Apparently neither does the Constitution even though all law is subordinate to it. I don't have a lot of faith in Driscoll's reasoning as can be demonstrated in the quote below.
"The defense submitted a memorandum outlining the concept of chain of command, showing that the president is at the top of the chain, showing that the Constitution requires the president to be a natural born citizen and stating that soldiers must disobey 'illegal orders,'" Driscoll continued. "There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed."
Instead, he said, the "law of lawfulness of orders" should prevail.
So let's think about this for a minute. Lakin argues that his orders are unconstitutional and therefore are illegal. Driscoll then says that there is no discussion of what constitutes an illegal order and so all orders should be presumed lawful. Isn't that line of reasoning tantamount to saying that you must follow every order even if it is illegal? Under Driscoll's reasoning there is effectively no such thing as an illegal order because no one has ever discussed what constitutes one. (By the way isn't discussing what constitutes an illegal order the job of the court in this case).
Let's follow Driscoll's reasoning to its conclusion: what constitutes an illegal order should never be discussed, because the only way to discuss it in court is to disobey an order. If you disobey an order to challenge its validity in court, then the court can not allow you to defend yourself, because the court doesn't know what constitutes a legal order. This effectively makes all illegal orders unchallengable and consequently, all illegal orders must be presumed valid and can never be challenged in court because the court will never take a stand on what constitutes an illegal order. Under this reasoning, there is de facto no such thing as an illegal order. I guess that the powers that be want to make sure that no one ever gets a chance to define in court what constitutes an illegal order or people may actually be inclined to keep their oath by disobeying unlawful orders.
“Let’s follow Driscoll’s reasoning to its conclusion: what constitutes an illegal order should never be discussed, because the only way to discuss it in court is to disobey an order. If you disobey an order to challenge its validity in court, then the court can not allow you to defend yourself, because the court doesn’t know what constitutes a legal order. This effectively makes all illegal orders unchallengable and consequently, all illegal orders must be presumed valid and can never be challenged in court because the court will never take a stand on what constitutes an illegal order. Under this reasoning, there is de facto no such thing as an illegal order. I guess that the powers that be want to make sure that no one ever gets a chance to define in court what constitutes an illegal order or people may actually be inclined to keep their oath by disobeying unlawful orders.”
Exactly!
“Driscoll then says that there is no discussion of what constitutes an illegal order and so all orders should be presumed lawful.”
Nuremberg proved that idea to be FALSE...