Kara Sears
In the US military, a servicemember must obey an order from a superior officer if the order is lawful. However, if obeying the order would require committing a crime, the order is unlawful and must be disobeyed. The penalties for violating Articles 90 and 92, which cover disobedience and failure to obey lawful orders, can be severe, including judicial and non-judicial punishments such as reprimands, confinement, and dishonorable discharge. Orders that are vague, overly broad, or intended to harass or humiliate are considered unlawful. While ignorance of the law is generally not an excuse, there may be extenuating circumstances where a soldier's focus on military duties could justify their lack of legal knowledge. Ultimately, the lawfulness of an order is a question to be determined by a military judge, and service members accused of violating lawful orders should seek experienced legal counsel.
| Characteristics | Values |
|---|---|
| Ranks | The person giving the order need not be superior in rank |
| Military purpose | All activities reasonably necessary to accomplish a military mission |
| Private activity | Can include prohibitions on private activity if they relate to safeguarding or promoting the morale, discipline, and usefulness of a unit |
| Personal rights | Should not be an overly broad limitation on a personal right |
| Vague orders | Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful |
| Legal counsel | Service members accused of violating lawful orders should seek experienced legal counsel |
| Military judge | The lawfulness of an order is a question of law to be determined by the military judge |
| Military duty | The order must pertain to military duty |
| Constitutional rights | Must not conflict with statutory or constitutional rights |
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What You'll Learn
Lawful orders must be reasonably specific
In the military, lawful orders must be reasonably specific. This means that the order must be a specific mandate to do or not do a specific act. For example, in the case of United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003), an order "not to converse with civilian workers" in a galley was deemed lawful and not overbroad. On the other hand, an order that is "arbitrary and capricious, overly broad in scope, or imposes an unjust limitation on a personal right" is not lawful.
In the context of the military, Article 92 defines disobeying a direct order as three types of federal article offenses: violations or failures to obey lawful general orders or regulations, failures to obey other lawful orders, and dereliction of duty. It is important to note that the accused must have knowledge of the particular duty, and ineptitude can be a defense in such cases.
When determining the lawfulness of an order, it is crucial to consider the specific circumstances and the military's duty to protect its members' morale, discipline, and usefulness. For instance, regulations restricting loans between service members may be lawful if they are intended to safeguard or promote the unit's discipline and usefulness.
In the context of traffic stops, the law should balance officer safety with individual rights. However, there is a lack of clarity regarding what constitutes a "lawful order," leading to confrontations between individuals with differing views on what is permitted under the law.
Overall, lawful orders in the military must be reasonably specific, clear, and precise, relating to military duty and accomplishing a military mission, while also respecting the statutory and constitutional rights of the individual receiving the order.
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Orders must not conflict with statutory or constitutional rights
Orders that conflict with statutory or constitutional rights are unlawful. This means that an order must not violate the rights of the person receiving it. For example, regulations requiring service members to obtain approval from their commanders before circulating petitions on military installations are lawful, as per Brown v. Glines, 444 U.S. 348 (1979). However, this does not apply to the general circulation of a petition within a military base.
A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful. For instance, in United States v. Moore, 58 M.J. 466 (C.A.A.F. 2003), an order prohibiting conversation with civilian workers in the galley was deemed lawful and not overly broad, given the accused's violation of a policy limiting interaction between civilians and service members.
The form and method of transmission of an order are immaterial, provided the order is understandable and specific to the subordinate. However, the dictates of a person's conscience, religion, or personal philosophy do not excuse disobedience. An order must relate to military duty, encompassing activities necessary to accomplish a military mission or promote unit morale, discipline, and usefulness.
In dereliction of duty cases, the accused must have had knowledge of their particular duty, and ineptitude can serve as a defense. While orders are presumed lawful, counsel may scrutinize them to ensure they do not overly limit personal rights and have a valid military purpose.
Article 92 of the UCMJ, which covers a broad spectrum of disobedience, makes it a crime to fail to obey any lawful general order, regulation, or order from a member of the armed forces, or to be derelict in performing duties. Charges under Article 92 are common, and violations can result in severe judicial and non-judicial punishments, including federal felony convictions.
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Orders must pertain to military duty
In the US military, a servicemember must obey an order from a superior officer if the order is lawful. However, if carrying out the order would involve committing a crime, it is considered unlawful and must be disobeyed. In such cases, servicemembers may be able to prove there was a "lawful or reasonable excuse" for disobeying an order.
The lawfulness of an order is an important issue, but it is not a discrete element of a disobedience offense. A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful.
For example, regulations requiring service members to obtain approval from their commanders before circulating petitions on military installations are lawful. Similarly, regulations establishing a minimum drinking age for service personnel in a command abroad are also legal. A commander may also lawfully order a military member not to consume alcohol if it is reasonably necessary to protect the morale, welfare, and safety of the unit or the accused.
On the other hand, an order to torture a detainee would be considered unlawful. Torture is prohibited by the UN Convention Against Torture, the Army Field Manual, the McCain amendment to the 2006 National Defense Authorization Act, and DoD Directive 3115.09.
In some cases, the legality of an order may be tricky to judge, and a servicemember may make the wrong call. In such situations, it is crucial to seek experienced legal counsel, as the consequences of violating lawful orders can be severe.
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Orders that are vague, overly broad, or intended to harass may be unlawful
Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful. The penalties for violating Articles 90 and 92 can be severe and may result in judicial and non-judicial punishments. These can range from reprimands and extra duties to confinement and dishonourable discharge.
A lawful order must be reasonably specific and not conflict with statutory or constitutional rights. It must pertain to military duty and be understandable. The form of the order is immaterial, and the method of transmission is also not a factor. The order must be a specific mandate to do or not do a specific act.
Determining whether an order is lawful can be challenging, and there is often a fine line between lawful and unlawful orders. For example, an order prohibiting discussions with witnesses during an investigation was deemed lawful, while an order prohibiting the accused from contacting witnesses concerning the charges was unlawful as it interfered with the right to prepare a defence.
In the United States, a service member must obey an order from a superior officer if the order is lawful. However, if carrying out the order would require the commission of a crime, the order is unlawful and must be disobeyed. Service members are required to obey "the lawful orders of his/her superior," and refusal to obey can result in serious consequences.
It is important to note that orders are presumed to be lawful, and the burden of proof for unlawfulness falls on the defendant. If a service member believes an order is unlawful, they should consult with an experienced military defence attorney.
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A lawful order need not come from a superior
In the US military, a service member must obey an order from a superior officer if the order is lawful. However, it is important to note that a lawful order need not always come from a superior. According to Article 92, which defines disobeying a direct order, a person with a status that imposes on the accused a duty to obey the order must give the order. This means that the person giving the order need not necessarily be of a higher rank, but their status must impose a duty to obey.
For example, in the case of United States v. Moore, an order "not to converse with civilian workers" was found to be lawful and not overbroad when given to a service member who had previously violated a policy limiting interaction between civilian employees and military personnel. Similarly, regulations establishing a minimum drinking age for service personnel in a command abroad have been upheld as legal, as in the case of United States v. Manos.
It is worth mentioning that orders must be reasonably specific, not conflict with statutory or constitutional rights, and pertain to military duty to be considered lawful. Vague or overly broad orders, or those intended to harass or humiliate, may be deemed unlawful. Furthermore, a service member is not required to obey an unlawful order, especially if complying would require the commission of a crime.
In certain situations, there may be a “lawful or reasonable excuse" for disobeying a lawful order, as outlined in Section 325. However, the accused must provide sufficient evidence to support this claim. Overall, while it is crucial for service members to obey lawful orders, they also have the responsibility to scrutinize orders and ensure they do not violate statutory or constitutional rights.
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Frequently asked questions
Any person with a status that imposes on the accused a duty to obey the order can give a lawful order. This does not necessarily have to be someone with a superior rank.
A lawful order must be reasonably specific, not conflict with statutory or constitutional rights, and must pertain to military duty. Orders that are vague, overly broad, or intended to harass or humiliate a service member may be considered unlawful.
Violating Articles 90 and 92 of the UCMJ can lead to severe judicial and non-judicial punishments, including reprimands, extra duties, confinement, and dishonorable discharge.
In the US military, a service member must obey an order from a superior officer if the order is lawful. However, if carrying out the order would require the service member to commit a crime, the order is unlawful and must be disobeyed.
