If the president gives an unlawful order to his generals, I am guessing they have a duty not to follow those orders. Is that correct?
What would some examples of potential unlawful orders be? The president ordering it doesn’t make it legal, does it?
Unlawful orders? As in go arrest and ship to Gitmo all the Democrats in the senate for disagreeing with the POTUS on a bill?
I really hope they wouldn’t pay much attention to such an order, but I’m afraid the generals serve at the POTUS’ pleasure, and they may find a lot if openings at the top if they didn’t follow orders. Hopefully there would be an inter-cabinet mutiny if such a thing happened and we’d replace the POTUS with the VP.
Before answering, can you give us some idea why you think they have this duty? You know that low level military folks are supposed to disobey unlawful orders, right? Why would that not extend to the top brass?
Unlawful orders are orders that violate the Law of Armed Conflict. “Go into that clearly marked hospital and shoot all the wounded patients” for example
I’d like to think that any US soldier wold refuse that order on moral grounds.
That’s true for that clearly defined action.
Others may not be so clearly moral/immoral. That’s why there is a LOAC.
Besides, some people’s morals may be different than others.
Asking soldiers to refuse certain orders on moral grounds is “a bit” much, and dangerous to boot. We’re talking about 18, 19 years olds in many cases, and they can put their entire lives on the line if they have to figure out if something is moral, but not legal. They are tough was is legal, not what is moral.
A military where anyone can opt out of actions for “moral reasons” is going to risk its effectiveness.
All service members, regardless of rank, swear an oath to uphold and defend the constitution and, like all citizens, are also expected to follow and not violate the law. They also have a duty to obey lawful orders. There is no duty to disobey unlawful orders, since unlawful orders could range from something truly morally reprehensible such as killing innocent civilians or could be something pretty (morally) inoffensive like ordering a service member to spend money on a particular contract when either the purpose or some other aspect of the contract violated federal acquisition or appropriations laws. It is all very situation dependent. An unlawful order could be obeyed up to the extent that a certain action became illegal.
The president is not subject to the UCMJ and therefore there is no lawful/unlawful order issue there as only the Congress or the Supreme Court (or its lower courts) could give the president a lawful order to do or not do something.
But, any order the president gives cannot make something lawful that the legislature (through the UCMJ) has already declared unlawful. At most, the president can give further clarifying instructions or interpretations of the UCMJ as laid out in the officially-published Manual for Court-Martial that contain procedural rules, evidentiary rules, and comments on interpretations of the UCMJ or the rules.
The president is a high ranking commander like any other. Anyone in the armed services below his rank, which is everyone in the armed services, has the same obligation to not follow an unlawful order. I’m guessing that person would be court marshaled for disobeying an order and would then have to prove that the order was unlawful. As others have pointed out, some people (not sure if every armed service member) can be dismissed at the president’s discretion for any reason.
A prime example of an unlawful order that Trump mentioned during the campaign was intentionally murdering the family members of terrorists. That would be a war crime or crime against humanity (not sure the exact definitions of either), and thus would be an unlawful order.
I think there is an important but very anal distinction that should be made - a service member has an affirmative duty to obey lawful orders but does not have an affirmative duty to disobey unlawful orders. They just have no legal obligation to obey unlawful orders and obey them at their own risk.
The primary issue and hurdle towards disciplining or court-martialing a service member for carrying out an unlawful order is showing that the service member knew or had reason to know the order was not lawful. That’s easy in a situation where the order is to kill someone who is clearly an unarmed civilian non-combatant and there are no other complicating circumstances or unknowns. It’s a lot more difficult when, particularly in a combat situation, an enlisted soldier might recieve an unlawful order from an officer who knows it is unlawful but the enlisted soldier does not have the facts or broader situational awareness to know it is unlawful. The case of 1LT Clint Lorance is a good example.
If service members had a duty to disobey unlawful orders, then they could potentially be subject to discipline for obeying the order without knowing that the order was actually unlawful.
Ah ok, thanks. I always get that confused whether it is actually a duty to not follow unlawful orders or simply only a duty to follow lawful orders.
You’ll have to argue with the UCMJ on that one, it’s controlling.
*The Uniform Code of Military Justice (UCMJ) 809[890].ART.90 (20), makes it clear that military personnel need to obey the “lawful command of his superior officer,” 891.ART.91 (2), the “lawful order of a warrant officer”, 892.ART.92 (1) the “lawful general order”, 892.ART.92 (2) “lawful order”. In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.
*
undl. mine.
This appears to the commentary on the UCMJ from the Manual for Courts-Martial. The commentary is meant to provide guidance on the intent and interpretation of the Punitive Articles themselves but only the actual text of the Punitive Articles, their definitions, and any amendments or supplements are binding in terms of establishing criminal liability.
Yeah, that is not at all an endorsement of “use your moral sense” when deciding which orders to obey.
If The Army wants you to have a moral code, it’ll give you one!! 
John is clearly misunderstanding that what is meant by *The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ. * Their words, not mine. I can only assume that they put the word moral there for a reason.
Sounds a lot like “A Few Good Men.” We know what happened there.
One thing that confuses me - if there is NOT a “duty” or “obligation” to refuse an unlawful order, how can people be court martialled for “just following orders”? It seems like it would be an actual, valid defense - “look, I was following orders, the military doesn’t want me to think.” But history has shown us that those who “just follow” unlawful orders still end up in court martial proceedings ( is that called “in court”? )
Starting with the Nuremberg Trials, we have been shown that “just following orders, and I have a duty to obey” is not enough. The soldiers I know believe - because it was drilled into them - that they have a duty to disobey unlawful orders.
Since it is the operative word being used, there needs to be a common understanding of the word “duty.” The commentary to the UCMJ just uses the word obligation, but in the most important sense, duty essentially means a legal obligation to do something (obey a lawful order) or not do something (fail to obey a lawful order). Article 92 of the punitive articles of the UCMJ does this. There is no punitive article that creates an affirmative duty for service members to disobey an unlawful order. Therefore, there is no legally established duty or obligation for a service member to disobey an unlawful order (despite the commentary’s text, which at best implies a moral obligation to disobey an unlawful order).
I would speculate that there is no affirmative duty established to disobey an unlawful order because this would create an affirmative duty for service members to be able to identify unlawful orders (as opposed to just a requirement to know and obey lawful orders) and because disobedience can take a nearly infinite number of forms. As I mentioned before, due to a limited perspective, limited situational awareness or just limited knowledge, a service member might not be able to know when an otherwise innocuous order is lawful or unlawful. Obeying an order is straight-forward - you take one or more courses of action to ensure that the order’s end state is achieved or a certain specific course of action to achieve an end state if the order is so specific. Disobedience could mean simply ignoring an unlawful order, it could mean reporting the person giving the unlawful order, or it could even mean arresting or otherwise physically restraining the person giving the unlawful order. Who knows? Since unlawful orders could take an innumerable number of forms or shapes, from the obvious and dangerous to the not-so-obvious and not at all physically dangerous, proscribing a specific course of how disobedience must look on totally unknown, broad situations would be impossible. This is why the inverse - simply having no legal obligation to follow unlawful orders - is much more practical and is the legal framework actually in play.
The WWII war crimes trials are an extreme exception since they basically created the law they used to try the accused out of whole cloth based on trying to come up with historical international “norms” fashioned into customary international law.
Just to make it clearer with examples - in the My Lai massacre, despite an entire company of soldiers being involved (100+), the command and military trial counsel (military prosecutors) only charged about two dozen soldiers, the bulk of them officers with murder and related offenses. Of those, maybe about half were not dismissed and proceeded to court-martial. Of those, only 2LT William Calley, one of the company’s platoon leaders, was convicted of murder. The command largely did not attempt to prosecute the lowest ranking enlisted soldiers involved and instead offered some of them immunity for their testimony against the more senior ranking soldiers (primarily the officers) at the scene or those involved in the planning of the mission. No one was charged with failing to disobey an unlawful order.
A more recent example is 1LT Clint Lorance. He was an acting platoon leader in Afghanistan when a patrol he was leading spotted two men on a motorcycle near their position but not coming towards them. There was no indication that either of the men were armed or otherwise appeared to be acting with hostile intent. Lorance ordered an enlisted machine gunner present to target and kill the men. Service members have an inherent right under the law of armed conflict (which is spelled out more specifically in a theater’s Rules of Engagement (ROE)) to defend themselves, but ROEs require a service member to positively identify (PID) a target as a legitimate military target prior to engaging that target if self-defense is the rationale. Lorance did not positively identify the two men as a legitimate military target and it was argued and a military panel agreed at Lorance’s court-martial that his order to shoot the two men was not a lawful order and that the legal defense of self-defense did not apply as any fear of imminent death or injury at the point where the order was given was not a reasonable one. The soldiers who were given the order and actually shot the men were not prosecuted as it was likely not clear evidence-wise if they knew the order was unlawful at the time they obeyed it.
What article of the UCMJ would that be? AFAIK, those who disobey lawful orders get charged with failure to obey a lawful order, and those who carry out unlawful orders, along with those who issued said unlawful orders, get charged with whatever offense they’re committing (rape, murder, etc., as the case may be). This is of course in the cases where those who obey unlawful orders do get charged.
That’s the point I was trying (but perhaps unsuccessfully) to make. There is no punitive article (i.e. law) that says a service member has to disobey an unlawful order. There is just the mirror image law (Art. 92) that says a service member has to obey a lawful order. So if a service member does obey an unlawful order, they can potentially be charged with committing a crime if the conduct that was the subject of the unlawful order constitutes a criminal act.
If an officer ordered a junior soldier to kill a baby and the junior soldier followed the order, obviously both of them could be charged with murder. If an officer gave a junior soldier an unlawful order to erase and reformat a military computer that contains key evidence incriminating that officer in a crime currently under investigation, the junior soldier might not know that the computer contains anything let alone key evidence, and so only the officer might face obstruction of justice charges. If there was some kind of legal duty for a service member to disobey an unlawful order, then theoretically that junior soldier might be in trouble for not being able to identify that he was given an unlawful order and that he did not disobey it.