“An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The accused has the burden to establish that the order is not lawful. Hughey, 46 M.J. at 154; United States v. Smith, 21 U.S.C.M.A. 231, 234, 45 C.M.R. 5, 8 (1972). Indeed, a professional military institution could not otherwise function without a service member having a duty to obey lawful orders.
United States v. Kisala, 64 M.J. 50, 52, n.5 (C.A.A.F. 2006).
A piece at JustSecurity (WTR) begins:
A proposal to bring back waterboarding and a “hell of a lot worse.” The possible suggestion that members of the military should intentionally target terrorists’ civilian family members. A threat to rain “fire and fury” on North Korea. With comments like these, President Donald Trump has turned the responsibility of members of the military to obey superior orders – long an object of study for scholars of military law – into the subject of popular headlines and editorials. What happens, commentators have asked, “if President Trump orders Secretary of Defense Mattis to do something deeply unwise?” Would the military actually carry out such orders?
The piece recommends the following article worth-the-read.
Christopher Fonzone, What the Military Law of Obedience Does (and Doesn’t) Do. Issue Brief, March 2018, American Constitution Society. The writer begins:
The responsibility of the military to obey orders from superiors surprisingly became a hot topic during the 2016 presidential campaign, when then-candidate Trump proposed to bring back waterboarding and a “hell of a lot worse” and appeared to suggest targeting intentionally the civilian family members of terrorists. These comments prompted a swift and severe response, with a number of former officials – including, most prominently, former Central Intelligence Agency and National Security Agency Director Michael Hayden – making clear that they would expect the military to disobey such illegal orders. Trump responded to the uproar by stating that he would “not order a military officer to disobey the law,” and he has since signaled that he is willing to defer to his Cabinet and cast those proposals aside. Although the specific controversies that arose during the campaign have seemingly passed, more recent events have again returned to the public eye questions of when members of the military must obey superior orders.