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0 pointsJumpCrisscross1y ago0 comments

> I thought there was some legal provision in the US for the military to disobey unconstitutional orders

It's less a legal provision than a consequence of humans being the interface of the law. So while there is, in theory, a duty to disobey, there is also a presumption of lawfulness of orders [1][2].

[1] https://ucmjdefense.com/resources/military-offenses/the-lawf...

[2] https://warontherocks.com/2017/07/when-can-a-soldier-disobey...

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psunavy031y ago

Rule 916(d) in the Manual for Courts-Martial, quoted in your second source, is really the pull quote here:

> It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.

So for those non-military reading, while it's almost always a bad idea to try to sea-lawyer your way out (though some court challenges have worked), you also are expected to use "ordinary sense and understanding" to reject orders like "go massacre those clearly unarmed noncombatants." But if it's not as cartoonishly obvious as that, there's a good chance you will have to defend your actions at a court-martial, and the legality of the order will be down to the interpretation of the presiding military judge and appellate courts.

microtherion1y ago

But that covers only the case where the accused obeyed an unlawful order. It does NOT cover the case where the accused REFUSED an unlawful order.

psunavy031y ago

Refusing an ambiguously-lawful order would, under that source, trigger a prosecution or nonjudicial punishment under UCMJ Article 92 - Failure to obey a lawful order or general order. And it would need to be determined at trial and/or on appeal whether the order was lawful, because Article 92 requires the Government to plead/prove four things:

- That a member of the armed forces issued a certain lawful order;

- That the accused had knowledge of the order; and

- That the accused had a duty to obey the order; and

- That the accused failed to obey the order.

If the order is deemed unlawful by the military judge or appellate court, the case must be dismissed, because the Government has failed to allege an offense.

microtherion1y ago

Ah, that clarifies things. Thanks!

neves1y ago

And always remember the old quote: militar justice is to justice as militar music is to music

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psunavy031y ago

Rule 916(d) in the Manual for Courts-Martial, quoted in your second source, is really the pull quote here:

microtherion1y ago

But that covers only the case where the accused obeyed an unlawful order. It does NOT cover the case where the accused REFUSED an unlawful order.

psunavy031y ago

- That a member of the armed forces issued a certain lawful order;

- That the accused had knowledge of the order; and

- That the accused had a duty to obey the order; and

- That the accused failed to obey the order.

If the order is deemed unlawful by the military judge or appellate court, the case must be dismissed, because the Government has failed to allege an offense.

microtherion1y ago

Ah, that clarifies things. Thanks!

neves1y ago

And always remember the old quote: militar justice is to justice as militar music is to music

j / k navigate · click thread line to collapse