The forgotten half of the duty to disobey: Knowing illegality

I have studied and taught the law of superior orders in military criminal law for the past five years. When first encountering it, I remember being surprised at its complexity—a complexity largely unknown to the public, or even to most JAGs with whom I discussed it. Most seemed to know that there were lawful orders and unlawful orders, and that this distinction mattered. But few knew much beyond this. The statements provided by some of the six lawmakers in the now-infamous “Don’t give up the ship” video reflect this, with Representative Chris Deluzio erroneously claiming that servicemembers “must” disobey unlawful orders.

What is conceptually elusive to most observers, and to Representative Deluzio, is that there is a legal “gray” zone in which an unlawful order can be either disobeyed or obeyed, with both options resulting in a criminal law defense. This is the zone of orders that are apparently lawful but technically unlawful; another way of describing this is the zone of orders that do not rise to the level of patently unlawful orders. Here, obedience results in a criminal law excuse for the conduct commanded, while disobedience results in acquittal at trial once a judge has adjudicated that the order was unlawful. Thus, it is not true that “unlawful” orders must be disobeyed. This is only true of patently unlawful orders (as well as another category to be discussed below). In the wake of the video’s released, critical reaction has centered on this error.

Public attention on the Caribbean boat strikes at times focuses, appropriately, on this question: did the orders rise to the level of manifest or patent illegality, as in the case of the My Lai Massacre?

While I am glad that the public conversation is now accounting for the nuance between patently unlawful orders and technically unlawful orders, I have noticed that there is something missing: The duty to disobey applies even to non-patently unlawful orders if the defendant (I will use this term instead of “accused”) knew the orders were unlawful. As stated in the canonical case, United States v. Calley:


"The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."

United States v. Calley, 48 C.M.R. 19, 27 (1973) (emphasis added). This is appropriate for a mistake-of-law-based excuse in criminal law: There can be no mistake, after all, if the defendant knows the order is unlawful. See Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 224 (1982).

One can forgive most commentators for forgetting about this half of the duty to disobey: There are no reported military cases in which a court found that a defendant possessed subjective knowledge of orders’ illegality. It is unlikely, after all, that those who are on the receiving end of an order—lower-level officers and enlisted—would be privy to the determination of an order’s lawfulness vel non.

There is one class of servicemembers, though, who are uniquely privileged on this count: military lawyers, and especially military lawyers who are involved in the decision-making leading up to the issuance of the order. These lawyers are able to witness and participate in the deliberation that results in an unlawful order, including any willful distortions of fact or law. Since they are trained in law, they will know, more than the lower-level servicemember, if an order is technically unlawful even though it is not patently unlawful. In such a case, military lawyers have a duty to disobey that order and have a duty to not facilitate its promulgation. Since military lawyers will more likely possess actual knowledge regarding an order’s illegality, they will more often be held to the higher standard that is imposed on most others only in cases of patently unlawful orders.
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It is said that the military “‘is the executive arm’ whose ‘law is that of obedience,’” Parker v. Levy, 417 U.S. 733, 751 (1974), but this cannot be true with respect to military lawyers. No lawyer, even a lawyer in uniform, can be permitted to turn off his or her brain when it spots illegality. In doing so, she would cease to be a lawyer in any real sense. In recognizing the duty to disobey orders one knows to be unlawful, the law reflects this higher burden.