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. 

Basic training graduation ceremony parade, National Infantry Museum, Ft. Benning/Columbus Basic training class graduation ceremony parade, June, 2009, National Infantry Museum, Ft. Benning/Columbus, GA 
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One Response to “WHEN IS AN ORDER UNLAWFUL?”

  1. Bob Cox Says:

    Dick, I’m a little late finding your blog. I saw a post on Facebook about it.

    I was working in Columbus at AHP Medical Gloves at the time of Lt. Calley’s trial. I recall there were many army wives at the factory and a few of them penciled a petition saying Calley should be set free. One of them handed it to me and said, “Sign This.” I told them that was impossible because I thought he was guilty of shooting Senior Citizens , children, women and non- combatants. This enraged many people and someone said, “Thats the way you damned Mexicans think.” Actually I’m Welsh Irish descent, but I lived off and on in Mexico and in fact am now in Mexico. In the heat and ignorance of the moment, and I’m sure the ladies there most of whom were married to soldiers, felt that their husbands could be in Calley’s shoes. They handed the petition to a Japanese girl who I knew had been in Hiroshima when the A-bomb was dropped and told her, “Sign this.” I told her, “Dont sign it Aiko. The next petition will be one saying lets drop an A-bomb on Hiroshima. “But this might happen to my husband,” she said. I remarked, “Somehow I can’t see your husband machine gunning 6-month-old children in a ditch.”
    On another note, I was in the ROTC at Jordan High. One day the Captain was giving a talk on types of ammo used in M1′s in the basement firing range. Black tips are armor-piercing; red tip bullets are incendiaries. You see a grass shack on a hill, you fire a few rounds into it and set it on fire, the enemy runs out and you shoot them. I asked, “And if the people fleeing are civilians?” He said, “Shoot them anyway, its good target practice.” I remarked, “Isn’t that against Geneva Convention rules?” He glared at me and said, “You’re a Goddam Commie arent you?” That was the beginning of the end of my military career at Jordan. After that I tried to set a Guiness World record of getting the most demerits. In two months I was taking Study Hall instead of ROTC.
    Enjoy your articles Dick. It’s taking me awhile to go through older posts.

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