The recent brouhaha over the motorized logistics platoon's refusal to
obey an order to resupply combat units in an area they thought too
hazardous in light of their vehicles' poor protection raises the
question of what constitutes a defensible refusal to obey such an
order.
From Art 90, UCMJ: Willfully assaulting or disobeying a superior
commissioned officer.
(2) Disobeying superior commissioned officer.
(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.
A subordinate who, understanding the above, still chooses to disobey
an order does indeed do so at his or her peril. And yet in this
instance, if charges are brought and if these soldiers stand trial, I
submit that a good defense counsel able to prove the bases for their
fears and resultant refusal to obey will be able to gain acquittals on
an assertion that the order was unlawful within the meaning of the
Code. This would raise another interesting question: was the
president's initial ordering of troops into battle unlawful in those
instances where the troops' persons and their vehicles were
inadequately armored?
Are there any similar cases on record where an order was deemed
unlawful, not because the ordering officer sought to send his men into
harm's way, but because he did so knowing they had inadequate
protection, especially if that protection were attainable? Would the
officer's order be any more lawful, if the entire force of which his
unit was a part was inadequately protected? It could be, I suppose,
that in the current instance the soldiers who disobeyed orders could
be convicted of that offense, but that the officer giving them could
also be charged with dereliction of duty.
What say you? |
Clarification of Question by
nautico-ga
on
22 Oct 2004 05:48 PDT
Setting aside the recent event, what kinds of orders might be validly
construed as unlawful, other than those that direct the commission of
a crime? What about frivolous orders: "I don't have time to shop for
groceries today. I want you (an enlisted subordinate) to do that for
me." Then there are orders that relate to sexual harrassment for which
I needn't cite examples. They are clearly unlawful within the letter
and spirit of the Code (Art. 133, Conduct unbecoming an officer and
gentleman, and Art. 134, "...all disorders and neglects to the
prejudice of good order and discipline....").
And what about crimes under international law, war atrocities for
example? LT Caley's orders that resulted in Vietnam's Mai Lai massacre
were surely unlawful and could have been disobeyed with relative
impunity.
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