Posted on Aug 12, 2015
Lawful Orders, Who can tell if an order is unlawful?
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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?
Orders
Constitution
Law
Posted >1 y ago
Responses: 25
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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.
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.
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MCPO Roger Collins
They all are until they are not. Dangerous territory until they are proven not to be. Know anyone that has won a case of what one considers an unlawful order?
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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).
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).
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Capt Seid Waddell
CPT (Join to see), this example is appropriate on several levels. The My Lai complex had been declared a “free-fire zone”, meaning that there was nothing but enemy there, and a sweep of the area was being conducted to clear it out. LT Calley had initially captured a large group of prisoners and was holding them at a fork in the trail. CPT Medina asked LT Calley why he wasn’t keeping up and LT Calley informed him about the prisoners.
CPT Medina told him to “take care of them”, and LT Calley said that he would assign a detail to guard them. CPT Medina said that this was not what he meant – and to “take care of them”. LT Calley then ordered his men to mow them down, and he participated in the shooting before his unit’s joining its position in the sweep. When they entered My Lai the slaughter picked up tempo.
When CWO Thompson saw what was happening he tried to get a LT to order his men to stop. He set his chopper down between a group of Vietnamese in a bunker and the approaching American troops, and threatened to open fire on the American troops if they did not stop. He then had the Vietnamese ferried out and went to the ditch where villagers had been concentrated and gunned down to look for survivors. I only recall one young child that he rescued but there may have been others.
When LT Calley was called to Washington much later he thought he was going to get a medal, but was arrested, tried, and convicted instead; he was the only one convicted for war crimes in the incident.
CWO Thompson faced repercussions in his unit for his actions and paid a steep price for his actions for many years.
Either obeying or disobeying an illegal order can have serious consequences; your life will never be the same – even if you are in the right.
http://www.historynet.com/interview-larry-colburn-why-my-lai-hugh-thompson-matter.htm
CPT Medina told him to “take care of them”, and LT Calley said that he would assign a detail to guard them. CPT Medina said that this was not what he meant – and to “take care of them”. LT Calley then ordered his men to mow them down, and he participated in the shooting before his unit’s joining its position in the sweep. When they entered My Lai the slaughter picked up tempo.
When CWO Thompson saw what was happening he tried to get a LT to order his men to stop. He set his chopper down between a group of Vietnamese in a bunker and the approaching American troops, and threatened to open fire on the American troops if they did not stop. He then had the Vietnamese ferried out and went to the ditch where villagers had been concentrated and gunned down to look for survivors. I only recall one young child that he rescued but there may have been others.
When LT Calley was called to Washington much later he thought he was going to get a medal, but was arrested, tried, and convicted instead; he was the only one convicted for war crimes in the incident.
CWO Thompson faced repercussions in his unit for his actions and paid a steep price for his actions for many years.
Either obeying or disobeying an illegal order can have serious consequences; your life will never be the same – even if you are in the right.
http://www.historynet.com/interview-larry-colburn-why-my-lai-hugh-thompson-matter.htm
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Capt Mark Strobl
My Lai continues to be a topic at Quantico. Great example & reference, Capt Seid Waddell
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Capt Seid Waddell
Capt Mark Strobl, it changed officer training at the time too - it was a massive failure of leadership. Compounding this defect was the practice of rotating troops into and out of the war zone individually rather than in units. There were usually relatively green officers and men in every unit as a result; when they learned the ropes they rotated out again leaving less experienced troops in the field.
It was also a war in which the lines between civilians and combatants were blurred at best, and the training ill-prepared young officers to make good decisions under such circumstances. Distinguishing VC from civilians was not an obvious task, and free-fire zones made that task even more difficult.
At the time of his arrest many of us (not directly involved) did not understand what he had done wrong. The details came out much later, as did the more specific training.
It was also a war in which the lines between civilians and combatants were blurred at best, and the training ill-prepared young officers to make good decisions under such circumstances. Distinguishing VC from civilians was not an obvious task, and free-fire zones made that task even more difficult.
At the time of his arrest many of us (not directly involved) did not understand what he had done wrong. The details came out much later, as did the more specific training.
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SSG Daniel Deiler
If in an austere environment or at least in the event this country fell under Marshall law, how would one know if an order was legal or illegal (due to a lack of updated information)? How would one be able to know if disarming a fellow American that posed no threat would be legal or illegal? I can see an over zealous liberal lieutenant giving the order to disarm an American. The 2nd Amendment bestows upon all American (non-felon) the right to bear arms. Hopefully common sense rules and Soldiers would know that the dis-armament of an American is illegal.
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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.
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.
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SPC Steven Ward
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?
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?
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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.
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All military members are given training in basic training about lawful orders. It gets down to common sense.
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PO1 John Miller
SSgt Alex Robinson
You say that now, but I bet it would be harder to make that determination if you were actually faced with an alleged illegal order. I know I would!
You say that now, but I bet it would be harder to make that determination if you were actually faced with an alleged illegal order. I know I would!
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SSgt Alex Robinson
PO1 John Miller - John at one point I my career I did face it and handled it thru the chain of command appropriately
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MAJ (Join to see)
The common sense requirement for lawful order determination isn't very common. One of the hardest choices you'll ever have to make, likely a career ender either way.
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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.
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Suspended Profile
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...
MAJ (Join to see)
Likely if there is a call up there won't be much time for planning and JAG briefings, most likely there will be minimal information and an overstated threat. There isn't much deviation in the history books on how a dictator will use the military for their own means, almost always it's misinformation prompting military action.
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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?
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SPC Christopher Perrien
I certainly would not confiscate weapons from who I judge to be responsible citizens. Which happened after Katrina.
That was flat out wrong and illegal IMO. Whoever ordered that should still be in jail.
That was flat out wrong and illegal IMO. Whoever ordered that should still be in jail.
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Capt Seid Waddell
SPC Christopher Perrien, these people believe in the same way.
http://oathkeepers.org/oktester/about/
http://oathkeepers.org/oktester/about/
Oath Keepers is a non-partisan association of current and formerly serving military, police, and first responders, who pledge to fulfill the oath all military and police take to “defend the Constitution against all enemies, foreign and domestic.” That oath, mandated by Article VI of the Constitution itself, is to the Constitution, not to the politicians, and Oath Keepers declare that they will not obey unconstitutional orders, such as...
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