Posted on Dec 9, 2020
Would you obey an illegal or unconstitutional order?
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What are your professional and personal views on the right and the duty of active and retired military to disobey illegal or unconstitutional orders? (Ref. UCMJ, Articles 90, 91, 92; and the Fourth Geneva Convention.)
For instance, in the event a sitting U.S. President loses an election in the electoral college, and as a means to stay in office declares martial law or invokes the 1807 Insurrection Act, should you obey such an order? Would you individually be willing to comply?
Let's have a frank and friendly discussion on this vital topic....
e.g., https://www.witf.org/2020/06/02/president-trump-says-hell-deploy-military-to-states-if-they-dont-stop-violent-protests/
For instance, in the event a sitting U.S. President loses an election in the electoral college, and as a means to stay in office declares martial law or invokes the 1807 Insurrection Act, should you obey such an order? Would you individually be willing to comply?
Let's have a frank and friendly discussion on this vital topic....
e.g., https://www.witf.org/2020/06/02/president-trump-says-hell-deploy-military-to-states-if-they-dont-stop-violent-protests/
Edited 5 y ago
Posted 5 y ago
Responses: 203
Aside from the given example, Above Members have a duty to put the law first. During Hurricane Katrina, National Gaurdsmen were ordered to go door to door and confiscate guns. That's illegal. They did it anyway.
What if there really was a war between politicians who wanted to confiscate guns? Who's side would you be on? The government's, who pays you or the people you serious to protect?
I've given this a great deal of thought, but come to no conclusions. Nazi soldiers just followed orders, do our troops share the same ethics?
What if there really was a war between politicians who wanted to confiscate guns? Who's side would you be on? The government's, who pays you or the people you serious to protect?
I've given this a great deal of thought, but come to no conclusions. Nazi soldiers just followed orders, do our troops share the same ethics?
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The "Nuremberg Principles" were established after the prosecution of Nazi war criminals, many of whom either defended their actions as "following orders" or "following Germany's sovereign laws." Neither of these defenses was deemed acceptable.
The "Nuremberg Principles" are:
1. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
4. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
5. Any person charged with a crime under international law has the right to a fair trial on the facts and law.
6. The crimes hereinafter set out are punishable as crimes under international law:
a) Crimes against peace
b) War crimes
c) Crimes against humanity
7. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle 6 is a crime under international law.
http://www.nurembergfilm.org/trial_nuremberg_principles.shtml
The MOST relevant Principle listed above to the question is Nuremberg Principle 4: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
So, NO Service Member should obey an illegal or unconstitutional order. If the US Government (or any State Government as it relates to the National Guard) orders Service Members to violate a morally viable law and/or the US Constitution, Service Members have a Legal and Moral obligation to disobey those orders.
There are many worthy case studies that we might look at to help Service Members develop an Ethical Intuition to aid in future decision making. In the case brought before us ("President Trump says he’ll deploy military to states if they don’t stop violent protests"), we can examine the circumstances without consideration of the "politics" associated with them.
The First Amendment to the Constitution acknowledges the Natural Right of The People to "... PEACEABLY...assemble, and to petition the Government for a redress of grievances." [EMPHASIS ADDED]. Regardless of the where we line up on Trump or the circumstances surrounding George Floyd's tragic death, we cannot escape the fact that the riots and looting that occurred throughout the nation were anything but "Peaceful" -- and attempts by anyone to categorize them as "peaceful" should undergo psychiatric evaluation by competent medical professionals The fact that the riots and looting resulted in over 25 people dead and over half a billion in property damage should dissuade us of any illusion of PEACEABLE ASSEMBLY. Ergo, the President had the LEGAL authority to call on the Military to put down an insurrection and restore lawful peace and order under 10 U.S. Code § 251 to 254b -- just as President George H.W. Bush had during the LA Riots in 1992.
The next question that we have to ask: Is the 10 U.S. Code § 251 to 254b "Moral?" That depends on the situation... If the Government is violating the National Charter (the Declaration) and the National Bylaws (the Constitution), then enforcement of and obedience to orders given under the auspices of 10 U.S. Code § 251 to 254b may NOT have a moral basis, and Service Members are not obligated to follow them. In the case of the George Floyd riots, the Government was in the process of redressing the injustices involved in that tragedy. So, the violent uprisings that followed were neither justified nor proportional. Therefore, the exercise of 10 U.S. Code § 251 to 254b would certainly have been moral.
Therefore, IF President Trump ordered the US Military to aid in the suppression of a violent insurrection (which he did not) pursuant to 10 U.S. Code § 251 to 254b, then US Service Members would have had to obey these as "Lawful Orders."
The "Nuremberg Principles" are:
1. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.
2. The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
3. The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
4. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
5. Any person charged with a crime under international law has the right to a fair trial on the facts and law.
6. The crimes hereinafter set out are punishable as crimes under international law:
a) Crimes against peace
b) War crimes
c) Crimes against humanity
7. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle 6 is a crime under international law.
http://www.nurembergfilm.org/trial_nuremberg_principles.shtml
The MOST relevant Principle listed above to the question is Nuremberg Principle 4: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."
So, NO Service Member should obey an illegal or unconstitutional order. If the US Government (or any State Government as it relates to the National Guard) orders Service Members to violate a morally viable law and/or the US Constitution, Service Members have a Legal and Moral obligation to disobey those orders.
There are many worthy case studies that we might look at to help Service Members develop an Ethical Intuition to aid in future decision making. In the case brought before us ("President Trump says he’ll deploy military to states if they don’t stop violent protests"), we can examine the circumstances without consideration of the "politics" associated with them.
The First Amendment to the Constitution acknowledges the Natural Right of The People to "... PEACEABLY...assemble, and to petition the Government for a redress of grievances." [EMPHASIS ADDED]. Regardless of the where we line up on Trump or the circumstances surrounding George Floyd's tragic death, we cannot escape the fact that the riots and looting that occurred throughout the nation were anything but "Peaceful" -- and attempts by anyone to categorize them as "peaceful" should undergo psychiatric evaluation by competent medical professionals The fact that the riots and looting resulted in over 25 people dead and over half a billion in property damage should dissuade us of any illusion of PEACEABLE ASSEMBLY. Ergo, the President had the LEGAL authority to call on the Military to put down an insurrection and restore lawful peace and order under 10 U.S. Code § 251 to 254b -- just as President George H.W. Bush had during the LA Riots in 1992.
The next question that we have to ask: Is the 10 U.S. Code § 251 to 254b "Moral?" That depends on the situation... If the Government is violating the National Charter (the Declaration) and the National Bylaws (the Constitution), then enforcement of and obedience to orders given under the auspices of 10 U.S. Code § 251 to 254b may NOT have a moral basis, and Service Members are not obligated to follow them. In the case of the George Floyd riots, the Government was in the process of redressing the injustices involved in that tragedy. So, the violent uprisings that followed were neither justified nor proportional. Therefore, the exercise of 10 U.S. Code § 251 to 254b would certainly have been moral.
Therefore, IF President Trump ordered the US Military to aid in the suppression of a violent insurrection (which he did not) pursuant to 10 U.S. Code § 251 to 254b, then US Service Members would have had to obey these as "Lawful Orders."
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Fastest way to divide your combat power by 2 is a political discussion. Second fastest way is religion. Don’t go there. Not our lane. And resister to vote.
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I find it troublesome that any commissioned officers whose oath is to support and defend the US Constitution has an issue with stating clear and unequiviocal NO to this question.
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You'll get friendly responses or you'll get frank ones. I doubt you'll get them both.
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Yes, if that's what happened which it did not. What you are saying is hypothetical. The English said the same thing to the colonialist and the people took up arms defying English Law. If half the people in this country thought the election was stolen then there's a problem. SCOTUS had the opportunity to hear the evidence but punted and that's on them. Several states bypassed the constitution and put into place illegal voting reforms bypassing their state legislatures. Just yesterday, Wisconsin Supreme Court admitted the way Wisconsin handled Mail-in ballots was illegal. So now what? You have a lot of pissed off people because the courts were too timid to take the case when it would have mattered. States that unconstitutionally bypassed the constitution include Michigan, Pennsylvania, Wisconsin and Virginia; more than enough illegal votes to have turned the election. People have the right to voice their opinion and be heard. January 6th was our chance to let our voices be heard one more time before certification of the votes. Its becoming clear as this investigation proceeds that our FBI may have had a hand in the more aggressive behavior. Remember, only one person was killed (shot) that day; a woman (Trump supporter) who was unarmed. I seem to remember democrats taking over the Wisconsin State Capitol building for 26hrs and no one was arrested; the Supreme Court was invaded during the Kavanagh hearings. The FBI spied on a sitting president and lied about the whole thing and nothing happened. We have cities burned, dozens of people killed over the summer and very few arrests. People who believe as i do know there were shenanigans that went on during the 2020 election and its becoming pretty evident that there's no way in hell the current occupant in the white house got 81 million votes when he couldn't fill a school gymnasium. The 2022 election is right around the corner and the wokies are gonna get Woke.
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