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| Prof. John C. Dehn |
Prof.
John C. Dehn of Loyola University Chicago School of Law thinks "mostly not," according to his scholarly yet highly readable article
Why a President Cannot Authorize the Military to Violate (Most of) the Law of War, 59 Wm. & Mary L. Rev. 813 (2018). He concludes:
There are certainly many pragmatic reasons for the President and military to comply with the law of war. Recent history demonstrates that these pragmatic considerations do not always carry the day. Public statements by the current President suggest that they may not do so in the future. Although the Department of Defense states that soldiers must “comply with the law of war in good faith” and refuse to follow “illegal orders to commit violations of the law of war,” it has not been clear whether this includes all law of war violations, or whether a President possesses constitutional authority to issue a “controlling executive act” ordering or authorizing the military to violate the law of war.
This Article clarified how the UCMJ broadly implements the law of war and authorizes criminal punishment for most violations of it. A President may only authorize law of war violations that do not entail or result in a UCMJ offense, or potentially those that fall within the extraordinarily narrow scope of reprisals still permitted by the law of war. Unless Congress is persuaded to change the law of war component of [UCMJ] Article 18, it seems clear that a President lacks constitutional authority to authorize the military to violate (most of) the law of war.
Congratulations, Prof. Dehn.
Are you asking normatively or positively? In his excellent article, Professor Dehn proves that two legal consequences do not follow when the President does so: first, that his subordinates subject to UCMJ are not immunized ex proprio vigore from court martial prosecution when they act obediently to his will, and second, that federal courts may refuse their cooperation in any case or controversy that ensues. On the other hand, there can be no court martial without a convening order, and it is not inconceivable that some Presidentially authorized violation of the law of war could go unprosecuted for want of the will to do so. Moreover, the deterrence embodied in Article 18 is attenuated in these circumstances by the broad power of the President to pardon.
ReplyDeleteDear John Paul Jones,
ReplyDeleteYour points are well taken and thanks for the kind words about the article. While it is true that there may be no court-martial without a convening order, it is also true that right-minded soldiers/airmen/sailors/marines need clarity regarding the orders they may and should disobey. I hope this article clarifies that they may rely on the judgments of their superiors to a great extent, but must refuse to obey manifestly unlawful orders no matter their source. From my experiences, I believe there has been substantial uncertainty on this point since September 11, 2001 and that this clarity was needed (as well as the theoretical relationship between the punitive articles and the law of war).
There will always be those who are willing to follow unlawful orders and others willing to excuse them for doing so, particularly if the order were issued by a president. It is difficult to address that, particularly if one credits the idea of Jefferson and Lincoln (traceable to Hobbes, I believe) that one may sometimes violate the law to preserve the nation, so long as he or she informs Congress and Congress ratifies the decision. I wrote about that topic in a 2011 Temple Law Review article.