This piece was cross-published at ACS Expert Forum
Only a few months ago, the news was buzzing about whether the country might wind up having to face the prospect of martial law. The discussion abated and hasn’t reemerged (yet). But other questions of military law have come to the forefront as both National Guard and active component personnel of the armed forces have been drawn into the maelstrom triggered by the killing of George Floyd in Minneapolis and other recent incidents of racially-charged police brutality. A few words on how military justice – the internal disciplinary law of the armed forces – might come into play are in order.
Does military justice displace civilian justice?
The answer is No. Some offenses under the Uniform Code of Military Justice have no counterpart in civilian criminal justice. These include absence without leave, desertion, missing movement, malingering, disobedience, disrespect, dereliction of duty, mutiny, and the notoriously vaguer offenses of conduct unbecoming an officer and a gentleman and conduct to the prejudice of good order and discipline or of a nature to bring discredit on the service. But other “punitive articles” of the UCMJ criminalize conduct that is also criminal under federal or state law, such as murder, manslaughter, various sex offenses, arson, larceny, rioting, and the like. Unlike some countries, American military personnel are not beyond the reach of the civilian courts. What all of this means is that misconduct by military personnel in the course of their duties may lead to military justice proceedings such as courts-martial or, for minor offenses, nonjudicial punishment, or civilian prosecution if the actions involve criminal violations of state or federal law. Indeed, if the offense is against state law, both systems may prosecute without violating the Double Jeopardy Clause.
Since some of the military personnel involved in responding to civil disorder may be members of the state militia (the National Guard and Air National Guard) without being called into federal service, it should also be mentioned that each state and territory has its own code of military justice. These codes largely track the UCMJ but the level of punishments are often less serious.
What kinds of misconduct might arise?
One category that comes to mind is the use of excessive force in riot control or similar operations. For example, the UCMJ makes it an offense to be cruel or oppressive to any person subject to the soldier’s orders. A civilian who is under arrest is presumably protected by that provision. Another provision makes it an offense to release a prisoner without approval – or to drink an alcoholic beverage with a prisoner. A third provision makes it an offense to apprehend, arrest, or confine any person except as provided by law. Violating properly issued rules of engagement could be disobedience of a general order.
One hoary provision makes various kinds of conduct a crime when committed “before the enemy.” This includes running away, shamefully abandoning a post, engaging in cowardly conduct, casting away one’s arms or ammunition, or leaving one’s place of duty “to plunder or pillage.” Are angry crowds “the enemy”? Is it aiding the enemy (another UCMJ offense) to furnish “supplies” to protesters? There have been reports of looting in a number of cities. Looting and pillaging are UCMJ offenses, but is a foreign enemy required? The Manual for Courts-Martial defines “enemy” to include, in addition to organized forces of the enemy in time of war, “any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations.”
What if military personnel refuse to obey orders? What if military personnel agree to obey unlawful orders?
Disobedience is hazardous because, except for orders that are patently illegal (such as those that direct the commission of a crime) orders are disobeyed “at the peril of the subordinate.” The Manual for Courts-Martial explains that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” An order may be disobeyed only if the soldier knows it to be unlawful or if “a person of ordinary sense and understanding” would know it was unlawful. An order to shoot or otherwise assault journalists and other bystanders would be clearly unlawful. If the president were to issue a clearly unlawful order, military personnel would be obliged to refuse. And if they failed to refuse an unlawful order, they could be prosecuted for any conduct that violated the UCMJ. What sources of law could determine whether a presidential order is patently illegal? In addition to the Manual for Courts-Martial and federal statutes (including but not limited to federal crimes), constitutional protections (such as those relating to search and seizure or cruel and unusual punishments) apply.
If the president were to issue a clearly unlawful order, military personnel would be obliged to refuse. And if they failed to refuse an unlawful order, they could be prosecuted for any conduct that violated the UCMJ.
A putative order from a person who is not authorized to give orders is not a lawful order, and may be disregarded. Thus, if President Trump is not reelected, any order he attempted to issue after noon on January 20, 2021 could be disobeyed.
Under military law, an order must relate to a military duty and not “have for its sole object the attainment of some private end.” A good law school hypothetical would be whether a soldier could lawfully have disobeyed an order to walk with President Trump to “the Church of the Presidents” for the now-notorious Bible “photo op.” Or imagine an order to afford greater protection for a Trump property than to other buildings with comparable security threats.
Military personnel will also want to bear in mind the limitations on their free speech rights. For example, commissioned officers are forbidden by Article 88 of the UCMJ to speak contemptuously of the President, Vice President, Congress, Secretary of Defense, service secretaries, Secretary of Homeland Security, and the legislature or governor of the state in which they are on duty or present. This prohibition applies even if the statements are true. But – once these officials leave office, officers may speak ill of them to their heart’s content without fear of prosecution.
These are just a few of the military justice issues that could arise in this increasingly unpredictable period in our country’s history.