OK

(Crossposted from Blue Hampshire)

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I clearly remember from my Army daze, that I, as an enlisted soldier, was not compelled to follow an unlawful order. Actually to the contrary, it was my duty not to execute an unlawful order.

My Lai should provide some orientation towards my point.

Two tragedies took place in 1968 in Viet Nam.  One was the massacre by United States soldiers of as many as 500 unarmed civilians-- old men, women, children-- in My Lai on the morning of March 16.  The other was the cover-up of that massacre.
...
The second argument of the defense was that Calley was merely following orders: that Captain Ernest Medina had ordered that civilians found in My Lai 4 be killed and was the real villain in the tragedy.
...
After thirteen days of deliberations, the longest in U. S. court-martial history, the jury returned its verdict: guilty of premeditated murder on all specifications.

So I searched for the applicable portion of the Uniform Code of Military Justice (UCMJ). What I found below the fold.

Punitive Articles of the UCMJ

From Rod Powers,

Article 92-Failure to obey order or regulation


Text.

"Any person subject to this chapter who-

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct."

______________________________________________________________
Elements.
(1) Violation of or failure to obey a lawful general order or regulation.
(a) That there was in effect a certain lawful general order or regulation;
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the order or regulation.

(2) Failure to obey other lawful order.
(a) That a member of the armed forces issued a certain lawful order;
(b) That the accused had knowledge of the order;
(c) That the accused had a duty to obey the order; and
(d) That the accused failed to obey the order.

(3) Dereliction in the performance of duties.
(a) That the accused had certain duties;
(b) That the accused knew or reasonably should have known of the duties; and
(c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

Explanation.

(1) Violation of or failure to obey a lawful general order or regulation.
(a) General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:
 (i) an officer having general court-martial jurisdiction;
 (ii) a general or flag officer in command; or
 (iii) a commander superior to (i) or (ii).
(b) A general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed by another officer who is not a general or flag officer.

(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it. See the discussion of lawfulness in paragraph 14c(2)(a).

(d) Knowledge. Knowledge of a general order or regulation need not be alleged or proved, as knowledge is not an element of this offense and a lack of knowledge does not constitute a defense.
(e) Enforceability. Not all provisions in general orders or regulations can be enforced under Article 92(1). Regulations which only supply general guide-lines or advice for conducting military functions may not be enforceable under Article 92(1).

(2) Violation of or failure to obey other lawful order.
(a) Scope. Article 92(2) includes all other lawful orders which may be issued by a member of the armed forces, violations of which are not chargeable under Article 90, 91, or 92(1). It includes the violation of written regulations which are not general regulations. See also subparagraph (1)(e) above as applicable.
(b) Knowledge. In order to be guilty of this offense, a person must have had actual knowledge of the order or regulation. Knowledge of the order may be proved by circumstantial evidence.
(c) Duty to obey order.
 (i) From a superior. A member of one armed force who is senior in rank to a member of another armed force is the superior of that member with authority to issue orders which that member has a duty to obey under the same circumstances as a commissioned officer of one armed force is the superior commissioned officer of a member of an-other armed force for the purposes of Articles 89, and 90. See paragraph 13c(1).
 (ii) From one not a superior. Failure to obey the lawful order of one not a superior is an offense under Article 92(2), provided the accused had a duty to obey the order, such as one issued by a sentinel or a member of the armed forces police. See paragraph 15b(2), if the order was issued by a warrant, noncommissioned, or petty officer in the execution of office.

(3) Dereliction in the performance of duties.
(a) Duty. A duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.
(b) Knowledge. Actual knowledge of duties may be proved by circumstantial evidence. Actual knowledge need not be shown if the individual reasonably should have known of the duties. This may be demonstrated by regulations, training or operating manuals, customs of the service, academic literature or testimony, testimony of persons who have held similar or superior positions, or similar evidence.
(c) Derelict. A person is derelict in the performance of duties when that person willfully or negligently fails to perform that person's duties or when that person performs them in a culpably inefficient manner. "Willfully" means intentionally. I t refers to the doing of an act knowingly and purposely, specifically intending the natural and probable consequences of the act. "Negligently" means an act or omission of a person who is under a duty to use due care which exhibits a lack of that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances. "Culpable inefficiency" is inefficiency for which there is no reasonable or just excuse.
(d) Ineptitude. A person is not derelict in the performance of duties if the failure to perform those duties is caused by ineptitude rather than by willfulness, negligence, or culpable inefficiency, and may not be charged under this article, or otherwise punished. For example, a recruit who has tried earnestly during rifle training and throughout record firing is not derelict in the performance of duties if the recruit fails to qualify with the weapon.

It is clear that the Telcos did not take the oath of enlistment. However, the Bush/Cheney rationale here is fundamentally that "all bets are off in war."

So we either hold our civilian wing of the armed forces to the same standard as the military or we start letting out those "poor souls" jailed for their war crimes at Abu Ghraib, ect.

Where do we draw the line?  

                           
       
                           
                           

Originally posted to SGS on Sun Jun 22, 2008 at 07:59 PM PDT.

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