Lawful Orders, Who can tell if an order is unlawful?

SPC Steven Ward — Wed, 12 Aug 2015 19:32:18 -0400

I am curious as to how many active duty personnel if given the order to engage American civilians in a Martial Law setting would do so?

Response by CPT Private RallyPoint Member made Aug 12 at 2015 7:43 PM

CPT Private RallyPoint Member — Wed, 12 Aug 2015 19:43:06 -0400

Good question. I can hardly wait to see some answers. SPC Steven Ward

Response by LCDR Private RallyPoint Member made Aug 12 at 2015 7:49 PM

LCDR Private RallyPoint Member — Wed, 12 Aug 2015 19:49:28 -0400

Eh... This is going to cause all sorts of arguments and potentially problems, so I will tread lightly and stay generic.

We should not question every order we are given to the extent that some purport, but we should be wary of anything that seems out of the norm or "wrong" to us. In that situation questions need to be asked, research needs to be done.

Response by Capt Mark Strobl made Aug 12 at 2015 7:51 PM

Capt Mark Strobl — Wed, 12 Aug 2015 19:51:33 -0400

Accidentally posted twice (read my other one).

Response by Capt Mark Strobl made Aug 12 at 2015 7:57 PM

Capt Mark Strobl — Wed, 12 Aug 2015 19:57:39 -0400

1 May 1992: In the wake of the Rodney King riots, Marines from Tustin, El Toro, and Camp Pendleton were dispatched to LA at request of Governor Pete Wilson. This was done with direction/approval from the Pentagon. If memory serves, soldiers from Fort Ord took part as well. The ROE's were simple: Protect yourself and all government property in view (couldn't save private property). Use of "reasonable" and "equitable" force was authorized. No one got hurt... to include the bad guys. But the show of force certainly changed some misguided hearts & minds. Besides, who in their right mind would want to get into a shootin' match with a bunch of Marines?

Response by SFC Private RallyPoint Member made Aug 12 at 2015 8:02 PM

SFC Private RallyPoint Member — Wed, 12 Aug 2015 20:02:10 -0400

"against all enemies, foreign and domestic"

Response by CPT Private RallyPoint Member made Aug 12 at 2015 8:11 PM

CPT Private RallyPoint Member — Wed, 12 Aug 2015 20:11:53 -0400

Keep in mind that following a unlawful order can get you into trouble. Make sure the order is lawful. The first recorded case of a United States Military officer using the "I was only following orders" defense is1799. During the War with France, Congress passed a law making it permissible to seize ships BOUND TO any French Port. When President John Adams wrote the order tp the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel BOUND FOR a French port, or TRAVELING FROM a French port. Following this Presidential order, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "ACT AT THEIR OWN PERIL" when obeying presidential orders when such orders are illegal.

The Vietnam War presented the United States military courts with many cases of the "I was only following orders" defense. Decisions from these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder because he obeyed an order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "THE JUSTIFICATION FOR ACTS DONE PURSUANT TO ORDERS DOES NOT EXIST IF THE ORDER WAS OF SUCH A NATURE THAT A MAN OF ORDINARY SENSE AND UNDERSTANDING WOULD KNOW IT TO BE ILLEGAL" (The soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

Response by SGM Steve Wettstein made Aug 12 at 2015 8:12 PM

SGM Steve Wettstein — Wed, 12 Aug 2015 20:12:53 -0400

IMO the situation would dictate what actions that are needed to be taken.

Response by MAJ Ken Landgren made Aug 12 at 2015 8:31 PM

MAJ Ken Landgren — Wed, 12 Aug 2015 20:31:48 -0400

The rules of engagement will be mentioned numerous times and vetted through JAG, then written down in the OPORD process.

Response by CW4 Guy Butler made Aug 12 at 2015 8:49 PM

CW4 Guy Butler — Wed, 12 Aug 2015 20:49:52 -0400

That probably means the Insurrection Act has been invoked:

http://policy.defense.gov/portals/11/Documents/hdasa/references/Insurrection_Act.pdf

There are some pretty obvious triggers, and the Posse Comitatus Act isn't applicable when the Insurrection Act is in effect.

Response by LCDR Rabbah Rona Matlow made Aug 12 at 2015 9:11 PM

LCDR Rabbah Rona Matlow — Wed, 12 Aug 2015 21:11:55 -0400

Good old Posse Comitatus... This is a very dicey situation for Active Duty folks. National Guard folks can be called upon to engage US citizens in US states and territories. It ultimately revolves around the situation. I would hope that if such an engagement were to occur, the JAG folks would brief the troops before action, so they know the law and the ROE...

Response by SPC George Rudenko made Aug 12 at 2015 9:53 PM

SPC George Rudenko — Wed, 12 Aug 2015 21:53:15 -0400

We had emergency law during Katrina etc. When people talk about martial law it is almost always in this tyrranical sense... Along with all the other conspiracies. As almost all of us are not law professors, proving that "I" was right refusing an order.... good luck.

Response by SPC Americo Garcia made Aug 13 at 2015 12:18 AM

SPC Americo Garcia — Thu, 13 Aug 2015 00:18:19 -0400

I worked on Hurricane Katrina, and Rita Both missions really different. Katrina was more of a babysitting job in the Houston, Galveston area. People where elders and never had family to help them. All of them with empty eyes not knowing what to do. for the young there was opportunity like no other to leave for a better life. I meant a couple with three kids and they took on a flight headed to the Midwest. told us they lost their home and memories this will give them a better way to assure their children a safe neighborhood. Saw some die from the exposure of the sewage and contaminated areas they came from. All of us had hand sanitizer and used it each time we came in contact with any of them. A woman asked me Mr. Garcia are we contagious, or some kind of disease. I explained to her that no they were not It is for protection. She asked can I use some I said yes you can it was out of humanity we were there. Also when we getting ready to go the acting First Sgt asked me a question since I had been on active duty and had more experience than most. He told me that Command wanted them to take weapons to Katrina. I told him they have Cops, Sheriffs, DPS, Marshalls, and even Constables all with weapons and law enforcement knowledge. So with all due respect besides five of the forty bodies have experience with all weapons. Our unit did not take any weapons I spoke to the Col in charge He agreed we are here for a humanitarian reason. I said had it been New Orleans then by all means yes only due to the active violence. Astrodome and Reliant parks had police confiscate all weapons and there was tons of them. When we went back for Rita it was even more on hands with people who had no power giving them ICE, Water, Food, telling them where to go to gather food. We also set up routes to convoy supplies through out the surrounding counties. I was through orders that we were not a threat to the public but rather a force of helping them. I agree with LCDR Nicholas Mulcahey that if any one feels the orders are unlawful then speak up. I would only question when someone says to me go and take weapons from civilians I will say no they are lawful citizens and can carry under the constitution. I took an oath to protect and defend the constitution like all military members. So unless the person is a real threat to us or the safety of the nation then I will follow those orders.

Response by SPC David S. made Aug 13 at 2015 12:58 AM

SPC David S. — Thu, 13 Aug 2015 00:58:28 -0400

Not a bad question considering Trump or Hillary could end up being our POTUS. I think if the order causes you to pause it might be wise to get clarification on the orders - don't won't to end up like LT Calley.

Response by SSgt Alex Robinson made Aug 13 at 2015 1:02 AM

SSgt Alex Robinson — Thu, 13 Aug 2015 01:02:28 -0400

All military members are given training in basic training about lawful orders. It gets down to common sense.

Response by Capt Seid Waddell made Aug 13 at 2015 2:40 AM

Capt Seid Waddell — Thu, 13 Aug 2015 02:40:57 -0400

Good question. Too many did so in the aftermath of Katrina.

Response by SFC Private RallyPoint Member made Aug 13 at 2015 3:01 AM

SFC Private RallyPoint Member — Thu, 13 Aug 2015 03:01:59 -0400

That's a good question and I hope and pray that we never have to find out. That would be a tough choice to make.

Response by PO1 John Miller made Aug 13 at 2015 8:14 AM

PO1 John Miller — Thu, 13 Aug 2015 08:14:26 -0400

I would like to say that I am intelligent enough to determine if an order were lawful or not, but who really knows unless they're actually faced with it?

Response by CW4 Guy Butler made Aug 13 at 2015 9:40 AM

CW4 Guy Butler — Thu, 13 Aug 2015 09:40:09 -0400

Since we're on the subject, anyone remember this article from 2012? Caused a lot of controversy at the time.

http://smallwarsjournal.com/jrnl/art/full-spectrum-operations-in-the-homeland-a-“vision”-of-the-future

Response by SGT Kristin Wiley made Aug 13 at 2015 11:49 AM

SGT Kristin Wiley — Thu, 13 Aug 2015 11:49:52 -0400

Not without a VERY good reason.

Response by MSgt Jim Wolverton made Aug 13 at 2015 12:03 PM

MSgt Jim Wolverton — Thu, 13 Aug 2015 12:03:03 -0400

I'd say if you have any doubts about an order, especially one such as this, a trip to the base legal office is in order to verify, if it hasn't already been verified as lawful.

Response by Cpl Tou Lee Yang made Aug 15 at 2015 4:24 PM

Cpl Tou Lee Yang — Sat, 15 Aug 2015 16:24:56 -0400

The Constitution does states to protect against all enemy, foreign and domestic. I mean, everyone has taken the oath when they enlist.

Response by SGT William Howell made Oct 26 at 2015 9:39 AM

SGT William Howell — Mon, 26 Oct 2015 09:39:27 -0400

Only you can until it goes to trial. You have to know as any reasonable person would that an order is not lawful. If you do not know, but think it is and do not have time to research you have to assume it is lawful.

An example would be. You are in Afghanistan you took fire and then they ran away. You can now see them in a position across a valley. Your PL gets on the horn for some arty to make them go away. They tell him that it is in Pakistan and it is a no go. Your PL then tells you that you are going over there and take care of business. He knows it is an illegal order. You on the other hand do not. So you do it. There are a million things that are going to come into play when it goes to trial. Did you have access to maps, what rank were you, and things that I can't even think of right now. We you acting as a reasonable person?

Response by SPC Christopher Perrien made Oct 26 at 2015 11:51 AM

SPC Christopher Perrien — Mon, 26 Oct 2015 11:51:21 -0400

Our police forces especially the department of Homeland security) are far too militarize now.

The military should never be used as a mean of war against US citizens(Posse Comitatus). Any such orders to do so are a violation of (Posse Comitatus), which carries more rank than anything unless the act itself is absolved by Congressional Action.

Now martial law to protect other US Citizens property from destruction and thievery in a time of emergency is a different ball-game. In such cases, even an individual soldier is authorized to make summary judgements within the bounds of lawful orders. I guess I could word this better but I am not up to it ATM.

Response by SGT Private RallyPoint Member made Feb 2 at 2017 4:06 PM

SGT Private RallyPoint Member — Thu, 02 Feb 2017 16:06:25 -0500

I had a fellow soldier catch an Article 15 for disobeying an unlawful order, so at this point, I'm not so sure we can make the right decision anymore without some kind of repercussion. I haven't decided for sure yet, but it might be enough to keep me from reenlistment.

Response by SFC Michael Hasbun made Aug 27 at 2018 4:36 AM

SFC Michael Hasbun — Mon, 27 Aug 2018 04:36:52 -0400

Depends on what they're doing. Criminal acts and terrorism know no color/creed.

Response by CPT William Jones made Mar 15 at 2020 6:38 PM

CPT William Jones — Sun, 15 Mar 2020 18:38:01 -0400

If you feel order is illegal and your chain of command doesn’t agree. The commanding officer will file court martial orders and you will be tried. The prosecutor (trial counsel ) must prove the order was legal the defense will try to show it as not legal. Court will vote on verdict. You win it was illegal. Your home free then people issuing orders may be charged but you are home free