Your subjective feelings are not a valid source of authority. For precisely the reason that, in this case, your opinion that a particular order being unlawful does not make it so unless you have actual knowledge that it is unlawful or through an objective test (that a military panel or judge would reason through at a court-martial) a service member of ordinary intelligence and understanding would know that it is illegal through common sense.
I neglected to cite another article that relates to this discussion - Art. 90, striking or willfully disobeying a superior commissioned officer. In describing the elements of that offense, the MCM states that an order requiring the performance of a military duty or act may be inferred to be lawful and is disobeyed at the peril of the subordinate, but the inference does not apply to a patently illegal order such as one that directs the commission of a crime. It also lists a few other conditions concerning the inferred lawfulness of an order, such as the order must relate to military duty and must not interfere with private rights or personal affairs unless there is a valid military purpose.
I seem to think this is what they meant when they qualified those orders that must be obeyed as the “lawful orders.” But I see ganthet point that the UCMJ doesn’t enumerate an affirmative defense for not obeying, even though in practice, one obviously exists.
Just to spell it out clearly what Morgenstern is saying, an affirmative defense legally speaking is a legal defense that lessens or negates criminal liability but requires the defense to show some evidence supporting the proposed legal defense. An example is self-defense. If an accused were going to use the affirmative defense of self-defense against some assault/aggravated assault/murder charge, they would have to show some evidence (if it were not already offered by the prosecution) that the accused was in fear of imminent harm or death from the victim and the force used by the accused was reasonable and proportionate to the force used or threatened by the victim.
In a case where a service member is charged and court-martialed for failing to obey a lawful order/regulation or willfully failing to obey a superior commissioned officer, the lawfulness of the order is a required element for the military prosecutor to prove at trial. There is an inference (basically a presumption that can be rebutted through evidence) that an order is lawful if it meets the general criteria laid out by the Manual for Courts-Martial (given for a military purpose, within the authority of the officer giving it, etc.). So, assuming this inference could be made from the circumstances, then an accused arguing that the order was actually unlawful and therefore the accused had no duty to obey it would be an affirmative defense, requiring the accused to offer some proof by a preponderance of the evidence that the purpose, nature, etc. of the specific order was unlawful. If the accused was able to offer such proof, then the burden of proof would shift back to the military prosecutor to prove that the order was actually lawful with proof beyond a reasonable doubt.
There is no enumerated defense under the UCMJ for challenging an order as unlawful if one is being charged for not obeying it, but an accused can challenge any element of a crime they are charged with and argue that there is no evidence, there is insufficient evidence, or the evidence supports the opposite conclusion to that or any other element.
This is the only mention of an unlawful order in the entire Manual for Courts-Martial (mentioned in the discussion section to the defense of obedience to orders as a legal defense for any other crime) and mirrors the instruction that the military judge gave in 2LT William Calley’s court-martial:
I see nothing in your link to a news article that says someone must authenticate the President’s orders. In fact the article says:
"And while the military officers who would carry out a nuclear launch are required to work in pairs, where both must concur before they can execute a nuclear launch, there is no such check on the president’s actions.
“The president has supreme authority to decide whether to use America’s nuclear weapons. Period. Full stop,” said the Arms Control Association’s Kingston Reif. A president could only be stopped by mutiny, he said, and more than one person would have to disobey the president’s orders."
Hold on manson1972. No one is saying that’s incorrect. What ganthet, an Army Judge Advocate, said was there was no right to disobey codified in the UCMJ. That doesn’t mean that a soldier must obey an unlawful order, it means that any soldier who does, does so at his own peril and the ultimate results will depend on his trial counsel (assuming it even goes to trial) skillfully proving the order was illegal. It’s not simply a matter of telling the CO the order is illegal and that’s the end of it.
Frankly, I hope all service members are trained as you were and honestly refuse to obey orders that are patiently illegal. But it appears that doing so, is a very large gray area.
BTW, Thank you and a thank you to ganther for serving our county.
[QUOTE=ganthet]
a service member has an affirmative duty to obey lawful orders but does not have an affirmative duty to disobey unlawful orders.
[/QUOTE]
Bolding mine. And I say I DID have an affirmative duty to disobey unlawful orders. And yes, I know that comes with severe penalties if the orders turned out to be lawful.
Again, your own beliefs about what duties YOU have or do not have, do not extend to the entire U.S. military. If a soldier was ordered by his/her commander to kill a bunch of babies in a maternity ward, both of them would be charged with premeditated murder under Art. 118 or with first degree murder if a civilian jurisdiction decided to take the case. There is no separate offense for obeying an unlawful order. That means there is no legal duty (since there is no separate punishment) to disobey an unlawul order. And since such an order was clearly illegal, the soldier would not be able to use the defense of obeying a superior officer to avoid conviction.
Just the same as if a commander ordered a service member to enter into and execute a contract to purchase land for the military when the land purchase was not authorized and appropriated for by Congress. That would be an unlawful contract and thus any order to bind the U.S. government in that contract by signing and executing it would be unlawful. But if the service member did so anyway without knowing that it was not previously authorized and approved, and therefore not know that it was an unlawful order, under your rationale, that service member could be charged with obeying an unlawful order since they had a duty to disobey it. But that is not the case. And scenarios just like this one have happened.
“18.3 DUTIES OF INDIVIDUAL MEMBERS OF THE ARMED FORCES
Each member of the armed services has a duty to: (1) comply with the law of war in
good faith; and (2) **refuse to comply with clearly illegal orders **to commit violations of the law of war.”
The DOD manual is just a guide, not a source of law. And this is basically saying that service members have a moral duty to refuse to obey unlawful orders (but adding an additional caveat that they be clearly illegal). This is basically a restatement of the proposition that everyone has a duty to obey the law. If you violate the law, you are only going to be charged with violating the specific law you violated, not an added charge for violating your general duty to obey the law. If there was a specific source of a duty to disobey unlawful orders in the UCMJ or some other federal statute, the manual likely would have cited it or otherwise mentioned it.
I have been trying to distinguish a moral duty from a legal one. There may indeed be a moral duty to disobey clearly unlawful orders but there is no legal duty to disobey unlawful orders generally (meaning, there is no separate criminal offense against this apart from the commission of any other criminal misconduct an unlawful order might be directing).
The problem with moral duties, however, is that they are generally not enforceable in and of themselves. Likely the majority of the soldiers involved in carrying out the My Lai massacre were not prosecuted or otherwise punished. And even among those actually charged, just a single officer was convicted (and very quickly pardoned by President Nixon). Those soldiers were ordered to exterminate an entire village, and they largely did so, killing the elderly, women, and children including babies.
Who cares if there is a separate criminal offense or not? My point being that military members have a duty to disobey unlawful orders. The same thing I’ve been saying since the beginning of this thread.
Words matter. A moral duty is not enforceable. It’s just an ideal. A wish list, like saying that people have a moral duty to be kind to one another. Which is why the DOD Law of War manual can be changed and revised without changing the law, since it is just a guide and not a legal authority in and of itself when it is not citing actual laws or treaties.
A legal duty is something that is enforceable, because it carries a penalty for those who violate it or fail to uphold it. Because there is no enumerated criminal offense relating to it, there is no legal duty to disobey unlawful orders. And it is easy to see why, because as I went through before, what does “disobey” really mean? Does it mean ignore? Does it mean report to the next highest command authority? Does it mean arrest and detain the superior commissioned officer giving the unlawful order? And by what standard should unlawful orders be judged? Is it a subjective test, where the service member has to know or have reason to know that the order was unlawful or is it an objective test where any reasonably intelligent service member would know or not know based on common sense that the order was unlawful?
All of these questions would have to be answered before a service member was held criminally responsible for not disobeying an unlawful order.
Well, the service member wouldn’t be held criminally responsible for the act of “not disobeying an unlawful order” Who said that they would?
They would be held criminally responsible for whatever acts they commit by following the unlawful order.
For instance: “Go kill all those babies!” If the service member obeys, they could be prosecuted for murder or war crimes or whatever.
If the service member disobeys, and can show that it was an unlawful order, then they wouldn’t be prosecuted for not following orders.
You can call the duty “moral” if you want or whatever, but it is still a duty to disobey unlawful orders, as shown in the manual I linked to, and the years of LOAC training I have received, training that is standardized across the DoD
The training isn’t that standardized - a lot of it is ROE specific and the ROE changes from operation to operation and theater to theater. I’ve given it. The only parts that are consistent (when the block of training time is sufficient to go into it) are the general principles of LOAC such as distinction, military necessity, proportionality, and the prohibition against inflicting unnecessary suffering, along with the SROE. The operation-specific ROE is the real day-to-day guide (and general order) that sets the left and right limits on who can be targeted, when, the authority level required to target certain civilian structures not being used for their original civilian purpose, and the acceptable level of civilian casualties that may be collateral damage for any particular deliberate strike (which could be zero, but is set at a certain number).
But again, if a duty is vague and unenforceable, it isn’t worth much as a duty. Every service member has a moral duty to behave honorably in representing the United States, particularly while stationed abroad. But that doesn’t mean that every time they don’t act “honorably,” they are going to face court-martial or an Article 15. It all depends on the situation, the conduct, and what the effect of the conduct is.
So, you can talk up a moral duty to disobey unlawful orders all day, but at the end of the day, if you can’t point to any real effect that violating the duty would have other than being charged for committing some additional crime, that moral duty isn’t worth much. It is merely an ideal and an academic point.
I believe being charged with war crimes is a real effect. And if the defense was “Well, I was merely following orders when I killed those babies” then I’m pretty sure the response would be “Well, you have a duty to disobey unlawful orders as is stated in every LOAC training you ever received”
You keep bringing up training briefings. They are not a legal authority, they are just used to generally educate and provide guidance, along with informing service members of actual legal authorities such as the UCMJ, the ROE/RUF (if applicable), and any theater general orders.
A briefing does not create a legal defense nor does it create the basis for a crime. Briefings are not gospel. I have attended a half-dozen Army Sexual Harassment and Assault Response and Prevention (SHARP) briefings including one a month ago where the briefer got key facts wrong about how CID goes about investigations into sexual assault incidents, what standard of proof they go by, and how commanders consult with JAGs in charging sexual assault. I try to correct them when I can, but with the military, a lot of briefings like that (and LOAC) are about checking the block that this partiular training was given, not making sure that everything presented is 100% accurate and true.
So no, any service member who is charged with committing a crime and who seeks to use the defense that they were following the orders of a superior commissioned officer would have to meet the two part test described in the panel instructions given in the 2LT Calley court-martial on the previous page. Just as crimes are based on the law and not some nebulous moral obligation, legal defenses are also based on the law. When considering any such defense, either the military judge (if a judge alone trial) or the military panel would have to determine whether any such order was given in the first place and, if so, whether the accused had actual knowledge that the order was illegal or whether a service member of reasonable intelligence would know that the order was illegal based on common sense. If the judge/panel found that such an order was given, the accused did not have actual knowledge that the order was unlawful and a service member of reasonable intelligence would not have known it was unlawful just by common sense, then they must find the service member not guilty for whatever crime they are accused of committing that resulted from them following the order.
The only time a briefing would ever come up in either deciding to charge a service member with an offense or their court-martial is if the offense was failure to follow a general order, where actual knowledge of the order is required by the service member before they can be held criminally liable for violating it. The general order plus knowledge of it creates a legal duty to obey it. That’s why it is fairly standardized that all service members entering the CENTCOM AO or any place where there are standing general orders to recieve special briefings about what are in those orders so they can be punished later if they violate them.