I don’t want to hijack [thread=438084]this thread[/thread], so I started my own.
How, exactly, do you tell a superior that you think his or her order is illegal and you refuse to obey it? (Particularly in the field)
If you think an order is illegal, what happens next?
Is a court martial inevitable is such an instance?
If you’re using illegality as a defense in a court martial, who has the burden of proof for that claim?
What differences are there between various military branches? Various countries? (I’m asking mostly about U.S. Armed Forces, but welcome answers regarding other countries.)
As I have recently learned in the Basic Non-Commissioned officer’s Course, the Soldier should first ask the superior to clarify the order. I think the example used was, “Take care of the prisoners.” The subordinate should ask for clarification. If the order giver says something like, “I want them all dead by sunrise.” Ask for the order in writing. Most non-psychotic leaders will then change their mind. If not, go through the Chain of Command. You now have the leader’s written statement and can show higher ups that it is illegal. Under no circumstances should a Soldier follow an illegal order. If he has to go to the President, he should keep working up his chain of command.
I was given an Illegal Order once. Nothing so scary as killing prisoners, it involved a breach of confidentialty laws. I asked for it in writing*and never heard back. Of course, that MGR hated my guts forever, :rolleyes: so it’s risky.
The question of an order’s legality is a question of law, so there is no “burden of proof.” The Court decides if the order is legal. Any apellate review considers the question de novo, anew, with no particular deference to the original ruling.
If there is a dispute about what the order WAS – “Take care of the prisoners” vs. “Kill the prisoners” that would be a question of fact, and I don’t know who carries the burden of proof – I suspect it’s like an affirmative defense, and the prosecution must prove their version of the order beyond a reasonable doubt, but I don’t know for sure.
If you refuse an order on the basis it was illegal, you better make darn sure you are right. If the order is determined to be legal, you will probably face court martial. Documentation is everything. In writing is best, but lot’s of witnesses is a sorry second best. (Witnesses can be coerced, documents can’t be.) Multiple copies are best. In all honesty I never ran into a situation approaching this, but then I was never in combat. The only questionable order I ever got was in the reserves on an annual drill at Ft. McCoy WI. The order came from a senior NCO to keep my mouth shut about how a drunk Lt. passed out in his bunk made it from the second floor of the barracks (reserve units did not have seperate officer’s quarters, just private rooms in the unit barracks), to the middle of a four way intersection about four blocks away. Complete with bunk. The M.P.'s found him, sleeping in his bunk. I found this order to keep silent easy to follow, since I had no idea how this travesty could have occurred. The Lt .was off duty on a weekend during annual training, so there was no dereliction of duty on his part. However the parties responsible for this could have faced multiple charges, of a very serious nature including substantial prison time. As it turned out all 140 + men were either in the bathroom, the shower or too busy shining boots to notice anything at the time the Lt. woke up and carried his bunk, mattress and bedroll down the stairs, carried it four blocks and set it up in the intersection. They really ought to screen those Officers for sleep walking tendencies better.
Pardon me, Bricker - I’m finishing up 24 solid hours of spading, and my brain turned to mush around hour 16. But, doesn’t the defense carry the burden of proving an affirmative defense?
If the illegal order comes from the President, I suppose the Soldier could appear before Congress or the Supreme Court. I, however, would just call CNN.
Is the person in command required to put the order in writing if requested? It seems unlikely in the heat of combat.
And how much allowance is made for the “fog of war”? I know that practically speaking, no JAG or superior officer is going to court martial someone for an honest and reasonable mistake, but from a strictly legal standpoint, it seems that a soldier is in an almost untenable position. Especially in a situation like Iraq, it can be very difficult to distinguish enemy combatants from civilian bystanders. What happens when a person approaches a checkpoint or a patrol and the officer believes the person is hostile and orders fire, but (one of) the soldiers believe(s) the officer is mistaken? It seems that a soldier in that situation is potentially liable whatever he does.
Putting the order in writing provides proof that the order was given and exactly what it was. IANAL, but I suppose that the testimony of witnesses could be used in the heat of battle. Failing that, you would just have one Soldier’s word against another. As to your example, there are rules of engagement that tell a Soldier when whom he can fire upon, but there are levels of engagement. For instance, a Soldier cannot decide to open fire on a suspected combatant, but the suspect can be detained at gunpoint and identified, if the situation permits. If the Soldier is being actively engaged by the enemy, of course he can return fire.
If you were trying to suggest that the Soldier may have some information that would effect the Officer’s orders, that could cause problems for the Soldier if he with held information which resulted in non-combatants being killed.
