The Duty to Disobey Unlawful Military Orders: A Legal Analysis

The Legal Framework for Military Orders

• ⚖️ The Uniform Code of Military Justice (UCMJ) establishes a duty to obey orders, crucial for military coherence and discipline.
• ⚠️ An exception exists for unlawful orders, which members have a duty to disobey, particularly those that are "manifestly unlawful" – obvious to any person of ordinary sense.
• 📜 The UCMJ is a federal statute, but its provisions are implemented through various regulations, case law, and manuals, including the Manual for Courts-Martial and the Law of War Manual.

Sources of Authority and Tension

• 📖 The duty to obey orders is explicit in the UCMJ (Article 90), with severe penalties, including death, for willful disobedience in wartime.
• 🌐 The duty to disobey unlawful orders is less explicit in the UCMJ but is derived from other sources like the Law of War Manual and international treaties such as the Geneva Conventions.
• ⚖️ This creates a tension where disobedience of a lawful order has severe consequences, while the parameters of an unlawful order can be complex and subject to interpretation.

Determining Lawfulness and Manifestly Unlawful Orders

• 🧑‍⚖️ In a court-martial, the judge determines the lawfulness of an order, a complex issue that can be a gamble for service members facing the decision in real-time.
• 💡 The concept of "manifestly unlawful" is often decided in hindsight, as illustrated by contrasting cases like Captain Yolanda Huer Vaughn (illegal war argument rejected) and Sergeant Smith (Abu Ghraib detainee mistreatment order deemed unlawful).
• 🎯 The Haditha massacre case highlights the difficulty, where Marines following orders to "clear houses" in a specific manner resulted in civilian deaths, raising questions about whether the order itself was lawful or if the execution was the issue.

Training, Experience, and Legal Advice

• 🧠 Training and experience are crucial for service members to understand their limits and assess the lawfulness of orders, often more so than direct legal advice in the moment.
• 📚 Pre-deployment training on rules of engagement and laws of war, often conducted by military judge advocates, is invaluable but cannot encompass every scenario.
• ⚠️ The law of war manual explicitly states that targeting shipwrecked persons is an unlawful order, a clear example that may not require specific training beyond general legal principles.

The Role of Legal Advisors and OLC

• 🏛️ The Office of Legal Counsel (OLC) opinions can influence legal interpretations, but they may contravene established international law like the Geneva Conventions.
• 🚫 There's concern that OLC opinions might be used to justify actions that are otherwise unlawful, potentially sidelining military lawyers who provide independent advice.
• 🛡️ Traditionally, military lawyers provide advice to commanders to ensure lawful operations, acting as a crucial safeguard. Recent changes may be undermining this role, creating a dangerous precedent.

The Orders Project and Future Concerns

• 📞 The Orders Project (orderspro.com) provides a credible source of information and legal assistance for military members with questions about lawful and unlawful orders.
• 📈 Calls to the Orders Project have increased, reflecting growing concerns among service members about potential unlawful orders, particularly regarding domestic deployments and overseas operations.
• 🔍 Key areas to watch include the structure of military operations, the ability of lawyers and commanders to make lawfulness decisions, changes in the Coast Guard's role, and potential firings of senior military lawyers.