Omar Bennett
The topic of unlawful orders in the military is a complex one, with serious consequences for those who disobey or carry out such orders. While members of the military are expected to follow orders from their superiors, the Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey only the lawful orders of his/her superior. This raises the question of what constitutes a lawful order and when a service member is justified in refusing to obey an order.
A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, arbitrary, or intended to harass or humiliate a service member may be considered unlawful. Determining whether an order is lawful or unlawful can be challenging, and service members who believe they have received an unlawful order should consult with a military defense attorney if time permits. Ultimately, the decision to disobey an order may have to be made quickly in high-pressure situations, and service members must use their judgment and training to make the right call.
| Characteristics | Values |
|---|---|
| Must be a specific mandate | Do or not do a specific act |
| Must be reasonably specific | Not vague or overly broad |
| Must not conflict with statutory or constitutional rights | Must not be intended to harass or humiliate a service member |
| Must pertain to military duty | |
| Must not extend punishments beyond those lawfully imposed | |
| Must not be arbitrary or capricious | |
| Must not impose unjust limitations on personal rights |
Explore related products
What You'll Learn
Orders that are vague or overly broad
The Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey "the lawful orders of his/her superior". However, it can be challenging to distinguish between lawful and unlawful orders, especially in high-pressure situations. Service members who refuse to obey a lawful order may face adverse actions, such as reprimands, extra duties, confinement, or dishonourable discharge. On the other hand, following unlawful orders can also result in adverse consequences, as seen in the case of Lieutenant William Calley during the Vietnam War. Calley ordered his men to kill hundreds of unarmed Vietnamese civilians, resulting in a court-martial and a first-degree murder conviction for Calley and those who participated.
When faced with an order that may be unlawful, service members should ask for clarification from the individual who gave the order. If time permits, consulting with a Military Defense Attorney is advisable. Ultimately, the decision to obey or refuse an order rests with the service member, who must use their experience and training to make a judgement call.
It is important to note that an order that is "arbitrary and capricious, overly broad in scope, or imposes an unjust limitation on a personal right" is not lawful. Service members should be aware of their rights and seek legal guidance to protect themselves from unlawful orders.
Constitutional Rights: Fueling Social Change and Movements
You may want to see also
Orders that conflict with statutory or constitutional rights
The Uniform Code of Military Justice (UCMJ) specifies that service members are required to obey "the lawful orders of his/her superior". However, distinguishing between lawful and unlawful orders can be challenging, and sometimes decisions must be made quickly in high-pressure situations.
A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful. An order that is "arbitrary and capricious, overly broad in scope, or imposes an unjust limitation on a personal right" is not lawful. For example, in United States v. McCoy, it was ruled that continuing extra duty after punishment had already been imposed was unlawful. Similarly, in United States v. Hoover, the accused was required to live in a pup tent for three weeks between specific hours, which was deemed unlawful.
In the case of United States v. McDaniels, it was ruled that ordering someone with narcolepsy not to drive a personal vehicle was lawful. Likewise, in United States v. Hill, a no-contact order issued by military police was deemed lawful as it served the valid military purpose of maintaining good order and discipline in the military community and protecting the alleged victim during an investigation.
If a service member feels they have been given an unlawful order, they should ask the individual for clarification. If time permits, they should consult with an experienced military defence attorney. If time does not permit, the service member must use their experience and training to make a decision. If a service member refuses a lawful order, they may be subject to adverse action. However, a service member who follows unlawful orders may also be subject to adverse action if they violate the UCMJ.
It is important to note that every military officer swears an oath upon commissioning to "preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic". This means that their first obligation is to obey the law, even if it conflicts with an order from a superior.
Supreme Court Size: Is It Defined by the Constitution?
You may want to see also
Orders that are intended to harass or humiliate a service member
In the case of United States v. McCoy, 30 C.M.R. 68 (C.M.A. 1960), it was ruled that orders extending punishments beyond those lawfully imposed are illegal. For example, requiring an accused person to live in a pup tent for three weeks between the hours of 2200 and 0400 was deemed unlawful.
Similarly, in United States v. Hoover, 24 M.J. 874 (A.C.M.R. 1987), it was found that an order that is "arbitrary and capricious, overly broad in scope, or imposes an unjust limitation on a personal right" is not lawful. This was further supported by the case of United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958), where an order to report financial conditions unrelated to the military while on leave was deemed unlawful as it did not have a valid military purpose.
The consequences for refusing to obey a lawful order can be severe and may include adverse actions such as letters of reprimand, court-martial, and other punishments. However, following unlawful orders can also result in the same adverse consequences if the service member violates the UCMJ.
If a service member believes they have received an unlawful order, they should ask the individual who gave the order for clarification. If time permits, consulting with an experienced military defence attorney is advisable. Ultimately, the service member must use their experience and training to make a decision, understanding that unlawful orders can often result in high-profile cases.
Enzymes: Facilitating Metabolism's Chemical Reactions
You may want to see also
Explore related products
Orders that extend punishments beyond those lawfully imposed
Orders must be reasonably specific, not conflict with statutory or constitutional rights, and pertain to military duty. They must also have a valid military purpose, such as safeguarding or promoting the morale, discipline, and usefulness of a unit. An order that is "arbitrary and capricious, overly broad in scope, or imposes an unjust limitation on a personal right" is not lawful. For example, in United States v. Milldebrandt, 25 C.M.R. 139 (C.M.A. 1958), an order to report financial conditions while on leave was deemed unlawful as it did not have a valid military purpose.
It is important to distinguish between lawful and unlawful orders, as service members are required to obey only lawful orders. If a service member believes an order is unlawful, they should seek clarification from the individual who gave the order. If time permits, consulting with a military defence attorney is advisable. However, if the order is ultimately determined to be unlawful, a service member who follows it may still be subject to adverse action.
Determining the lawfulness of an order can be challenging, especially in high-pressure situations or the heat of battle. Nonetheless, service members may face serious consequences for refusing to obey a lawful order, including court-martial. Similarly, obeying an unlawful order can also result in a court-martial. In the Vietnam War, for instance, Lt. William Calley ordered his men to kill unarmed Vietnamese civilians, resulting in a court-martial for those who followed the order.
Democratic Views: A Constitutional Conflict?
You may want to see also
Orders that are illegal, immoral, or unethical
An order to advance along one route rather than another is obviously legal, even if the subordinate thinks it is a bad idea. However, a soldier's objection may be raised before reaching the battlefield, and this objection may be rooted in a debate about the powers of the presidency. For instance, can a soldier refuse an order to deploy in support of a military operation that Congress has not approved? The president's authority to use military force is a hotly debated legal topic.
In the case of United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999), a servicemember was ordered not to drive a personal vehicle after being diagnosed with narcolepsy. In United States v. Hill, 49 M.J. 242 (C.A.A.F. 1999), a no-contact order issued by military police was deemed to have a valid military purpose of maintaining good order and discipline in the military community and protecting the alleged victim during an investigation.
During the Vietnam War, Army Lt. William Calley ordered his men to kill hundreds of unarmed Vietnamese civilians, including children. Some soldiers followed the order, while others refused. Calley and those who participated in the massacre were court-martialed. Calley, convicted of first-degree murder, claimed he was following orders from a superior. The court ruled that "the summary killing of an enemy who had submitted...is murder." This case involved what the court called a "palpably illegal" order.
If time permits, a servicemember who believes they have received an unlawful order should consult with an experienced military defence attorney. If time does not permit, the servicemember must use their experience and training to make a decision. A servicemember who refuses a lawful order may be subject to adverse action, such as a letter of reprimand or court-martial. However, a servicemember who follows unlawful orders may also be subject to adverse actions if they violate the Uniform Code of Military Justice (UCMJ).
The Constitution Census: How Often?
You may want to see also
Frequently asked questions
An unlawful order in the military is one that is illegal, immoral, unethical, or unrelated to military duty. An order that violates statutory or constitutional rights, or that is arbitrary, overly broad, or intended to harass or humiliate a service member may also be considered unlawful.
Some examples of unlawful orders include the My Lai Massacre, where Lt. William Calley ordered his men to kill hundreds of unarmed Vietnamese civilians, and the Abu Ghraib Prison Scandal.
If time permits, the service member should consult with an experienced military defense attorney. If time does not permit, the service member should use their experience and training to make a decision. They can ask the individual who gave the order for clarification, for instance, by saying: "Sir/Ma'am, I just want to make sure I understand. Are you ordering me to do [action]?".
A service member who follows an unlawful order does not automatically escape criminal responsibility. They may be subject to adverse actions such as a letter of concern, reprimand, court-martial, or other punishments. However, there is a defense available for following unlawful orders, which could result in the accused being exonerated.
