This question was inspired by a very hot political topic, but I hope we don’t have to go to GD. There should be a factual answer to this. Can a soldier be convicted of an offense under the Uniform Code of Military Justice if he was following a lawful order?
Wouldn’t an order to violate the UCMJ, by definition, be an unlawful order?
IANAL, but I would think that an order that is against the UCMJ would not be a legal order.
On preview: Shakes fist at Captain Amazing
Alas, this is where the politics come in. The President and Vice President currently claim that no limits can be placed on the Commander-in-Chief’s ability to direct military operations. Logically, this should imply that if the President orders that a captured terrorist be sodomized to make him talk, it is a lawful order. But the UCMJ explicitly outlaws sodomy.
(I’m trying not to directly debate the President’s position here, though you can probably guess that I have an opinion about it.)
It is, in fact, a specifically unlawful order.
the soldier may choose to follow an order to violate the UCMJ, but he or she would then be immediately liable for whatever penalties come with such a violation - they could not claim “But I was ordered to” as a successful defense. In addition, the person issuing the unlawful order would be liable, as well; They can’t claim “Well, the soldier knew the order was illegal, and shouldn’t have followed it” - orders to break the UCMJ are an offense in their own right.
The President and Vice President have made lots of claims, some of them dubious, but this is absolutely not one of them. The President commands the military forces pursuant to existing statute. Certainly, the administration’s interpretations of various statutes might not agree with other people’s. But that’s why we have a court system and (if necessary) an impeachment process.
No. Logically, it implies no such thing.
As long as my short term memory holds out…I am an expert in this area. I just completed the Basic Non-Commissioned Officer’s Course. The discussion lasted a couple of hours, but it came down to this. A Soldier cannot violate the UCMJ. A good lawyer may be able to defend someone who does violate the UCMJ, and that defense may involve being given an unlawful order. But that defense does not forgive the act. It may be part of the mitigating circumstances. If a Soldier is given an unlawful order, he/she should ask for the order in writing. The order may be changed or rescinded. Soldiers are allowed to violate unlawful orders. If a Soldier is given an order to violate the Uniform Code of Military Justice or civilian law, that order is unlawful and is not to be obeyed.
Sgt Schwartz
You’re a bit off there, Sarge. A Soldier is specifically prohibited from following an unlawful order; he’s required to “violate” (disregard) the order. Being given an unlawful order is not a mitigating circumstance. As mentioned above, it is an offense in its own right.
Here are a couple of explanations of the superior order/unlawful order distinction:
http://usacac.army.mil/CAC/milreview/English/MarApr01/MarApr01/david.pdf
http://www.law.duke.edu/shell/cite.pl?13+Duke+J.+Comp.+&+Int’l+L.+389+pdf
As I stated, the lawyer may be able to use the order in the defense, but the defense does not forgive the act. Mitigating circumstances can be used in the Court Martial if it comes to that, but the person has still violated the law. So, to restate, a Soldier should not obey an unlawful order. Any soldier who obeys an unlawful order may be charged with one or more violations of the UCMJ. Many things may be used in defense of the Soldier who violates the UCMJ, or civilian law. These defenses do not mean that the person has not violated the law. Only that it is the job of the legal team to attempt to get the accused a lesser sentence, or acquittal.
Hope that clears up any misunderstanding.
Sgt Schwartz
As a woman Brigadier General Judge Advocate pointed out, though, this course of action demands that a 19 or 20 year old private be knowledgeable enough about the UCMJ to be confident in refusing to obey a direct order on the battlefield from someone who might be wearing gold oak leaves. If he is wrong he faces death or such less penalty as a court martial may direct.
OK. You’re probably right; I may have been relying on biased sources. God knows there’s no shortage of them.
Willingness to commit an illegal act is not a mitigating circumstance for another illegal act.
However, what if it is a minor infraction or technical violation only?
Clearly the Nuremburg trials established that a soldier is expected to disobey an order that makes him commit a “crime against humanity”, but every violation of the UCMJ can’t be a “crime against humanity”. For example, maybe there is a section dealing with drinkng on duty, but there’s a toast and the soldier is ordered to take a sip?
Correct. Which is why the UCMJ is drilled into the head of every soldier, from Boot Camp, and onwards. Even before Boot Camp, quite often - Recruiters drill their ‘Deppers’ on military stuff, including the UCMJ, as well as teaching them other military knowlege and skills before they ship out. It helps to keep the Deppers motivated, and reduces both pre- and post-shipping attrition. Further, commands will take other measures to ensure complete knowledge of the UCMJ - GMT, or General Military Training,* for instance, in the USN, has a quarterly requirement for covering the punative articles of the UCMJ. Many commands place large posters of the punative arcticles on the insides of toilet stall doors (for a little ‘quality time’ reading), and so on. The idea is to ram the punative articles so deeply into the soliders’ and sailors’ heads that they don’t even think of violating the punative articles. Of course, this only works to a degree, seeing as you’re working with young men and women, all of varying motivation and temperment. Soldiers and sailors, after all, come from the population - they’re generally a ‘cut above’ the average, but even the ‘cut above’ contains a widely mixed group of people. Not all of them are individually admirable.
But anyway, every effort possible is made to ensure those 19 and 20 year old kids know to do the right thing. And you know what? They don’t often make the wrong choice. Of course, their superiors very rarely ask them to make the wrong choice - their superiors are every bit as professionally trained, and more so, as the junior troops. What has people all twisted are the exceptions, not the rule.
Any such order, even for a technical or minor violation, is still a violation. The ordering superior is in trouble, if they do that. If the junior service member follows that order, they’re still liable for their infraction, and any attendant disciplinary action.
- GMT was often not-so-jokingly called “General Misuse of Time.” Never-the-less, GMT was useful for making damned certain people knew their UCMJ punative articles, their leave-and-earnings statements, dependant care procedures, basic first aid, and so on.
Oh I’m sure all militaries make sure that the troops know what will happen if they disobey. How much time is spent on what constitutes and illegal order and what to do about it?
From my experience in the US military (the only military in the world, by the way, which is bound by the Uniform Code of Military Justice as it’s a US federal code of law), quite a lot of time is spent on the very issue of what constitutes lawful and unlawful orders.
Glad to hear that. The army I was in was ruled by the Articles of War. There were only two acceptable answers; “Yes, sir.” and “No exuse, Sir.”
I’m neither a lawyer or a soldier, but that can’t be right. You’re saying that it’s a crime for a soldier to be given an unlawful order? Certainly it’s a crime to obey an unlawful order (that’s what makes the order unlawful, after all), and it’s logical that it would be a crime to give an unlawful order, but if it’s a crime to even receive an unlawful order, that puts the poor soldier in a damned-if-you-do, damned-if-you-don’t situation.
No, no… It’s a crime to issue an order to violate the UCMJ, or to knowingly issue an illegal order. It may, or may not be a crime to unknowingly issue an unlawful order - I’m fuzzier on that. OTOH, considering how much effort is put into instructing on what is and is not permissable, and the penalties for unlwaful behavior, unknowingly issuing such an order would quite possibly open one to dereliction of duty, in that one should have known theorder was illegal.