With President Donald Trump this week moving closer to sending National Guard troops to Portland, Democratic U.S. Rep. Janelle Bynum stood outside Camp Withycombe in Clackamas County — where troops are stationed — and asserted that some soldiers disagree with the mission.
“These troops, they don’t want to be here,” said Bynum, who said she spoke to Guard members at the military training center this week, then posted a video on social media.
Other Oregon leaders have expressed similar sentiments. Brigadier General Alan Gronewold, who was in charge of all Oregon National Guard troops until Trump federalized a subset of them late last month, acknowledged discontent among the ranks. In a letter to soldiers, Gronewold wrote that “some of you may have strong feelings about this mission” but that their duty “doesn’t come with an asterisk that says ‘only when I agree with the mission.’”
But can National Guard troops refuse the mission to protect the U.S. Immigration and Customs Enforcement facility in South Portland and possibly ICE agents as they venture into the community to detain immigrants?
Once deployed, can the troops refuse orders that they think are unlawful?
What would be the consequences?
Federal agencies — ranging from U.S. Immigration and Customs Enforcement to the U.S. Department of Defense — declined to answer The Oregonian/OregonLive’s questions, instead providing blanket statements or news releases with few specifics. The Oregon Military Department, which oversees the Oregon National Guard, also has referred all questions about the deployment to federal officials — which in one instance, referred the same questions back to the Oregon Military Department.
So The Oregonian/OregonLive sought answers from three experts in military law as well as three current and former guard members, none of whom has been called to duty for the Portland mission.
Here’s what they said:
Not all guard members oppose the mission.
According to Bynum, 150 Oregon National Guard troops are stationed at Camp Rilea on the Oregon coast and 200 California National Guard troops are stationed at Camp Withycombe in Happy Valley, awaiting orders to deploy into the city. Experts and current and active members say it’s important to point out that some of these soldiers certainly support Trump’s efforts to send troops into Portland.
National Guard soldiers who disagree might also be willing to take on the assignment because they want to be sure that it’s done right — with any clashes kept to a minimum.
Part of the aversion some National Guard members have to troops in Portland stems from its highly unusual nature, current and former National Guard members say. The National Guard traditionally is called to duty to help with disasters — such as wildfires, floods, ice storms and the recent COVID-19 pandemic — or to bolster military operations overseas. And some National Guard members see the Portland mission, as well as Trump’s attempts to send troops into other Democratic cities, as politically motivated.
National Guard troops can decline a mission — or try to.
Yes, but because federal officials and the Oregon Military Department aren’t answering questions, it’s unclear if this is a voluntary deployment. If it’s a mandatory deployment, a National Guard member could still decline, experts say.
“They could attempt to resign, it’s not automatic,” said Eugene Fidell, who teaches military law at Yale Law School. “If you have an obligation under your enlistment contract or your status as a commissioned officer, you can’t just walk out the door.”
One current National Guard member told The Oregonian/OregonLive that if he declined a mission, he might be declared AWOL, demoted, endure a pay cut or even be ousted from the military.
But troops who arrive in Portland might find there’s little to do.
Experts say troops that arrive in Portland may discover that the city isn’t burning, isn’t “war ravaged” and there is no violent rebellion to quell, as the president has said or implied.
Troops may encounter conditions in front of the ICE facility that are much different than Trump has described, said Joshua Braver, an assistant law professor at the University of Wisconsin-Madison who studies civil-military relations.
“If you’re told to fight a riot and you get there and there’s not a riot and there’s just peaceful protests, … (it) might mean just like not doing anything,” Braver said.
National Guard members say they’re trained to de-escalate.
During Portland’s much larger and more violent protests in 2020, one National Guard member told The Oregonian/OregonLive that he and his fellow soldiers weren’t equipped with firearms and instead were given shields, gas masks and batons that were only to be used as self-defense.
“If someone was being violent, you could strike below the hips,” the National Guard member said. “It was quick little whacks on the side of the leg.”
The guard member spoke to the news organization under the condition of confidentiality, fearing repercussions from superiors for speaking out.
His training focused entirely on crowd control, he said.
“We were trained just basically to hold the line,” he said. “We were not allowed to deploy any less-than-lethal stuff. We didn’t have tear gas or pepper balls.”
The National Guard member worked under the direction of Oregon’s governor at the time, Kate Brown, who’d activated the Oregon National Guard. This time, Trump has activated the troops, and the U.S. Department of Defense has said the soldiers will be equipped with their service weapons.
The National Guard member told The Oregonian/OregonLive that he hasn’t been called to duty to address the much smaller 2025 protests. Even so, he said he has peace of mind that his colleagues who have been assigned to the mission would de-escalate tensions.
“It’s not really our fight,” he said.
What if a National Guard soldier believes an order is unlawful?
“There are going to be situations where members of the National Guard have heartburn to one degree or another over things they’re asked to do,” said Fidell, who teaches military law at Yale Law School. “And the question is at what point does heartburn turn into a crisis for an individual?”
Fidell said there may not be time for a soldier to question an order that must be carried out immediately. Other times, there may.
He and others set up The Orders Project, a nonpartisan resource for members of the military who question the legality of an order and need the free advice of an attorney experienced in military law.
Fidell said the project started in 2020, during nationwide protests over the murder of George Floyd, when within days 23 states including Oregon called upon their National Guard troops to help manage widespread civil unrest. The Orders Project reactivated this year, after Trump won a second presidential term, Fidell said.
Real world scenarios will test the bounds of the law.
What would amount to a lawful order and what wouldn’t looms large, experts say. Would orders to use force against nonviolent protesters be lawful? How about orders to detain them?
On top of that, experts say the planned deployment in Oregon under Title 10 Section 12406 of U.S. Code doesn’t allow Guard members to make arrests. But it does allow them to detain people. So when does a detainment cross the line into an arrest?
And if National Guard members are ordered to protect ICE agents as they enter the community and detain immigrants for deportation, can troops set up perimeters? Can they take into custody those who try to intervene?
“It’s an incredibly fuzzy line,” said David Janovsky, acting director of The Constitution Project at the nonpartisan Project On Government Oversight in Washington, D.C.
Before Trump sent troops to Los Angeles in June, Janovsky can’t think of a time in U.S. history that this specific section of law, Title 10, had been used to federalize the National Guard to control protests or crack down on crime. So there’s little precedent to draw from, Janovsky said.
Added Fidell: “These are going to be hard cases. There is some law on what’s a lawful order and what’s not a lawful order. But there’s a lot that’s gray.”
National Guard soldiers have an obligation to disobey unlawful orders.
In a social media video shortly after Trump announced his intentions, Portland City Councilor Mitch Green, told National Guard members who’ve been called to duty in Portland that they do have a choice about whether to follow orders they think are unlawful.
“For those of you still serving, I want to remind you that your oath of service requires you to support and defend the Constitution of the United States against all enemies foreign and domestic,” Green said. “That oath does not grant the president a right to your absolute obedience.”
Green, a U.S. Army veteran, continued: “You have not only the right, but the duty to disobey an unlawful order. Many of you will face a difficult choice in the coming days: Comply with deployment orders to occupy an American city or refuse those orders and face the consequences.”
Experts agree, troops have a duty to refuse unlawful orders. But doing so could lead to a court-martial, trial and consequences that could be as severe as being booted from service and sent to prison.
Green pointed to the Colorado-based About Face Veterans, an organization that has been encouraging troops deployed to U.S. cities to resist.
Braver, the University of Wisconsin assistant law professor, expects a legally treacherous road ahead. Defiance will not be an easy path for troops to take, he said.
“From the perspective of an officer, the legally safe thing to do is just obey,” Braver said. “Because if you disobey then you get the general court-martial, you get the year in jail, you get the dishonorable discharge or all these other possibilities.
“But if you follow the order … the chance of a court-martial being brought against you, even if it was (an unlawful order), is almost zero.”
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