Can the president order someone in the military to do something that violates the UCMJ?

Title kind of says it all.

Specifically I do not mean ordering someone in the military to violate a law passed by congress but rather something that is covered only in the UCMJ.

Put another way, can the president dictate what the UCMJ says if he wants to?

No. Congress has the power under Article I, sections 1 and 8 to legislate on the discipline of the armed forces. The UCMJ are laws passed under that constitutional authority.

However, the President could exercise his pardon powers.

I think so “Don’t Ask Don’t Tell” was removed from the UCMJ by Obama.

However if the order was to commit a war crime (e.g. fire on unarmed protestors) it would be unlawful, and the military would be bound to disobey it. Additionally while I don’t know what the process for changing the UCMJ is, a rambling tirade by Trump during election season, is almost certainly not it.

Additionally I don’t know what the legal procedure would be for finding part of the UCMJ to be illegal or unconstitutional. Would it be the same as for a civilian law?

Actually I stand corrected congress passed the law, but it had an explicit clause saying it would “remain in place until the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certified that repeal would not harm military readiness,”

Certainly not but can he call his commander on the scene and tell him that if anyone throws a rock at our troops to consider themselves under attack and shoot the rock throwers (and expect that order to be followed)?

I would assume that would be no different to anyone further up the chain of command issuing an illegal order.

You do realise that rocks can be lethal weapons, don’t you? Your favourite search engine will turn up some very unpleasant images and videos.

I understand that a top commander can overturn a court martial guilty verdict. Does that authority extend to the President? If so, the President could simply overturn any court martial verdicts for obeying his order. But you’d have to trust that he’d follow through and that he is still President at the time.

What if they come at them with a pointed stick?

The fact that the president can pardon someone court-martialed is irrelevant. An illegal order should not be obeyed no matter who gives it.

That isn’t an illegal order, though. The Border Patrol didn’t issue a mandate to stop shooting at rock throwers until 2014–before that it happened regularly as it was viewed to be defense of great bodily harm. They can change the department policy, but it doesn’t change the law or change the fact that a person throwing a rock can do a lot of harm to someone. Deadly force is authorized when defending ones self from great bodily harm. An ROE that permits the use of deadly force against rock throwers is not illegal. Ill advised, perhaps. But not illegal.

Like a spear? What do you think?

Sure I do.

I would presume our military is smart enough to not stand their troops, unprotected, in the face of people throwing rocks. Last I heard they have helmets and face shields and body armor and armored personnel carriers and tanks and other things that are sufficient protection from rocks.

In fact I believe part of grenade training in the British Army is (or was) a session of hurling rocks at an opposing unit (while they do the same to you), while dressed full dress battle (helmet, body armor, etc). So they must be pretty confident in the ability of a modern combat equipment to protect its wearer from such a things.

Then they release the Bengal tiger.

That commander would ask for the order in writing from his/her immediate superior.

I assume both these things are convention, but not actually required (asking it in writing is I assume telling your superior that you think we might end up in trouble because of this order, and you want the record to show who gave it and what they said)

If a superior officer says “No I am not going to relay this order through your immediate superior or do it writing, just shut up and follow my orders”, the person getting the order has to do it or face charges (assuming the order is a legal one)

That would be an unlawful order in military parlance. As a member of the military, you actually have an obligation not to carry out an unlawful order, but you had better be on solid footing when you do so, as in the instance of being told to shoot an unarmed civilian. Just having a feeling that it may be unlawful is not reason enough to refuse the order. However, you do have the right to question it after it has been carried out.

That’s odd that the military expects every soldier to be an on the spot lawyer. I understand that there are obviously unlawful orders (Nuke Atlanta!) but I am sure there are many grey areas where a soldier is very unsure. Is their some type of good faith immunity?

It also would seem to cause issues. What if a unit is order to assault a particular position and 55% of the unit believes that those people in the position are civilians and refuse to open fire, while the other 45% believe that those are soldiers masquerading as civilians?

How often DO soldiers refuse unlawful orders, anyway? Does it even happen?

Nope. An order does not have to be in writing. It would certainly be nice, because you might want to document the fact that you were given a questionable order, but nobody is required to actually give one.

As for the subject of throwing rocks… The law requires the soldier to use force to counter a perceived threat, and a rock can certainly inflict a great deal of injury. It very much depends on the situation. If you see a bunch of Iraqi kids throwing pebbles, nobody is going to take that very seriously. And IIRC, there was a very notable incident in Kosovo in which protestors hit a soldier in the face with a brick, but the soldiers exercised restraint and did not open fire.

That said, go watch some Youtube videos of Iraqis throwing RKG’s at American vehicles. How easy do you think it is for someone to tell the difference between a rock and a hand grenade? If I were a bad guy, I would have kids throw rocks and shoes all day long in order to desensitize the soldiers, and then once they let their guard down I’d toss a hand grenade into the mix. If I was a bad guy.

I was in Iraq one time, where the kids in a local village routinely threw rocks at us. We were certain that the adults in the village were inciting them to do it, on the understanding that Americans would never shoot innocent children. Our Platoon Leader eventually took aside the village elder and told him, “We understand they’re just kids and we’re trying to be patient, but grenade attacks are on the rise and I don’t want there to be any misunderstandings.” They took the hint.