The UNIFORM CODE OF MILITARY JUSTICE on illegal Orders
Under the UCMJ, a service member has a duty to disobey an unlawful order, as the obligation is to obey the Constitution and laws, not any specific person
. An order is considered unlawful if it is illegal, unconstitutional, or a command to commit a crime. Refusing to obey an order that is actually lawful is a violation of Article 92 of the UCMJ.
Conditions for disobeying an order
- The order must be unlawful: An order is unlawful if it violates the Constitution, U.S. laws, or is "patently illegal," such as one that directs the commission of a crime.
- Duty to refuse: A service member not only has the right but the duty to refuse an unlawful order.
- Oaths and the Constitution: The military oath is to the Constitution, which is above any individual commander.
- Consequences of disobedience:
- Refusing a lawful order can lead to punishment, ranging from nonjudicial punishment to a court-martial.
- Failing to refuse an unlawful order can also expose a service member to criminal liability.
How to determine if an order is unlawful
- The lawfulness of an order is ultimately a question of law to be determined by a military judge.
- In many cases, the determination will be made after the fact, during court proceedings.
- An order to commit a crime, such as murder or rape, is an example of a patently illegal order that must be refused.
- Orders are considered lawful unless they are contrary to the Constitution, U.S. laws, or are beyond the authority of the official issuing them.
Important considerations
- A service member cannot refuse an order because it is simply inconvenient or goes against personal beliefs, such as conscience, religion, or philosophy.
- An order is not considered unlawful simply because it is an order from a superior officer. The order must violate a higher law to be considered unlawful.
- A service member who believes an order is unlawful should seek legal advice from a military lawyer.
