This is a great bit of legal story telling, but has absolutely nothing to do with my duty to disobey an unlawful order.
Again, I am not talking about court martials, or legal defense or whatever. Not sure why you keep bringing it up.
I feel confident that any order I receive along the lines of “Go into that hospital and kill all the babies” is an unlawful order.
And it would be my duty to disobey it.
I would think he’s bringing it up because that’s the only way of determining if an order is legal or not. Isn’t that the bottom line?
Would or should you be treated any differently if you killed those babies on your own volition rather than because you were ordered to do so?
Sure, but that has nothing to do with my duty to disobey an unlawful order.
I probably would. If I heard of someone murdering babies, then I would think he was a murderer. If I heard of someone murdering babies and his/her excuse was “I was following orders” then I would think he/she is a moron who didn’t follow the LOAC as well as a murderer.
Because you don’t seem to understand that a moral duty isn’t worth much since it cannot be enforced. If people had a moral duty not to speed while driving but there was no law (i.e. legal duty) requiring people to drive below a certain speed limit, how much do you think people would speed? Not at all, a little, or a lot?
Legally speaking, there is no duty to disobey an unlawful order. You can cite whatever random person gave you whatever random training you want. They aren’t the law. No military judge is going to go by some (legally speaking) non-existent duty and start holding service members accountable for not disobeying an unlawful order alone. They just won’t be protected under a defense of obeying a lawful order if the evidence doesn’t rise to that legal requirements of that defense.
Duties only really matter if they can be enforced should someone not uphold them. That’s why I keep mentioning courts-martial. The courtroom, and to a lesser extent non-judicial punishment and GOMORs, are where service members are held to account for their misconduct. I suppose failing to live up to a purely moral duty might be reflected on a service member’s NCOER/OER/FitRep, but that’s not much in the way of accountability.
I never once said anything about “Legally speaking”
As a service member, I had a duty to disobey an illegal order. You can say anything you want about whatever courtroom or judge or whatever, but I’ll go by my years of training, and an exact quote in the DoD Manual that I posted over your “Nuh Uh! You don’t HAVE to disobey an illegal order cause there is no law that says you HAVE to” crap that you keep posting.
If you don’t think service members have a moral duty to NOT kill babies in a hospital, then I don’t know what to tell you. I invite you to any LOAC training anywhere in the military and when that part comes up, you stand up and say “You don’t HAVE to disobey an illegal order! This training is crap and not legally binding!”
Have a good day.
And one last thing, since this seems to be the disconnect. Your statement here is incorrect. There are many things that I wasn’t REQUIRED BY LAW to do when I was in the military, but I still did them because it was my duty. I don’t consider my duties as a member of the military and as a human being to be those which are only enforceable or required by law. YMMV
You are the one who seems to be getting bent out of shape here because you can’t cite any binding authority. I go by the law. That’s what people are judged by every day. You go by whatever you were told and your own personal morality. You can believe whatever you want. And you can live by whatever standard you want that is above and beyond what is legally required. I am just telling you that only binding authorities are going to matter in a courtroom and thus in the real world where service members are held to account.
You always revert to the crudest example possible and you’ve never addressed any of the more subtle (and realistic) examples I have mentioned where your duty would be impossible to enforce in and of itself (setting aside that it is not contained anywhere in the law itself). As I’ve explained, in my experience, this whole distinction between not having to obey an unlawful order versus a “duty to disobey an unlawful order” doesn’t come up in most LOAC briefings because they go over more substantive, practical (and binding) things like the ROE/RUF and when there is time, the principles of LOAC like distinction, military necessity, proportionality, and the general prohibition against inflicting unnecessary suffering. I never said service members did not have a moral duty to (presumably disobey an order and not) kill babies. But moral duties are not enforceable, so you can set forth all of the moral duties you want, but at the end of the day, service members are going to be judged by the law and the UCMJ, not some moral duty and not whatever ideal the DoD manual sets forth.
Your own beliefs and morality are not the basis for which all service members will be judged. I am not telling you that you should live differently or view your own duties differently. But expecting the military to extend your own personal beliefs and how you see your duties to everyone else and how they are judged is not realistic. You may have interpreted your duties to include a duty to mentor other junior enlisted before you became an NCO or had any other position of responsibility. That was not actually a duty imposed on you, but one you felt that you had to do because it was the right thing to do and because you either had someone do the same for you or because you would have wished someone had done the same for you.
In an ideal world, yes, service members would have a duty to disobey unlawful orders that is enshrined in the law. But because there are too many variables that could come into play - the overall situation, how service members could tell whether an order was unlawful or not if it wasn’t immediately clear, what steps the service member would have to take to ensure that no one else followed this unlawful order - that’s not going to happen any time soon.
If one has a duty not to break the law, then one has a duty to disobey unlawful orders. Whether or not “following an unlawful order” is a separately enumerated crime is irrelevant. If your CO orders you to commit murder, you have a duty to disobey. Murder is an enumerated crime. Just because “following an unlawful order to commit murder” isn’t a separately enumerated crime doesn’t make it a “gray area”. Murder is illegal all by itself.
What binding authorities? What are you even talking about, I honestly don’t know any more.
Just answer this question with yes or no: Do military members have a duty to refuse to obey unlawful orders?
Yes or no are the only possible answers.
This is exactly what I’ve been saying. I honestly don’t know where the disconnect is 
Wrong. That’s like saying - do you have a duty to help someone who is dying by the side of the road in front of you? Morally, yes, you may have a duty, particularly if you have certain religious or philosophical beliefs. Legally (at least in many U.S. jurisdictions) no, you do not have a duty to help.
You keep trying to frame things in binary - yes/no, black/white - terms. The world is more complicated. The only place where the rubber is going to meet the road on any such duty to disobey an unlawful order is a courtroom. Where else do you think this issue would actually come up in any kind of meaningful way? And in a courtroom, it would not exist.
This is the line that keeps being blurred and doesn’t seem to be understood - having an affirmative duty to disobey is different than not having a duty to obey. Legally speaking, a service member has no obligation to obey an unlawful order (meaning they cannot be found guilty of disobeying an order from a superior commissioned officer if the order they were given was unlawful). Morally speaking, service members should disobey a clearly unlawful order especially because they cannot be convicted of the offense of disobeying a lawful order and because they could be convicted of committing some other illegal act that might ensue. But, there is no spelled out (in federal law, the UCMJ, or any other binding legal authority) duty to disobey an unlawful order. That means it won’t come up in a courtroom, because you can’t just randomly cite some training or DoD manual as a legal basis to do or not do something.
And just to be more specific - the duty to not break the law does not mean that every time someone breaks any law, they have committed a criminal offense. There are numerous laws that aren’t criminal and do not carry a criminal penalty for violating them. For example, in a general order (issued by a commanding general), a service member can only be held criminally liable for violating certain provisions (called punitive provisions) if those provisions spell out that a service member can be disciplined under the UCMJ if they violate that provision. Other provisions without that language do not carry such a penalty. So, a service member could violate some parts of a general order without being subject to official discipline at all.
So, talk of a blanket duty not to break any law is misleading because it is grouping criminal and non-criminal laws together as if violating any of them would result in criminal charges. Postulating the existence of an affirmative duty to disobey unlawful orders is not a logical extension.
You and mason keep talking about murder hypotheticals, but mason at least has not even addressed my more mundane, realistic ones and how they would hold up if such an affirmative duty existed and the service member were charged for not disobeying. If you’re going to create an affirmative duty, you have to define what the end-state should be. What extent of disobedience is required? Is simply ignoring the order sufficient? Or is a service member required to notify someone else of the unlawful order? Is a service member required to restrain or otherwise arrest the superior officer giving the unlawful order?
Before you start imposing duties on people, you have to define exactly what that duty entails. And if you’re just making it up on the spot, it probably isn’t much of a duty that can be enforced or applied in any consistent, lawful manner.
That wasn’t one of the answers. Yes or no, do you believe a service member has a duty to disobey an unlawful order?
Wrong again. I think in the field when a service member is given an order to “kill all the babies in that hospital” the duty to disobey an unlawful order is quite clear and relevant.
So what? That is not what my training said. It was pretty clear that we have a moral obligation to disobey an unlawful order. My training never said “You have a legal obligation to disobey an unlawful order, because if you don’t, you might be charged with not disobeying an unlawful order.” It was “You have a moral duty to disobey an unlawful order, as a service member in the United States Military”
If you don’t see the morality of disobeying an order to kill babies in a hospital, then I can’t say any more to you.
Not the same thing.
If you have the rank, your authority can be assumed, if you actually lack the authority
its your ass, but no one elses.
Authority is not equal with lawful or unlawful.
A corporal could give you the order to take a hill, lets just pretend for some reason his rank insignia is missing damaged etc.
Taking the hill could very well be the right thing to do and a valid lawful order
the fact that he lacked the authority to give the order does not make the order itself any less correct.
It’s very simple
You may NOT obey an order to commit a crime.
And yes it extends to the top, if the president gives an order to go gun down 5000 unarmed civilians because they are holding signs that says the president sucks, not only should they disobey him, they should probably remove him from office and arrest him pending legal proceedings.
Wrong. The military’s responsibility there is to refuse the unlawful order. There is no military authority to arrest the President of the United States. It would be up to Congress to impeach the President in this instance.