Sen. Elizabeth Warren (D-MA) pressed President Donald Trump's nominee for commander of the U.S. Southern Command after he struggled not to contradict Defense Secretary Pete Hegseth about whether it was proper to question the legality of orders.
During a Senate Armed Services Committee hearing on Thursday, Warren sought to clarify why Hegseth has censured Sen. Mark Kelly (D-AZ), a retired captain, for "conduct [that] was seditious in nature" after he and other Democrats encouraged troops not to follow illegal orders.
"General Donovan, is it sedition for someone in the military to question whether an order is legal?" Warren asked Lt. Gen. Francis Donovan.
"Senator, in my 37 years of experience, I have received many orders over time," Donovan replied. "And when I ever have faced a situation where I need to seek clarity, I ask higher headquarters to clarify the task. Then I come back and work on that with legal advisors, the core staff, the subordinate commanders, senior listed leaders, and then present my thoughts to higher headquarters for their consideration."
"So I think what you're telling me is you have questioned whether an order is legal. Is that right?" Warren observed.
"Senator, I did not, what I believe I'm focused on here is that the legality of the order, we face orders, we carry out missions," the nominee stuttered. "And so in that planning process, we look at all aspects of each mission, each task, each order, to ensure that we're structuring the command, the force, the unit to achieve the objective."
"I appreciate that, General, but that's the question I'm trying to ask," Warren replied, "Is it sedition for someone in the military to question whether an order is legal?"
"And I thought I just heard you say that you had actually questioned orders and whether they were legal, and you sought advice," the senator continued. "So I will ask it one more time. Is it sedition to question whether an order is legal?"
"Senator, I would not use the term sedition," Donovan admitted. "I use the term basically our order and discipline, how we approach any situation where we have to accomplish a mission and provide the best capability for the task at hand."
"I'm sorry," Warren gasped. "I still can't understand your answer here. I'm just asking you a very straightforward question."
After another attempt, Donovan refused to give Warren a straight answer.
"I will stop playing dodgeball here," Warren said. "Back in 2016, Secretary Hegseth was very clear that service members have a duty not to follow illegal orders. Since then, he has repeatedly made clear his contempt for legal review, including by sidelining military legal advisors."
"General Donovan, if your legal advisor tells you that an order is illegal, will you refuse to carry out that order?" she wondered.
"I will take that very seriously if my legal advisor says that is an illegal order, and I will seek clarification from higher headquarters," the general remarked.
"Okay, but your intention is not to carry out an illegal order? Is that right?" Warren asked.
"I will never carry an illegal order, Senator," Donovan said.
"I appreciate that. That's what I want to hear," Warren concluded.
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