What to Know About Obeying an Unlawful Military Order

A Duty To Disobey Unlawful Orders?

Col. Todd R. Wood, commander of the 1st Stryker Brigade Combat Team, 25th Infantry Division, administers the oath of re-enlistment to Staff Sgt. Brian Beem, a cavalry scout assigned to the 5th Squadron, 1st Cavalry Regiment during a special ceremony at Forward Operating Base Frontenac, Nov. 9.
••• 1/25 Stryker Brigade Combat Team/Flikr/CC BY 2.0

The military oath taken at the time of induction into the military is as follows:

"I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God"

Notice the oath states, “I will obey the orders of the President of the United States...”, but the Uniform Code of Military Justice (UCMJ) Article 90 states that military personnel need to obey the "lawful orders of his/her superior. The duty and obligation to obey lawful orders creates no grey area for discussion. But does the military member have a duty to DISOBEY “unlawful orders” including orders of senior officers, Secretary of Defense and even the President of the United States? The UCMJ actually protects the soldier in this situation as he/she has a moral and legal obligation to the Constitution and not to obey unlawful orders and the people who issue them. These have to be strong examples of a direct violation of the Constitution and the UCMJ and not the military member’s own opinion. 

Military discipline and effectiveness are built on a foundation of obedience to orders. Recruits are taught to obey orders from their superiors immediately and without question, right from day one of boot camp.

Lawful Orders

Military members failing to obey lawful orders issued by their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) outlines the crime of willful disobedience by a military member a superior commissioned officer. Article 91 covers willful disobedience of a superior Noncommissioned or Warrant Officer. Article 92 conveys what constitutes the crime of disobedience of any lawful order (the disobedience does not have to be "willful" under this article).

These articles require the obedience of LAWFUL orders. Not only should an unlawful order not be obeyed, obeying such an order can result in criminal prosecution. Military courts have long held that military members are accountable for their actions even while following orders.

"I Was Only Following Orders. "

"I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II).

The first recorded case of a United States Military officer using the "I was only following orders" defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound for any French Port. However, when President John Adams wrote the authorization order, he wrote that U.S. Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President's instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. Maritime Court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.

The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution.

In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

Probably the most famous case of the "I was only following orders" defense was the court-martial of First Lieutenant William Calley for his part in the My Lai Massacre on March 16, 1968. The military court rejected Calley's argument of obeying the order of his superiors. On March 29, 1971, Calley was convicted of premeditated murder and sentenced to life in prison.

However, the public outcry in the United States following this highly-publicized, controversial trial was such that President Nixon granted him clemency. Calley wound up spending 3 1/2 years under house arrest at Fort Benning, Georgia, where a federal judge ultimately ordered his release.

In 2004, the military began court-martials of several military members deployed to Iraq for mistreating prisoners and detainees. Several members claimed that they were only following the orders of military intelligence officials. Unfortunately (for them), that defense doesn't fly. The maltreatment of prisoners is a crime under both international law and the Uniform Code of Military Justice (see Article 93 — Cruelty and Maltreatment).

To Obey, or Not to Obey?

So, to obey, or not to obey? It depends on the order. Military members disobey orders at their own risk. They also obey orders at their own risk. An order to commit a crime is unlawful. An order to perform a military duty, no matter how dangerous, is lawful as long as it doesn't involve the commission of a crime.

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