Another must-read from Dan Maurer

Prof. Dan Maurer (Ohio Northern University) writes on Lawfare: Governing Military Norm-Defiance in a Norm-Defying Presidency. Excerpt:

The public perception of a rigidly hierarchical military obeying orders mechanistically from the national command authority during war is a well-entrenched portrayal. Within the military profession, however, the issue of following orders is considerably more nuanced.

A situation in which a service member has reason to disobey an order is not uncommon and, under some circumstances, expected. In fact, the military justice system provides an affirmative defense to what normally would be the crime of disobeying orders. Rule for Courts-Martial 916(d) states that acting “pursuant to orders” is a legitimate defense against charged misconduct, “unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful” (emphasis added). This means, in practice, an affirmative duty to obey only lawful orders. Rule 916(d) precludes a “just following orders” defense when charged with, for example, killing unarmed prisoners of war—an offense all service members are trained to know violates the laws of war (in this case, a grave breach of the Third Geneva Convention).

But this duty and its corollary affirmative defense are severely qualified. There is a cliché in the armed forces: The “military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral.” Even military leadership doctrine promotes this: “Army forces reject and report illegal, unethical, or immoral orders or actions.” But this is only partially true. An order could be unlawful, unethical, and immoral all in one. In such a case, however, the only legally permissible grounds for disobeying it is the order’s illegality, not its unmooring from ethics and morals. An order could therefore be lawful, but still unethical or immoral. In such a case, there are no legal grounds for disobeying it, though doing so may exemplify “moral courage.” In other words, there is no duty to disobey (and no affirmative defense against) an unethical or immoral command from a civilian authority, as judged by the military recipient of the order.