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Sun May 21, 2017, 10:17 AM

Question: Is it legal for the military to refuse to comply with an illegal order from the president?

For example, if the president orders an illegal and unconstitutional attack that was required to be authorized by Congress but was not, can the military insist upon Congressional approval first, or must they blindly carry it out?

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Reply Question: Is it legal for the military to refuse to comply with an illegal order from the president? (Original post)
Towlie May 2017 OP
TEB May 2017 #1
DrDan May 2017 #10
TEB May 2017 #15
DrDan May 2017 #17
TEB May 2017 #20
DrDan May 2017 #24
Mosby May 2017 #25
DrDan May 2017 #27
Aristus May 2017 #2
Turbineguy May 2017 #3
Calista241 May 2017 #4
roamer65 May 2017 #5
DrDan May 2017 #11
Wounded Bear May 2017 #6
beachbum bob May 2017 #7
ATL Ebony May 2017 #8
DrDan May 2017 #12
ATL Ebony May 2017 #14
stevenleser May 2017 #16
DrDan May 2017 #18
Brother Buzz May 2017 #9
stevenleser May 2017 #13
Doreen May 2017 #19
stevenleser May 2017 #21
Eliot Rosewater May 2017 #26
stevenleser May 2017 #29
Eliot Rosewater May 2017 #32
stevenleser May 2017 #33
sarisataka May 2017 #22
stevenleser May 2017 #30
sarisataka May 2017 #31
HAB911 May 2017 #23
stevenleser May 2017 #28

Response to Towlie (Original post)

Sun May 21, 2017, 10:25 AM

1. No it is against ucmj to carry out immoral orders

Whether direct or indirect and as well against a troopers moral compass.

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Response to TEB (Reply #1)

Sun May 21, 2017, 11:56 AM

10. I don't think that is true -illegal/unlawful yes, but not immoral

do you have a source to the contrary?

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Response to DrDan (Reply #10)

Sun May 21, 2017, 12:11 PM

15. Just as former infantry trooper

We were always taught by ucmj you have obligations to defy an unlawful order as in dealing with morals. Dealing civilians or say Warsaw Pact troops. I swore to defend the constitution against enemies foreign domestic but that I was only following orders think nazis that did not work. Troopers are not robots they have men I served with a very good standard of moral and honor. If say my lai LT calley orders a soldier to pump rounds into a civilian and he refuses no way would that trooper be court martialed.

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Response to TEB (Reply #15)

Sun May 21, 2017, 12:14 PM

17. yes, "unlawful" - those can and should be disobeyed - not "immoral"

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Response to DrDan (Reply #17)

Sun May 21, 2017, 12:57 PM

20. Illegal yes unlawful same was not splitting hairs

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Response to TEB (Reply #20)

Sun May 21, 2017, 01:57 PM

24. not sure I undersatnd your post - but . . . you can disobey an order if it is illegal or unlawful

(hence my use of a hyphen)

you cannot disobey an order if considered "immoral"

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Response to DrDan (Reply #24)

Sun May 21, 2017, 02:06 PM

25. the problem is that the military leadership

And the courts get to ultimately decide if the order was legal.

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Response to Mosby (Reply #25)

Sun May 21, 2017, 02:21 PM

27. well . . . yeah . . . when you decide to disobey an order the onus on on you

and yes . . . you will be tried by a military court.

However, you are entitled to a civilian attorney in addition to assigned JAG.

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Response to Towlie (Original post)

Sun May 21, 2017, 10:29 AM

2. Yes.

When I was in Basic Training (in 1986, where did the years go?...), we had an entire afternoon of classes called Role Of The Army. They taught us about lawful and unlawful orders, what constituted an unlawful order, and what to do if we were issued an unlawful order. We were told we had a legal, moral, and ethical obligation to disobey that order.

Which is why I called 'bullshit' on all those troopers implicated in the Abu Ghraib scandal who said they were following orders.

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Response to Towlie (Original post)

Sun May 21, 2017, 10:29 AM

3. I seem to recall we spent time in class

(Naval Operations Analysis) dealing with the thorny topic of "lawful orders". It was still during the Vietnam War.

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Response to Towlie (Original post)

Sun May 21, 2017, 10:31 AM

4. The Constitutionally of the War Powers Resolution is something scholars have debated for decades

The President is the Commander in Chief. Period. Any order he gives to attack almost anything, unless it violates established treaty, or is just not reasonable, is by definition Constitutional.

If Trump woke up next week and decided we need to carpet bomb London, military officers would probably throw a fit, and his cabinet and VP would probably intervene with the 25th Amendment option. However, if he decided to start a massive bombing campaign in Syria, Afghanistan, Libya, Indonesia or somewhere where a "threat" can be reasonably identified, the military would probably carry it out with very little question.

Trump has gone to great lengths to endear himself to police and the military. He's appointed highly respected and admired military officers to his core cabinet. I suspect the military has a much higher opinion of our Commander in Chief than the rest of our population does.

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Response to Towlie (Original post)

Sun May 21, 2017, 10:36 AM

5. Yes. They take an oath to the Constitution, not the CIC.

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Response to roamer65 (Reply #5)

Sun May 21, 2017, 11:58 AM

11. " . . . and that I will obey the orders of the President of the United States . . . "

Oath of Enlistment

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Response to Towlie (Original post)

Sun May 21, 2017, 10:37 AM

6. Technically, yes it is legal to refuse to obey an illegal order...

but if you do a thought experiment on it, you realize it becomes kind of tricky to prove it should the situation arise.

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Response to Towlie (Original post)

Sun May 21, 2017, 11:37 AM

7. Military swears an oath to uphold the constitution, not a president.

 

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Response to beachbum bob (Reply #7)

Sun May 21, 2017, 11:44 AM

8. A relief to have clarity on this topic. Thanks.

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Response to ATL Ebony (Reply #8)

Sun May 21, 2017, 12:01 PM

12. tread carefully - that is not accurate

".. . . and that I will obey the orders of the President of the United States. . . "

the Oath of Enlistment

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Response to DrDan (Reply #12)

Sun May 21, 2017, 12:08 PM

14. Thanks but I hope there's protocol as to how to handle illegal CIC orders and

I'm sure the Constitution would trump the CIC, or at least I hope so.

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Response to ATL Ebony (Reply #14)

Sun May 21, 2017, 12:14 PM

16. See my #13. nt

 

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Response to ATL Ebony (Reply #14)

Sun May 21, 2017, 12:17 PM

18. illegal orders can and should be disobeyed

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Response to beachbum bob (Reply #7)

Sun May 21, 2017, 11:49 AM

9. Officers swear an oath to uphold the constitution

Enlisted men swear an oath to the constitution, the president, and their appointed officers. This dumb AUS draftee always found that peculiar difference interesting

"I, (state name of enlistee), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God."

I, _____, having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God."

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Response to Towlie (Original post)

Sun May 21, 2017, 12:08 PM

13. That type of potentially illegal order is difficult for members of the military to refuse

 

I say potentially because congress can always ratify it later so where does that leave you if you refused to obey?

When you are at basic or at one of the various methods to commission, you are given classes on what is and is not a lawful order and suggestions for what to do if given various types. The type you posit here is not discussed.

Generally the types of unlawful orders discussed are:
1. Senior officer orders you to their home to wash their car. That is an unlawful order. The general suggestion is to do it but report it later.

2. Senior officer orders you to physically harm or kill someone on base they dislike. You must disobey, get out of the situation and report it.

3. Senior officer orders you to commit fraud or similar crimes. Again, you must refuse or extricate yourself from the situation at your earliest possibility and report it.

4. Various battlefield situations like ordering to kill prisoners of war, killing civilians, etc. Obviously you must disobey most of those.

What you are talking about in terms of an unlawful order is a matter for the branches of government to handle via their checks and balances. You cannot ask the military to sort that out. That is congress' job.

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Response to stevenleser (Reply #13)

Sun May 21, 2017, 12:56 PM

19. "most" of those?

Which ones must you follow? It makes it sound like "some" of those are on a thin line of legal and/or immoral but must be followed.

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Response to Doreen (Reply #19)

Sun May 21, 2017, 01:07 PM

21. Some are on a thin line

 

Obviously an order to kill prisoners of war in custody or civilians who have done nothing is an easy one. Disobey.

There are many other situations one can envision, particularly in wartime, on the front or behind enemy lines or in urban warfare where the line isn't so simple.

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Response to stevenleser (Reply #21)

Sun May 21, 2017, 02:21 PM

26. The simple reality is we know trump is capable of firing a nuke to cover his ass.

We know he is extremely likely to call unwise military ops to cover his own ass, already did twice, many died each time.

If someone doesn't stop his inevitable call to arms of one type or another, we may see a rock tumbling down a hill that cant be stopped

One thing leads to another.

Each hour John McCain or Lindsey Graham, self professed "super" patriots dont call for impeachment, they lose any right to be called patriots.

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Response to Eliot Rosewater (Reply #26)

Sun May 21, 2017, 02:32 PM

29. Use of nuclear weapons when not under attack requires POTUS to get concurrence from

 

a senior cabinet member. The two man rule is in effect except when it is in response to a nuclear attack against us.

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Response to stevenleser (Reply #29)

Sun May 21, 2017, 05:01 PM

32. Who would he have to get permission from specifically?

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Response to Eliot Rosewater (Reply #32)

Sun May 21, 2017, 08:30 PM

33. Not permission, concurrence from the SecDef.

 

The rules say the SecDef has to verify that the order is coming from the President and legally he has to authenticate the order if it is in fact coming from the POTUS. But I can't imagine a SecDef forwarding on an insane order to launch a first strike against someone.

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Response to Towlie (Original post)

Sun May 21, 2017, 01:47 PM

22. Not only legal but it is required

The Sticky Wicket is what is an illegal order...

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Response to sarisataka (Reply #22)

Sun May 21, 2017, 02:35 PM

30. I'm curious to know what your take is on the specific instance the OP asks about

 

See my #13, those were the kinds of things we were taught about in basic.

The situation raised in the OP is not one we were taught about or discussed. Refusing a deployment in that situation is not something I would recommend to anyone.

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Response to stevenleser (Reply #30)

Sun May 21, 2017, 04:31 PM

31. The scenarios you spoke of

In post 13 are correct. Generally those would be orders disobeyed. There could be some circumstances where they would be allowed. Example- an enemy is using human shields at a critical target, order to disregard it civilian casualties could become legal.

As for the OP, it would be near impossible to disobey a deployment order on the grounds it is illegal. By the time it reaches their rank-and-file many hiring have already bought off on the legality of it. There would have to be some overriding circumstance, perhaps a direct act of Congress, that would make the order illegal.

Even then it is questionable as the president is commander-in-chief so if the deployment isn't directly to attack a country we are not at war with Congress really would not have much say.

Certain orders regarding to a deployment may be illegal and could be disobeyed.

An example is during the time of Katrina I was assigned to an active-duty MP unit. We were going to have orders to go to New Orleans and be involved in disarming civilians.

We did not object to deploying but we did to the order to disarm civilians. As the order was given by the mayor of New Orleans we felt it was not a valid order for active duty military to obey. Also we voiced concern it would be contradicted by the 2nd, 4th and 5th amendments.

In the end our deployment orders were rescinded and National Guard units were sent instead. We were not refusing the deployment just certain conditions of it.

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Response to Towlie (Original post)

Sun May 21, 2017, 01:55 PM

23. I was just following orders

is the Nuremberg/Nazi Defense

We are obligated to not carry out unlawful orders

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Response to HAB911 (Reply #23)

Sun May 21, 2017, 02:30 PM

28. Yes but OP asked about a specific kind of order and it wasn't to commit genocide

 

Or to commit any other war crimes or crimes against humanity

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