WHEN IS AN ORDER UNLAWFUL?
You are a young lieutenant.
You are ordered to take out a machine-gun emplacement on a hill.
You lead your men up the hill to the emplacement.
The enemy has lined up women and children in front of the machine gun. You decide you will not shoot the innocent civilians.
When you get back to your superior officer, he tells you that you have flunked the test.
That’s a true story, told to me by my friend, retired Lt. Col. John Nix, who served as an attorney in the Judge Advocate General’s Corps. He was that young lieutenant – well, he was actually an R.O.T.C cadet pretending to be a lieutenant for that exercise. He was informed by his instructor that it is a lawful order to shoot innocent civilians if they block your target.
Naturally, this conversation was triggered by the story about the apology for his role in the My Lai massacre by former Army Lt. William Calley. ” The difference,” he said, “is that you could not say herding innocent civilians into a ditch and killing them was removing shields that were in front of a target.”
Calley’s defense all along has been that he was following orders. That was denied by his superior officer. If Calley’s assertion had been determined right, he would still have had the problem of following an unlawful order.
John Nix says whether an order is lawful or not can end up in a courtroom dispute. He warns that if a soldier decides not to follow one, he had better be right because the consequences can be dire. However, the consequences of following an illegal order can also be dire.
According to About.com, the Manual for Courts-Martial says, “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.“
Who decides whether an order is lawful or not? It’s certainly not the soldier who decided not to follow the order. About.com puts it this way: “Ultimately, it’s not whether or not the military member thinks the order is illegal or unlawful, it’s whether military superiors (and courts) think the order was illegal or unlawful.”
Wonder how much, if any, training about whether an order is legal or not is given to the average soldier. I never got any. When I was in basic training I was told just how horrible my life could be if I disobeyed an order. Nobody ever said, that I can remember, that I didn’t have to obey an unlawful order. Maybe it’s different now. I took basic training fifty-five years ago.