Apparently you can get drummed out of the service for even asking about it.
I’ve read the article and still don’t understand. Surely the two person rule handles this issue?
Just my own thinking on this:
it’s not a matter of “extending a duty” to anyone.
In a way, there doesn’t need to be a specific law stating that following illegal instructions is wrong, or that refusing to do so is protected. In fact, it would be a difficult problem to write such a law, because doing so would logically necessitate having everyone who is in a position to take orders, be given a law degree, first.
It is enough that there are laws against the crimes which would apply in a situation of an unlawful order being given.
After all, there is no law on the books either, stating that a law ceases to be a law, the moment someone orders you to ignore it. Despite what some romantic idealists might like to pretend, it is against the law to commit murder (and most other crimes) WITHIN the military, as well as in civilian circumstances.
In a way, it is already implicitly true, that it is the “duty” of every CITIZEN to obey the law.
By the “two-person rule” I assume you’re referring to the need for two people to simultaneously turn the keys to launch the missile? That still doesn’t clarify if the launch order was lawful.
No, the two person rule to give the order in the first place.
As long as he never discusses the issue with other crew members or rises in rank to a point where he can become a one-person roadblock (IIRC, he was going to come out of training as Lt. Col. and continue upward from there).
My take on it is that the thought of simply asking the question got the higher-ups flustered. I expect that they thought it was “contagious”, like Jury Nullification. Given that there had been a number of previous cases where incorrect information about a Soviet pre-emptive strike had arrived* and might have been misinterpreted, passed to the President / National Command Authority, acted upon, and generated a launch directive. The question incident was also around the time of Watergate, and at least some people were worried about Nixon’s state of mind, though the reports are probably exxagerated).
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5 days after BMEWS was activated in late 1960, it misinterpreted moonrise through clouds as a Soviet launch. [The Soviets had a similar incident later on.]
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Early on in the deployment of manned missile silos, AT&T had a switch failure which resulted in all the phone lines going dead and isolating command from all of the silos. While this is more of a “safe” failure, it did leave command scrambling to figure out if they were under attack or not, and they did have ground-alert bombers standing by that they could reach.
The following happenen after the “question” incident, but are still relevant:
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In November 1978, the “training tape” incident happened. Widely reported as an attack simulation training tape being incorrectly loaded into the monitoring system, it was a bit more complex than that, as software testing a supposedly-isolated system was “inexplicably transferred into the regular warning display”. Later on, NORAD said that “precise mode of failure could not be replicated.” If this sounds exactly like the beginning of the movie WarGames, it was - complete with a VIP visitor sitting in “the big chair”.
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The WWMCCS (a system to link the various missile sites and other locations via digital links) in June 1980 mistakenly started sending out alarm messages (the first was for 2200 missiles incoming, which as you can imagine, was rather alarming). Random other numbers were observed, all with 2’s and 0’s as the number of missles incoming. This was tracked down to a defective card in a long-obsolete computer which had an intermittent “bit flip” in its BCD math logic. The regular test message at the time was a notification to all stations that an attack was incoming (the standard message), but with the number of missiles set to 0.
We don’t actually know the answer to that. Anyone who does, isn’t allowed to say. There’s an article in the Washington Post (ignore the hyped headline, that was an editorial choice). There’s a more technical version over at the author’s blog.
Seems to me that the same argument could be applied to every military order: “You want me to capture that hill? Well, prove to me that you have the authority to issue an authenticated order.”
I’m not sure that once that assumption starts - that each step in a chain of command has to prove to everyone below that they had not been replaced by lizard-men who are faking the orders - that any military organization could function at all.
So you’ve read the article AND you think there’s a “two person rule to give the order in the first place”? :dubious:
Your speculation is incorrect. As a military member, I had a duty and obligation to disobey an unlawful order. As was drilled into me at every annual LOAC training that I had.
As the people tasked with carrying out orders get more and more remote from where the orders will have effect, this becomes a greater issue. If you can see the hill with binoculars and there are enemy troops on it (particularly if they’re shooting at you or other friendly forces), there isn’t much to consider.
When you’re in a hole in the ground 5000+ miles from where your target is, and the only contact you have with the outside world is with the Command and Control that’s giveing you the order to fire, it would seem to be quite different.
It may be that we’ve gone to far in not questioning orders. Although, horrible as it is, a drone-driver taking out a wedding party is nowhere near the scale of even a single nuke hitting its target. Plus, the wedding party has a limited ability to strike back, compared to whatever country gets a nuke dropped on it (even if they did it to themselves by accident, they probably don’t know that in time).
Sure there is. “How do I know that you mean this hill? It looks very heavily defended. There’s another hill that’s less defended over there - I demand authentication from the highest levels that this hill is the right one!”
It’s not speculation. I am a former active duty (currently reserve) Army judge advocate. I have given more LOAC briefings that I can count. I’ve also been both a trial counsel (military prosecutor) and a trial defense counsel (basically an Army public defender). Cite to me the punitive article in the UCMJ that requires a service member to disobey an unlawful order and what punishment range the UCMJ allows for any service member that is found guilty of such an offense. I’ll even make it easier for you - you can find the Manual for Courts-Martial that lists all of the punitive articles here, though it doesn’t include yet the 2016 amendments which don’t affect this particular issue.
Bottomline, if there is nothing that says that if you do/don’t do something, you can or will be punished, there is no legal duty. There may be a moral duty, but moral duties are pretty vague and unenforceable. Besides, as I outlined above, disobedience can take many, many, many forms and there is no way to legislate exactly what disobedience must look like in a way to codify it for all possible situations. Obedience to a lawful order is much simpler.
Too late to edit - I should have worded it - cite the punitive article in the UCMJ that prohibits a service member from obeying an unlawful order (above and beyond committing any separate offense that an unlawful order might invite such as murder) and the punishment range for committing such an offense.
If the UCMJ uses the term "lawful order, " isn’t it excluding orders that are not lawful from that provision? It could have used “all orders” or even “orders” without qualifying only those that were lawful.
I can imagine one reason this was not specifically defined in the UCMJ is a difficulty in drawing a line. Clearly some orders may be patently illegal, while others may appear legal but end up being illegal in view of unknown facts. Rape the prisoner until she talks is an example of an order that any service member should recognize as illegal. It’s pretty easy to see why the UCMJ doesn’t want to go there given the large gray area.
The “two man rule” applies to launch operators (Missile Operations Officers or the USN equivalent), not to the executive launch order. The President’s order to initative attack instructions has to be authenticated by a Cabinet member or other government official confirmed by the US Senate as coming from the President who is of sound mind and not under duress, but it is not an approval by that official. The President has the ostensible ability to launch a unilateral nuclear strike solely upon his or her own authority without anyone else agreeing or approving.
Stranger
You cite the punitive article that forces a service member to obey an unlawful order.
I doubt you know what the President has to do in order to initiate a nuclear attack. If you did know, I doubt you would be able to say what it is on a public message board.
I never said that a service member has a duty to obey an unlawful order or is otherwise forced to. I was only pointing out that there is no legal duty that affirmatively requires a service member to disobey an unlawful order. There is only the affirmative duty to obey a lawful order under the UCMJ, as well as the legal defense that a particular order was unlawful if a service member is charged under Art. 92 of failing to obey a lawful order or regulation.
Here’s how Article 92 of the UCMJ (the punitive article that requires service members to obey lawful orders/regulations) defines lawfulness as it pertains to regulations and general orders (orders issued by a general/flag-grade officer):
[Quote=UCMJ]
Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.
[/QUOTE]
The UCMJ does not define “lawful” orders generally as it applies to orders from any superior officer. This, combined with the limited definition above, is basically the reason why there is no prohibition (crime) against following unlawful orders in and of themselves (distinct from actually committing the separate crime of murder if one was following unlawful orders to murder someone for example). As you said, in many cases a service member might have no idea whatsoever that an order they were given and just followed was unlawful. Creating a legal requirement that a service member disobey an unlawful order would mean they would be subject to punishment if they followed it but did not necessarily know it was unlawful.
Here is a selection (starting on page 507) from the military judge’s instructions to the military panel (the rough equivalent of a jury) at the court-martial of Lt. William Calley, the only soldier convicted in the My Lai massacre, who claimed that he was following orders to kill civilian non-combatants and used this as part of his defense:
Sorry, you are wrong. It is a serviceperson’s duty to disobey an unlawful order.