Good grief. NO IT CAN'T. You're entitled to your own opinion, but stop making crap up.
The Issue of lawfulness of an order is not an element decided by the court-martial members.Do you understand the difference between matters of law, and matters of fact?U.S. v. Deicher, 61 M.J. 313 (C.A.A.F. 2005) citing U.S. v New, 55 M.J. 95, 105 (C.A.A.F. 2001)
The New decision said, “If “lawfulness” is indeed an “essential element,” the accused in a military trial has a statutory right for the issue to be resolved by the members under Article 51. If, however, “lawfulness” is a question of law, it may be resolved by the military judge. The cases cited in the separate opinion, __ MJ at (6), support the role of the military judge in deciding issues of law, but do not authorize the military judge to withhold “essential elements” from the members.” Contrary to your accusation, no one made crap up.
But you will also notice that the judge is not necessarily allowed to decide the lawfulness of the orders if the key issue is whether the person issuing the orders holds the position to do so. See page 160 at http://usmilitary.about.com/library/pdf/mcm2000.pdf