Wrestling with Legal and Illegal Orders in the Military in the Months Ahead

Good order and discipline are the familiar watchwords of military forces around the world. A disciplined force is one in which comprehensible, lawful orders are given and promptly followed. But must all orders be obeyed? If not, what is a soldier to do? These questions are not new, but they are particularly timely given the concerns many understandably feel about the possibility that the Trump administration will employ the armed forces in questionable ways before, during, and even after the 2020 election, even though Gen. Mark Milley, chairman of the Joint Chiefs of Staff, has firmly stated that the armed forces will not be involved in the election.

American military law is about as clear as it can be as to when orders must be followed and what sanctions are possible in the event of disobedience. No one could have predicted some of President Donald J. Trump’s dismaying conduct and treatment of the armed forces, and there is no guarantee that future administrations will be steadier, although it would be difficult for them not to be. Given what we’ve witnessed over the last few months, armed forces should critically review their training for both judge advocates and commanders, including the development and analysis of hypotheticals that explore possible scenarios arising from domestic unrest and possible use of the Insurrection Act.

What does military law say about orders, and what can happen if a soldier disobeys?

The Uniform Code of Military Justice (UCMJ) is America’s criminal code for the armed forces. It is an Act of Congress and applies not only to those on active duty in the Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard, as well as reservists, but also to personnel of the National Guard and Air National Guard when they have been called into federal service. National Guard and Air National Guard on state orders are subject to state codes of military justice that largely replicate the federal statute. For federal military personnel, the UCMJ’s implementing regulations can be found in the Manual for Courts-Martial, which is an executive order issued and amended from time to time by the president, as well as service-specific regulations issued by each branch of the armed forces. All of these have the force of law.

The UCMJ’s “punitive articles” criminalize the disobedience of lawful orders given by military superiors. These may be oral or in writing.  Usually, a servicemember cannot be prosecuted for violating a lawful order unless it can be proved that he or she actually knew about it. “General orders,” on the other hand, are different. These orders from senior officers are like statutes and regulations: Everyone is deemed to have notice of them if they have been properly disseminated.

There are potentially severe penalties for disobeying lawful orders. A disobedient soldier might simply be “chewed out” or given nonjudicial punishment if the commander considers the disobedience a minor offense. But disobedience of a lawful order can, depending on the circumstances, lead to the death penalty in time of war and in peacetime to confinement for up to five years, a stigmatizing punitive discharge (dishonorable or bad-conduct for enlisted personnel, dismissal for commissioned officers), loss of pay, and other sanctions.

Only lawful orders have to be followed. This is what the Manual for Courts-Martial says about the lawfulness of orders:

(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 subordinate’s peril. 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, custom of the Service, or applicable order to direct, coordinate, or control the duties, activities, health, welfare, morale, or discipline of the accused.

(iv) Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.

(v) Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order.

A few points leap out. What is a patently illegal order? This an order that “a person of ordinary sense and understanding” would know to be unlawful. That was the test set by the then-Court of Military Appeals (now the U.S. Court of Appeals for the Armed Forces) in the case of Army First Lieutenant William L. Calley Jr., who was convicted in connection with the My Lai massacre in Vietnam. An order to shoot to kill unarmed civilians or perform some other act that is itself criminal would qualify, but shades of gray plainly may emerge. Short of the very clear case, a soldier who disobeys an order on the assumption that it is unlawful may be rolling the dice.

But what shades of gray might arise on the current canvas? Suppose a superior officer orders a soldier to attend a political rally in uniform. That would be clearly unlawful because Defense Department regulations prohibit partisan political activity on duty or utilizing public resources. But what if the order was to attend in non-military campaign garb – perhaps wearing a Make America Great Again cap? That is also an illegal order, for the same reason and because it does not serve a valid military purpose. What if a member of the armed forces had been ordered to provide a backdrop for Trump’s Bible-holding photo-op in front of St. John’s Episcopal Church near the White House? Such an order would fairly clearly have had “for its sole object the attainment of some private end” — political gain.

Hypotheticals worth pondering include whether General Milley could have been prosecuted had he refused to walk with President Trump to the church door, or whether an order to paint over “Black Lives Matter” on a city street would have been legal, if the president asserted that these actions served the military purpose of force protection, including protection of the commander-in-chief at or near the White House. Recently, the Marine Band was required to play at what certainly seemed to be a campaign-related White House event. Would the piccolo player have had a defense if she refused to play John Philip Sousa’s immortal “Stars and Stripes Forever”?

Some orders may be illegal because they conflict with some other order of greater dignity. For example, suppose an order called upon an airman to engage in political or extremist activity that violated a Defense Department directive.

Or suppose the order was to help put down a demonstration, and the soldier was personally in support of the cause that had brought the demonstrators out into the street. Personal political views are not a defense. Nor does American military law recognize selective conscientious objection: military personnel do not get to pick and choose their fights. They cannot refuse to follow orders because, for example, they consider a particular mission unconstitutional or do not believe they have a duty to wear the U.N. beret on a U.N.-related mission.

One issue that perhaps is not entirely farfetched given current events is that there might be a dispute on Inauguration Day as to who actually is the president. Suppose Mr. Trump insists that he is still commander-in-chief even if he lost the election, or if the election results remain up in the air due to litigation. Would a servicemember have to follow his orders rather than those issued by, for example, an acting President Nancy Pelosi? The nearest analogy – and it’s not particularly near – is that of Lt. Col. Terrence Lakin, the “birther” Army doctor who refused to deploy, claiming that President Barack Obama was constitutionally ineligible to be president.

Experience over the last three years, and increasingly in recent months, teaches that events may unfold in highly unpredictable ways. Military personnel may well be drawn into situations for which there is no precedent. The issues may prove far murkier than any that faced the 101st Airborne when President Dwight Eisenhower sent troops to Little Rock, Arkansas, to ensure that Black students were allowed access to Central High School as it desegregated.

It is tempting to suggest that Congress or the executive branch should clarify the law regarding unlawful orders, but military law is probably as clear as it can be considering the vagaries of military operations, Mr. Trump’s indifference to previously accepted norms of governance, the nation’s contemporary turbulence, and the sheer number of individuals who are authorized to give military orders. Although the precedents may not be known to the average soldier, every judge advocate is trained on these issues and any soldier who seriously doubts an order’s lawfulness should seek legal advice unless immediate action is demanded. If it is impractical to obtain legal advice, a soldier faced with an order of questionable legality can also approach a more senior officer and ask that the order be countermanded.

A recently-launched non-partisan organization —  The Orders Project – with which I am involved, seeks to make former JAGs available for military personnel who are unable to get advice from a uniformed lawyer in real time. With luck, there will be no need for such advice, but because events may unfold in ways that cannot be fully anticipated, it is better to have a roster of trained volunteers available than to scramble in an emergency.

Image: Law enforcement responds during a protest near Lafayette Park ahead of President Trump’s trip to St. John’s Church on June 1, 2020 in downtown Washington, DC. Photo by Drew Angerer/Getty Images

 

About the Author(s)

Eugene R. Fidell

Senior Research Scholar at Yale Law School; of counsel at the Washington firm Feldesman Tucker Leifer Fidell LLP. Co-author, Military Justice: Cases and Materials (3d ed. 2020). Follow him on Twitter (@globalmjreform)