You need to brush up on the history of the Nuremburg Trials that took place immediately after WWII, and the impact it had on the Military Code of Justice. Many of the Nazi soldiers on trial for war crimes used the defense of "I was only following orders." That defense was not acceptable as soldiers have a sworn duty to uphold and obey the Law, whether civil or military, and to follow the Military Codes of Conduct and Rules of Engagement. Soldiers have a sworn duty to NOT follow any orders issued from a superior when those orders would require the commission of an illegal act, or an act that runs counter to the Codes or the Rules. Some might even say that soldiers have a moral authority to NOT follow unconscionable, unethical, or reprehensible orders.
The same duty to NOT obey orders applies in situations where orders are issued by a superior who lacks the legal, military, and even moral authority to issue them.
Normally, military personnel who fail to obey the lawful orders of their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) makes it a crime for a military member to WILLFULLY disobey a superior commissioned officer. Article 91 makes it a crime to WILLFULLY disobey a superior Noncommissioned or Warrant Officer. Article 92 makes it a crime to disobey any lawful order (the disobedience does not have to be "willful" under this article).
In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.
Seems like pretty good motivation to obey any order you're given, right? WRONG!! These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it.
Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal.
The first recorded case of a United States Military officer using the "I was only following orders" defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound to any French Port. However, when President John Adams wrote the order to authorize the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President's instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.
The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution.
But, what about following the orders of someone who is not a legal superior, such as the Commander-in-Chief?
A scanario such as this are part and parcel to decisions rendered in cases where one party in a joint agreement does not have the statutory authority to carry out an action, such as a minor signing a contract where minors are not permiotted to enter into contracts.
If a party is not legally bound or authorized to enter into an agreement, any agreement entered into is rendered null and void. Similarly, if the party does not legally have the statutory authority to enter into an agreement with a second party, that agreement is also rendered null and void.
It is, therefore, the duty of military personnel to judge for themselves the legality of entering into an agreement with another person, which, in this case, is an agreement to follow a direct order from a superior who is not legally authorized to issue that order, and the correct course of action for that person is to refuse to enter into what amounts to an illegal agreement and an illegal action stemming from that agreement.
Rather than get into trouble for disobeying a command that carries no weight of military law, but, in fact, the act of refusing to obey a command for which he or she is not legally bound to obey, does comply with military law.
Bottom Line: if a soldier's superior cannot legally issue orders, or the superior's orders carry no force of law, or run counter to Military Codes of Conduct, Rules of Engagement, or what is considered by civilized society to be universally unconscionable, unethical, or reprehensible, then the correct course of action is for the soldier to disobey them.
Any folks in the military care to weigh in on this discussion?
Just guessing, but sounds reasonable. Being a military man means never having to have to say, "I am sorry, but I just have to dis-obey that order, sir!"
Except for the exceptions, of course, which are written down somewhere.
Just my contribution towards continuity of command.
Travis, wanna weigh in on this one?
You said — “But, what about following the orders of someone who is not a legal superior, such as the Commander-in-Chief?”
Right there is the problem with all of what you’re saying.
This is speculation, not based upon a court of law deciding and/or affirming that this is the case. If all soldiers get to say this, based upon speculation with nothing being proven (you can say “yet”, if you wish...) in a court of law, it would be chaos in the military if that kind of “defense” was allowed for those military people to do so...
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Now, having said that, there will be all sorts of people who will say, “It’s been proven!” (at least to their satisfaction, it has been). The problem is, it hasn’t been proven in the way that our society and system demands it be proven. It’s still an accusation and speculative, until it gets through the entire process of the judicial system. Until then, it’s not proven.
And so, until then, lawful orders can be issued by the Commander in Chief and there is not a defense for disobeying them (or in the chain of command) based upon the “allegation” that “he is not legally Commander in Chief”.
This is the kind of thinking that promotes the label (from other conservatives) — the Obama Derangement Syndrome — to think that one can base a “defense” on something that is not proven (in that court of law, and is upheld) and is still speculation.
The first recorded case of a United States Military officer using the “I was only following orders” defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound to any French Port. However, when President John Adams wrote the order to authorize the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President’s instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders “act at their own peril” when obeying presidential orders when such orders are illegal.
I find the similarities of analogies to the instant case of “The Flying Elephant” to the case of the “Flying Fish”
interesting.
A few good cases citing the Flying Fish:
COOPER, 12 S. Ct. 453, 143 U.S. 472 (U.S. 02/29/1892)
YOUNGSTOWN SHEET & TUBE CO. ET AL. v. SAWYER, 72 S. Ct. 863, 343 U.S. 579 (U.S. 06/02/1952)
C. J. HENDRY CO. ET AL. v. MOORE ET AL., 63 S. Ct. 499, 318 U.S. 133 (U.S. 02/08/1943)