Dunlap fires back at The Ethicists

11/3/2024

sites.duke.edu/lawfire/2024/11/02/yes-the-law-of-military-orders-matters-and-heres-how/

Yes, the law of military orders matters, and here’s howby Charlie Dunlap, J.D. · 2 November 2024

"Military members with questions about the law of military orders should address them – now—with their serving judge advocate. Taking advice from op-ed writers (especially those who are not lawyers) about topics that necessarily involve the law of military orders could end badly…very badly.
Others may examine the op-eds/essays and dismiss them as simply partisan political rhetoric. They may be that, but when rhetoric also carries the potential to blur the law of military orders, it becomes a matter of real concern."

8 Comments

Anon

11/3/2024 10:57:45

Don't "serving judge advocates" advise COMMANDERS who are issuing the orders, and not individual soldiers? Who should a soldier approach? TDS? They won't talk until there is a criminal case. Legal aid? They do wills.

Bill

11/8/2024 17:44:12

Servicemembers can get legal advice from the unit's
advising judge advocates if the question is about performing official duties. For example, if the chaplain wants to run a holiday party for the unit, he can of course ask the unit's JA about the ethical guidelines. And if the chaplain's assistant is worried that the chaplain is asking him to run an unethical holiday party, then the assistant can also ask the same JA.

Allan

11/4/2024 11:21:37

This sort of begs the question: Have there been instances, other than Lt. Calley, where a subordinate has been found guilty of following an illegal order, or been acquitted because the order they were given was illegal? It seems to me that such instances, if there are any, would be extremely rare.

Allan

11/4/2024 11:24:07

This should be limited to US military law. Of course, WWII (and, perhaps, other conflicts) provided examples of findings of guilt for following illegal orders.

Donald G Rehkopf

11/4/2024 11:40:59

May I commend an article by then CPT Fred Borch, "The Lawfulness of Military Orders," 1986 Army Law. 47 (1986).

Donald G Rehkopf

11/4/2024 14:24:47

ERRATA: The Borch article is in the December 1986, edition at 47.

Cloudesley Shovell

11/5/2024 09:54:39

The larger context is the use of the US military in what is essentially domestic law enforcement, a role for which the vast majority of servicemembers have utterly no training, whether active duty, reserves, or National Guard. Using military personnel in such roles seems unwise.

Consider the Kent State shootings. 8 of the Guardsmen were put on trial in federal court (not at court-martial) for criminal civil rights violations, though all were acquitted on a directed verdict at the close of the government's case. Civil suits later went to trial, with verdicts for the defendants overturned on appeal; the State of Ohio ultimately settled the case.

While lawfulness of orders was not at issue in the criminal trial, the larger issue remains. The Ohio National Guard put a bunch of troops not trained in handling civil disturbances into a volatile situation (the Kent State ROTC building had been burned down just days prior) for which they had little or no training, and armed them with rifles, shotguns, bayonets, and tear gas. It's not too surprising that tensions bubbled over and shots were fired.

Anyhoo, how do you think Corporal Schmuckatelli from the Anystate Guard is going to feel about facing a crowd of demonstrators with about 10 minutes of training? Arguments about the lawfulness of orders are fun for lawyers (That Borch article was an interesting read, thanks Mr. Rehkopf. And for commenter Allan-read the article. Yes, cases have been tossed because orders were illegal), but how's that Corporal going to react when faced with the prospect of shooting his neighbor?

Fun fact--just five days after the shootings, there were huge demonstrations in Washington DC. Consider the recollections of Ray Price, Pres. Nixon's chief speechwriter: "The city was an armed camp. The mobs were smashing windows, slashing tires, dragging parked cars into intersections, even throwing bedsprings off overpasses into the traffic down below. This was the quote, student protest. That's not student protest, that's civil war." President Nixon was moved to Camp David for two days for his own protection. Nixon's special counsel, Chuck Colson, recalled: "The 82nd Airborne was in the basement of the executive office building, so I went down just to talk to some of the guys and walk among them, and they're lying on the floor leaning on their packs and their helmets and their cartridge belts and their rifles cocked and you're thinking, 'This can't be the United States of America. This is not the greatest free democracy in the world. This is a nation at war with itself."

Food for thought.

Kind regards,
CS

11/13/2024 19:01:56

Aaand we are going to have a talk show host making the decisions.

What could go wrong? 🤔

CAAFlog

Dunlap fires back at The Ethicists

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