Unlawful Orders in the Military

This Article is intended to explain unlawful orders in the Military.

A Servicemember can face adverse action for violating a lawful order; doing so is a violation of Article 92 of the UCMJ, and sometimes Article 90 of the UCMJ and Article 91 of the UCMJ.  Often, Servicemembers wonder what are lawful orders and what are unlawful orders.  Article 92 provides the following guidance regarding unlawful orders:

"Lawfulness. A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it."

Article 92 also references subparagraph 16.c of the UCMJ, which states the following:

"Inference of lawfulness. 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 lawfulness of an order is a question of law to be determined by the military judge. [NOTE, the lawfulness of an order can also be decided by a Commander at an Article 15, a General Officer during the GOMOR process, or by a Separation Board/Board of Inquiry]

Authority of issuing officer [or NCO] . The commissioned officer [or NCO] issuing the order must have authority to give such an order. Authorization may be based on law, regulation, custom of the Service, or applicable order to direct, coordinate, or control the duties, activities, health, welfare, morale, or discipline of the accused.

Relationship to military duty. The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service. The order may not, without such a valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order. Disobedience of an order which has for its sole object the attainment of some private end, or which is given for the sole purpose of increasing the penalty for an offense which it is expected the accused may commit, is not punishable under this article.

Relationship to statutory or constitutional rights. The order must not conflict with the statutory or constitutional rights of the person receiving the order.

The order must be directed specifically to the subordinate. Violations of regulations, standing orders or directives, or failure to perform previously established duties are not punishable under this article, but may violate Article 92.

As long as the order is understandable, the form of the order is immaterial, as is the method by which it is transmitted to the accused

The order must be a specific mandate to do or not to do a specific act. An exhortation to “obey the law” or to perform one’s military duty does not constitute an order under this article."

Distinguishing between lawful orders and unlawful orders can be incredibly challenging. Additionally, decisions often have to be made quickly in high pressure situations. If a Servicemember thinks that he/she has received an unlawful order, it is smart to ask the individual who gave the order for clarification.  For example, the Servicemember in question should say something like "Sir/Ma'am, I just want to make sure I understand. Are you ordering me to do _____?"  Sometimes this act of asking a question will give the individual who gave the potential unlawful order time to think twice and reconsider.  If he/she persists, then the Servicemember in question has to make a decision.  If time permits, the Servicemember should consult with an experienced Military Defense Attorney. If time does not permit, then the Servicemember has to use his/her experience and training to make a decision.

A Servicemember who refuses a lawful order is subject to adverse action, such as a letter of concern, letter of reprimand, GOMOR, Article 15, Court-Martial, Separation Board, Board of Inquiry, Referred NCOER, Referred OER, bad evaluation report, and/or other adverse actions.  However, a Servicemember who follows unlawful orders is subject to the same adverse actions if he/she violates the UCMJ. Basically, if the order given is unlawful, then the Servicemember who follows the unlawful order does not automatically escape criminal responsibility. There is a Defense to following unlawful orders which could result in the accused being exonerated. The Defense, from the Military Judges Benchbook, is as follows:

"Obedience to an unlawful order does not necessarily result in criminal responsibility of the person obeying the order. The acts of the accused if done in obedience to an unlawful order are excused and carry no criminal responsibility unless the accused knew that the order was unlawful or unless the order was one which a person of ordinary common sense, under the circumstances, would know to be unlawful."

Lawful vs. Unlawful Orders are often very hard to distinguish. Any Servicemember who is in a situation where he/she feels as though an unlawful order was issued should immediately consult with an experienced Military Defense Attorney. If time does not permit, and a Servicemember faces adverse action for either not following an order or for following an order that ultimately led to another unlawful act, then an experienced Military Defense Attorney should still be consulted.

Following/not following unlawful orders can often result in high-profile cases.  Examples include the My Lai Massacre, The Abu Ghraib Prison Scandal, the 2012 Quran Burnings, the Maywand District Murders, and many more.

This article was written by Attorney Matthew Barry, an experienced Military Defense Attorney who is highly rated by his former clients.

Attorney Barry has offices on the East Coast, West Coast, and the Central United States. He will travel to any installation, worldwide, to represent a Servicemember accused of misconduct. He represents Servicemembers in the Army, Navy, Marine Corps, Air Force, and Coast Guard.

Contact him today for a free consultation.