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Why knowing whether an order is lawful or unlawful is important

On Behalf of | Jun 21, 2024 | UCMJ Defense

A key aspect of military service is following the orders of superiors. “Good order and discipline” are necessary for all branches of the military to function. As such, service members take a pledge to “obey the orders of the President of the United States and the orders of the officers appointed over me….”

Yet, this reality assumes that those who have reached a position where they lead others will only give lawful orders, which is not always the case. That’s why the Uniform Code of Military Justice (UCMJ) specifies that servicemembers are required to obey “the lawful orders of his/her superior.”

Servicemembers can’t just refuse orders with which they disagree

It’s crucial to understand that an order with which a servicemember disagrees isn’t necessarily unlawful. Servicemembers often engage in missions and even entire wars that they believe are wrong. That doesn’t make them illegal. A servicemember can risk legal jeopardy if they make an incorrect decision about whether to obey a questionable order regardless of what they do.

It’s possible to face court-martial for refusing to obey a lawful order – particularly if it endangers others, as may be the case in an armed conflict. However, a servicemember can also be court-martialed for obeying an unlawful order – for example, one that involves torture or the targeting of civilians.

An unlawful order that was determined to be murder

The most famous example of an unlawful order, at least in fairly recent U.S. history, is the My Lai Massacre. It occurred back in 1968 during the Vietnam War. Army Lt. William Calley ordered his platoon to gather and kill hundreds of unarmed Vietnamese civilians of all ages. Some of Calley’s men followed his order, while others refused.

Calley and those who followed his order were court-martialed. Although he claimed to be following an order from his own superior, the court convicted him of first-degree murder. In its ruling, the court said that killing civilians who were “demonstrably unable to defend themselves” is “palpably illegal.”

Many orders that could cause a servicemember pause are not so obviously illegal. Even if they are, there may be other circumstances where someone feels required or even forced to obey them. Whatever the circumstances, anyone facing serious military discipline, up to and including court-martial, needs experienced legal guidance to help protect their rights and their future.