Have US military personnel ever refused orders because they were illegal?

[Chefguy]

@Chronos

As I understand it, members of modern first-world militaries are allowed to request that an order be put into writing and signed, for purposes of documenting potentially unlawful orders. Though serious violations are still probably pretty rare.

Sounds like something out of a movie script to me.

[Loach]

@Chronos

As I understand it, members of modern first-world militaries are allowed to request that an order be put into writing and signed, for purposes of documenting potentially unlawful orders. Though serious violations are still probably pretty rare.

You can request a choir of angels to come down and proclaim it but that doesn’t mean it will happen. There is nothing in any regulations or the UCMJ that says an order has to be provided in writing or that a subordinate has the right to request it. An order given orally has equal standing as one in writing.

[Alessan]

@Inigo_Montoya

OP is sorta asking for proof of a negative. In mundane situations as described, the exchange could very well go:
Capt: Hey, do XYZ
Grunt: Looks like XYZ would be an unlawful order, so no.
[frank exchange of views wherein the order or the objection is clarified and the situation resolved] no record to provide to OP

That’s my guess, too. In fact, I bet the vast majority of cases are never reported, because why would anyone want to? The officer giving the order certainly wouldn’t. After all, it makes him look bad twice - both for giving an illegal order, and and for having it refused. A trial, especially, is a lose-lose situation for everyone.

[Bear_Nenno]

@Chronos

On the other hand, though, as the OP is asking about, a servicemember is also required to not follow an unlawful order, such as an order to massacre civilians or to certify a piece of equipment as capable when it’s not.

And What Exit? conveniently provides an example of what I was asking about. It was unlawful for his lieutenant to order him to attend religious services. It would not, however, have been unlawful for What Exit? to choose on his own to attend religious services. So he was given an unlawful order, but was not obligated to disobey that unlawful order. That seems like a different category of order than ordering someone to do something that is itself unlawful.

I think you have a misunderstanding. There is a requirement to obey lawful orders. But there is not a requirement to refuse unlawful orders. So, there is no “third category”. If a soldier obeys an illegal order and the action undertaken as part of that order is illegal then the soldier can be prosecuted for whatever crime was violated pursuant to said action. However, there is no separate crime for “obeyed an illegal order”. The crime is simply whatever the crime would have been had no order been given. Unlawful orders do not protect soldiers from prosecution, and “I was just following orders” is not a defense. But following an unlawful order is not itself an offense.

So, if a commander orders a soldier to execute a prisoner:

1. If the soldier refuses, the soldier commits no crime.
2. If the soldier obeys, the soldier is charged with murder. The soldier is not also charged with “obeying an unlawful order”. The soldier is charged with whatever crimes he/she would have been charged with had no order been issued at all.

Or, if a commander orders a soldier to pray:

1. If the soldier refuses, the soldier commits no crime.
2. If the soldier obeys, the soldier commits no crime. Because it isn’t illegal to pray, and there is no requirement to disobey illegal orders.

Obey them, or not. But the order itself does not protect against criminal liability or prosecution. So, be sure to not obey the illegal orders…

[Sitnam]

I would hope there where quite a few that refused direct orders during the My Lai Massacre, though I’m not sure that’s much to crow about.

From Wiki

Over the next day, both companies were involved in additional burning and destruction of dwellings, as well as mistreatment of Vietnamese detainees. While some soldiers of Charlie Company did not participate in any crimes, they neither openly protested them nor complained later to their superiors.[46]

[KarlGauss]

Regarding Hugh Thompson and the order he gave his crew “to shoot the men in the 2nd Platoon if they attempted to kill any of the fleeing civilians”, was that a legal order? If his crew had obeyed it and shot any infantrymen seen killing (or attempting to kill) civilians, would they have been reprimanded or congratulated?

[Alessan]

@Bear_Nenno

2. If the soldier obeys, the soldier is charged with murder. The soldier is not also charged with “obeying an unlawful order”. The soldier is charged with whatever crimes he/she would have been charged with had no order been issued at all.

Is the commander also charged with murder?

[What_Exit]

@Bear_Nenno

I think you have a misunderstanding. There is a requirement to obey lawful orders. But there is not a requirement to refuse unlawful orders. So, there is no “third category”. If a soldier obeys an illegal order and the action undertaken as part of that order is illegal then the soldier can be prosecuted for whatever crime was violated pursuant to said action. However, there is no separate crime for “obeyed an illegal order”. The crime is simply whatever the crime would have been had no order been given. Unlawful orders do not protect soldiers from prosecution, and “I was just following orders” is not a defense. But following an unlawful order is not itself an offense.

So, if a commander orders a soldier to execute a prisoner:

1. If the soldier refuses, the soldier commits no crime.
2. If the soldier obeys, the soldier is charged with murder. The soldier is not also charged with “obeying an unlawful order”. The soldier is charged with whatever crimes he/she would have been charged with had no order been issued at all.

Or, if a commander orders a soldier to pray:

1. If the soldier refuses, the soldier commits no crime.
2. If the soldier obeys, the soldier commits no crime. Because it isn’t illegal to pray, and there is no requirement to disobey illegal orders.

Obey them, or not. But the order itself does not protect against criminal liability or prosecution. So, be sure to not obey the illegal orders…

Legally you’re correct, but practically, plenty of young soldiers and sailors have been convinced they had to obey unlawful orders. It is usually minor stuff like mine, or let this officer keep his unsafe electronic item or make sure you always hook up this 1st Class with best fruit. I think that is what **Chronos **is talking about.

[EdelweissPirate]

A friend of mine went to officer candidate school for the USMC at Quantico. He was physically assaulted (hit hard in the face) by (what I recall to be) a senior NCO. The senior NCO seemed to realize immediately that he had done something wrong, and told my friend never to speak of it. My friend played ball and immediately gained a lot of credibility with that NCO and, more broadly, within his program.

Per the post above, there often are lots of incentives to obey unlawful orders, especially ones where there is no obvious victim beyond the soldier in question.

[UltraVires]

Suppose I am given what turns out to be an unlawful order. As an 18 year old newbie, I am not sure and there are a lot of guys around me that will not take too kindly to me not obeying the order.

If I sufficiently document my protest that I believe it to be an unlawful order but follow it anyways so as not to be summarily punished or killed, will I still be punished later for following it?

[Alessan]

It depends on what the illegal order was. If they find out you were shooting 8-year-olds in the head, nobody’s going to cut you any slack if you were given an order.

[Asuka]

I forgot what book I read it in, but apparently during Operation Eagle Claw (the failed 1980 rescue of the American embassy workers held hostage by Iranians) when an Iranian civilian bus accidentally stumbled upon the secret staging ground for the rescue the bus was seized and the civilians were temporarily detained so they couldn’t flee and tell the Iranian military the American forces location.

Apparently three American officers were discussing what exactly to do with the civilians in the meantime. The highest ranking officer calmly suggesting “Shoot them” but the other two officers ignored him as if he wasn’t there and agreed together to just hold onto them until they eventually were all released when the mission was aborted.

[EdelweissPirate]

Asuka, I read about that in Mark Bowden’s article on Operation Eagle Claw published in The Atlantic a few years back:

The Desert One Debacle

I believe that article became a book, so maybe you read the book rather than the article. But I bet it was Bowden!

[Horatius]

@Inigo_Montoya

That said, I’d be curious to know how many of the POTUS’s military staff have volleyed back some flavor of, “Yeah, we can’t do that, sir. It’d be a war crime.” But again, there is not likely a record of even that sort of exchange.

We pretty much saw a public example of this last month, when Trump tweeted about targeting Iranian cultural sites.

Asked during a press gaggle if the U.S. military would follow Trump’s announced plan to target cultural sites in Iran, Joint Chiefs of Staff Chairman Gen. Mark Milley replied, “We will follow the laws of armed conflict.”

Asked if that meant “no” because targeting cultural sites constitutes a war crime under those laws, the general replied, “That’s the laws of armed conflict.”

Pentagon rejects Trump's pledge to strike Iranian cultural sites

[TonySinclair]

@Inigo_Montoya

That said, I’d be curious to know how many of the POTUS’s military staff have volleyed back some flavor of, “Yeah, we can’t do that, sir. It’d be a war crime.” But again, there is not likely a record of even that sort of exchange.

Former SecState Rex Tillerson said in an interview that he frequently had to tell Trump that he couldn’t do X because it would be illegal. I would guess that SecDef Mattis had similar experiences, which is why he was forced out.

And now I’m going to get drunk because of how sad it is that having Tillerson as SecState was the good old days.

[ASL_v2.0]

@Chefguy

Sounds like something out of a movie script to me.

Seconded (referring to the notion that a subordinate can demand an order they are uncomfortable with be issued in writing). Sounds like a great way for a sea-lawyer and budding sovereign citizen to cripple the chain of command, which is why I doubt such a regulation exists. And then I also have my fourteen-ish years as an officer to draw back on, too. Never encountered such a regulation. I do recall how, at a training command that involved high risk training, there was a limited-access memo with guidance on how officers and instructors should handle a refusal to participate in training on the grounds that said training was “unsafe” in the individual’s eyes, even as all proper safety procedures were in fact followed, and there was appropriate authority directing said high-risk training to proceed in spite of those concerns. I don’t recall being required to proper the “refuser” with a written order then, either.

ETA:

@KarlGauss

Regarding Hugh Thompson and the order he gave his crew “to shoot the men in the 2nd Platoon if they attempted to kill any of the fleeing civilians”, was that a legal order? If his crew had obeyed it and shot any infantrymen seen killing (or attempting to kill) civilians, would they have been reprimanded or congratulated?

I would think Thompson’s order to shoot anyone seen attempting to kill villagers would be legal, on the grounds that deadly force may be authorized to prevent the commission of murder.

[ASL_v2.0]

ETA2:

@UltraVires

Suppose I am given what turns out to be an unlawful order. As an 18 year old newbie, I am not sure and there are a lot of guys around me that will not take too kindly to me not obeying the order.

If I sufficiently document my protest that I believe it to be an unlawful order but follow it anyways so as not to be summarily punished or killed, will I still be punished later for following it?

There’s a group of convicted murderers out there called “the kill team” who put that theory to the test for one young member of the unit. The short answer is yes, you can still be punished, even if you told your dad what was going on, and your dad tried to inform Army investigators, but Army investigators didn’t feel they had an actionable complaint based off the dad’s second-hand report.

ETA3: See Maywand District murders