Huge error here in terminology, which leads to a huge error in understanding the subject: – Orders issued in the military are either ‘lawful’ or ‘unlawful.’ – All orders are ‘legal’ if issued from a superior by position or rank to a subordinate because of the formally recognized chain of command and rank structure within the military. [Comment left under my latest OK piece](Mirrored here where it is deemed a "flaw")
First Sergeant, with all due respect, and stipulating that I don't pretend to have your personal professional experience in this matter, ultimately it will be adjudicated as a matter of legality. If you disagree, your argument is not with me, but with, among others, the United States Court of Military Appeals in UNITED STATES v WILLIAM L. CALLEY, JR.:
I therefore instruct you, as a matter of law, that if unresisting human beings were killed to My Lai (4) while within the effective custody and control of our military forces, their deaths cannot be considered justified, and any order to kill such people would be, as a matter of law, an illegal order. Thus, if you find that Lieutenant Calley received an order directing him to kill unresisting Vietnamese within his control or within the control of his troops, that order would be an illegal order.[Emphasis added.]Yes, I understand courts are hardly infallible or incorruptible, one of the main reasons we find ourselves in the intolerable mess we're in. I don't offer this to argue the point, as that would be a distraction from the purpose of this article, to solicit the experiences of Oath Keepers for these questions:
Would the guys you know and have worked with “just follow orders”? Do you have a feel for the ratio of those who would vs. those who would not? And do you have a feel for how current active duty personnel would respond?Perhaps it would help to rephrase those as orders your understanding concludes are unconstitutional? Isn't that what we're here for?
Actually, David, that's the crux of the issue. The courts have set themselves up for reversal with the tomato/tahmahto argument/rulings, which is not to say that those who were/are (maybe, maybe not) trained in what a lawful order is vs a legal order, and the requirements to obey/refuse to obey have going for them in the long run.
ReplyDeleteAs has been oft repeated throughout the blogosphere on various memes, "Everything Hitler did was, 'legal'" but it sure as hell wasn't lawful, according to the findings of the Nuremberg trials, right? Same precedent here. Everything that is now being ordered (that is destroying the military and 'dumbing them down' on what to obey or not obey), is, in fact, legal, because the orders have been issued within the formal, recognized, legitimate structure of the military. However, the military members who are lacking the education in what is really what may find themselves one day facing a similar trial as the one in 1946 and an edict, "...ignorance of the law that every man should know is no excuse; you had a duty to a higher power..."
It's really not a case of tomato/tahmahto when it comes to military law and justice. Quick example: Only officers can give 'direct' orders. Only officers can be punished as a courts-martial may direct for 'conduct unbecoming'. NCO's can be 'non-judicially punished for failure to follow orders or regulations; officers cannot. NCO's cannot give 'direct orders'; they can only give 'lawful orders'. They cannot give 'legal orders.' It's all in the UCMJ for those who want to research.
And there lies another issue. Ignorance of the law (UCMJ) by both officers, NCO's and enlisted when it comes to violating orders. One cannot violate an unlawful order by refusing to obey it. If the order is unlawful - say a Captain points to a troop and says, "Soldier! Shoot that child standing in front of you-that is a DIRECT ORDER!" <--silly example (I pray to God above), the soldier who refuses to obey is correct because it is unlawful (it is legal-the order giver is an officer in this case) is correct, and has grounds to apprehend (the physical taking into custody and is the military equivalent for civilian arrest (taking into physical custody) - in the military, 'arrest' is a moral restraint) the officer who issued the unlawful order. If the officer made a move to shoot the child himself, the soldier is well within his bounds to defend the life of the child with whatever force necessary.
Yeah, I know, splitting hairs. I'm no lawyer, either, but as a First Sergeant, I had to have in-depth knowledge of the UCMJ and what constituted a charge; what was lawful, legal, and the difference between the two.
"Eye vus chust vollowink ordas" will not be an excuse for anyone in the military.....or in command at ANY level.
Thanks for the chance to provide information and discuss.
Thank you, First Sergeant, for that very good breakdown.
ReplyDeleteThe Devil is indeed in the details, in nealy all matters of law.
Those who will not examine the question closely are doomed to error.
First Sergeant is both 100% correct and 100% missing the point. We can discuss an outline for a GMT on lawful versus legal orders all day, but the point of the question was not that at all. The question posed had to do with the ratio one might expect of service members who would just follow orders to those who would actually make that distinction between legal and lawful; make a determination and refuse.
ReplyDeleteThose who believe that the average Sailor, Marine, Soldier, or Airman - when ordered, for example, to search houses for illicit weapons during an "emergency" are going to stop and ponder the Constitutionality of such an order, much less make the (correct) determination that the order is likely lawless and decide to refuse to comply - are putting a great deal of misplaced faith in them. Far more likely is the New Orleans scenario redux. A political leader gives an unlawful but legal order to a general officer; it gets passed down - perhaps questioned quietly but passed down nonetheless - until it reaches the desk of a recently pinned First Sergeant who tells his troops to gear up and mount up. Guess what? They will. There might be 3 in a hundred Specialists or Sergeants or First Class Petty Officers out there who will stand up and refuse to follow the order. One in a thousand with the conviction needed to attempt to arrest his NCO or an officer over it. It's laughable to think that when the rubber meets the road the military will suddenly get the urge to question orders. Especially when this won't happen all at once. There won't be an order to line up dissidents and shoot them out of the blue. First would come searches of "suspected insurgents", then when there was still violence in the "emergency" there would be general searches of those suspected of "holding dangerous weapons." You get the drift. Once the soldier is conditioned to searching his fellow citizens homes on flimsy grounds, general searches for weapons, ammunition, or dissident literature is an easy step.
@Mark M: Further down the OK page, I said this: "Now, as to the answer to the question on Trump: The minute Trump (if he wins) starts to prep to ‘hit the ground running’ after the general election, his Transition Team is going to have to start briefing him on things he can and cannot do. One of which will (or at least should) be issuing unlawful orders. And yes, I’m aware that the current occupant has gotten away with ‘murder’, however, if one looks at his track record of Executive Orders, he’s done everything in regard to the military legally, but not necessarily lawfully, and he’s backed up his actions with legal maneuverings (personally, I am of the opinion that the regime counted on the fact that the military has confused ‘legal’ with ‘lawful’ which has paralyzed the Joint Chiefs (that, and not wanting to upset their own rice bowl). I further believe that the purge of senior officers was based in part on getting rid of those who might challenge the lawfulness of orders received.
ReplyDeleteTrump may do the same; it’s almost certain that Clinton will, as a matter of course. One only has to look at Benghazi to see the completely legal refusal to send aid, no matter how much the action violated the spirit of the law and military custom. Look at how many military folks’ careers were ended over their refusal to comply with the legality of those orders to stand down.
Refusing to obey unlawful orders carries price; one hopes that one is never faced with that, but one must be resolved to do what is right when balanced against the UCMJ, the Constitution, and our duty to a ‘higher power’ (aka ‘Objective Truth’).
It’d give me great hope if I knew that our senior officers and NCO’s were educating our troops on what obeying lawful orders is comprised of, and how to refuse an unlawful order.
But I’m not counting on it…."