2009-03-18

OK. Let's go over unlawful orders again

Knoxville (Tennessee) News Reports on Birth Certificate Issue

Every such person swears to support and defend the Constitution and to obey the commander-in-chief. But, if that commander occupies the position illegally, then those personnel have an affirmative duty (under the Uniform Code of Military Justice) to disobey any order given by an unlawful authority.
No, they don't. They have a negative duty not to obey an unlawful order, regardless of its authority.

Let's go back to the Manual for Courts-Martial. 14.c(2)(a) reads, in part:
(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.
Illegal orders are orders issued by the proper authority that compel the soldier to commit an illegal act. George W. Bush could give illegal orders under his authority as president. So could Barack Obama. I, however, cannot issue an illegal order unless I become president or join the military. In any case, unless your orders come directly from the president (in which case, your rank is either General or Colonel in the Army--not sure about other branches of the military), the officer issuing the order is not Barack Obama.

As for the negative/affirmative stuff, it's pretty simple: If your CO orders you to guard a water pump and shoot any civilian who tries to drink from it, that's pretty obviously illegal. You do not have to shoot those civilians. But if you see the enemy trying to drink from the pump, you do not have the obligation not to shoot her.

So good luck trying to get someone to believe your interpretation of the UCMJ.
To my knowledge, it hasn't happened ... yet.

Although Obama recently increased our troop strength in Afghanistan, he has not yet attempted to start any new war.
Hasn't attempted to start a new war...yet. Is Obama like a foreign-food diner? "I'm in the mood for a Thai war tonight. I've got my leftover Côte d'Ivoire war in the fridge, so maybe I'll have that war tomorrow."
If he does, and if soldiers disobey, the Manual for Courts-Martial is on their side. (As a former Air Force law-enforcement supervisor, and leader of counter-terrorist teams, I am familiar with the UCMJ provisions and the MCM procedures.) One cannot be punished for disobeying an order if the order was unlawful.
There are two possibilities. Either you're not a former AF supervisor, or you need to brush up on the MCM. It is most definitely not on your side.

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