A former colleague honored me today by asking if I would provide input to some training he is developing, influenced by recent statements from our new POTUS related to torture. The training will focus on the legalities of torture in military operations, with the intent of helping Soldiers internalize the justification behind outlawing such acts. It caused me to think about the duty not to follow unlawful orders in the military.
The Uniformed Code of Military Justice is the standardized law book across all military services. It does not directly address disobeying unlawful orders, but it does deal with the obligation to follow lawful orders (primarily in Articles 91 and 92). Specifying that one must follow a lawful order certainly implies that one does not have to follow and unlawful order, but that is a vague inference to draw. Fortunately, the Manual for Courts Martial provide an explicit explanation.
Paragraph 16c(1)(c) provides the following with regard to obeying a lawful order:
(c) Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a).
This is sufficient to make following an order to commit torture unlawful. As discussed in the original piece on torture (The Return to Torture), such acts are clearly illegal per US law and policy, as well as military policy and regulation AND international law. But what does 14c(2)(a) provide?
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.
(ii)Determination of lawfulness. The lawfulness of an order is a question of law to be determined by the military judge.
(iii) Authority of issuing officer. The commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service.
(iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.
(v ) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order.
I included the entire section, but the bolded and highlighted portion is most relevant. Again, if the order conflicts with established law then it is unlawful. So there is not requirement to obey, but where is the duty to disobey? That still requires a bit of extrapolation and inference, but it does not require significant effort. If an order is unlawful because the order is to commit an act that is otherwise criminal, then the duty to obey the law necessitates disobeying the order.
The UCMJ is a unique legal document, and has applicability only to uniformed service members. So what about federal civilians within the executive branch, under the direction of the POTUS? They do not have a UCMJ, but they have policies and laws and statutes with which they must comply, and which stipulate the limits of the President’s authority with respect to execution of their mission. BUT, they are fist and foremost citizens or legal residents of the US, and are subject to its laws and constitutional protections. Based on this very simple fact, they also must not comply with directives that are in conflict with standing law, as they will be subject to any punishment associated with violation of a given law.
The take-away is, the President cannot countermand law through executive action. Any order that he might give that attempts to do so would be immediately invalid.
It isn’t always easy to stand up to an authority figure, especially in the military, but it is necessary – even required – to do so. Let us hope we all have the courage to say no if directed to break the law.