imminent threat “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” according to a Justice Department white paper written around the time Rynearson submitted his resignation.
Until recently, the Coast Guard and U.S. Navy routinely stopped and searched the same sort of drug boats in the Caribbean and the eastern Pacific that the U.S. military is now blowing up with Hellfire missiles.
The boat strikes have triggered an unusual convergence of alarm from human-rights officials, close allies, and even senior figures inside the Pentagon. The UN’s human-rights chief condemned the attacks as violations of international law and “extrajudicial killings.” Key intelligence partners, including the UK, Canada, and Colombia, have halted or restricted counternarcotics intelligence sharing for fear their information could be used to facilitate unlawful killings. The commander of U.S. Southern Command resigned, reportedly after questioning the operation’s legality.
Nothing exposes the flimsiness of the legal rationale more sharply than what happens to the survivors. If men who moments earlier were “narco-terrorists” unfit to walk the Earth truly posed an imminent threat as combatants engaged in “non-international armed conflict,” the United States would have been obligated to treat them that way. Instead, they were processed like ordinary civilians and quietly sent back to their home countries, where at least one was released without a single charge.
A Desperate Gambit
In an attempt to resolve the standoff, Rynearson tendered his resignation from the military.
In his letter dated Oct. 31, 2011, Rynearson said he was neither a pacifist nor a conscientious objector.
“I have done things in combat I personally considered to be immoral, but I did them without hesitation, as I understood them to be legal,” he wrote. What he was being asked to do now was so “clearly illegal” that it eclipsed even the My Lai massacre in Vietnam, he wrote.
He was willing to end his career before the finish line, a decision that he acknowledged in his letter would cost him his retirement benefits. “You have to be willing to lose it all,” he told the group of law students.
The Air Force refused to accept his resignation. Rynearson suspects the likely reason was that it would have required approval from the Secretary of the Air Force, and his commanders were too embarrassed to elevate the issue that far.
A turning point came in 2012 when the Air Force completed a review of his security clearance. The review took into account his entire military record, including multiple letters of counseling and reprimand.
Their conclusion stunned him: “On the surface, it would appear that receipt of multiple letters of counseling and reprimands would indicate questionable judgment and an unwillingness to comply with rules and regulations. However, when each incident is reviewed on its own merit, it would appear Subject is fully aware of the U.S. Constitution and has openly challenged what he perceives to be a violation of either his own rights or those of other American citizens.”
Without addressing whether the order was lawful, the adjudicator concluded that Rynearson’s refusal did not pose a security concern, noting that he was never charged or punished for disobeying a lawful order.
According to Rynearson, after the Air Force reinstated his security clearance, he returned to the cockpit and retired honorably in 2016.
Since then, he carried that same constitutional absolutism into civilian life, much to the annoyance of the Air Force, his new neighbors in Washington state, and other targets of his online trolling.
He successfully sued Chief Master Sergeant of the Air Force JoAnne Bass, forcing her to reverse his ban from an official Air Force Facebook page for criticizing one of her posts. Another Facebook dispute with a neighbor got him slapped with a “stalking protection” order, which he again challenged in court, leading Washington’s cyberstalking statute to be declared unconstitutional.
For all the friction he generates, Rynearson traces his posture back to a simple principle he believes every officer should internalize. He told the law students that it’s incumbent on all military officers to familiarize themselves with the Constitution.
“The Constitution is a small document,” he said. “You don’t need to know torts, and you don’t need to know about coining money and all this kind of stuff, but you need to take the time to read it and then figure out what your limitations are as an executive officer in the military.”
While he acknowledged that military servicemembers must often execute lawful orders they personally find distasteful, the Constitution draws clear lines that cannot be crossed.
“We are paid a lot of money,” he explained, “millions of dollars to train me personally to do a job for the American people. War is not a moral enterprise, but it is a public service job. I don’t care what is moral—I care what is legal, because what is legal is the collective morality of our society. That’s my job.”
“We have to have public servants who have the character to not just say the right thing, but to do the right things if they find themselves in such a position,” he said.
Some of us never had the opportunity to ponder the the legality question as it did not arise in the antispectic environment of of a installation, but in the field where decisions sometimes are made in seconds, while under fire.
“Nothing exposes the flimsiness of the legal rationale more sharply than what happens to the survivors. Once pulled from the warm waters of the Caribbean, the men who moments earlier were “narco-terrorists” unfit to walk the Earth are quietly sent back to their home countries, where at least one was released without a single charge.”
I love that you imply the Navy’s decision not to kill the survivors floating in the water (an actual war crime) is evidence that the entire operation is illegal.