Sometimes, there are topics that you just cannot do justice in one diary. This is not one of those topics.
Sometimes, there are simply people who cannot comprehend a topic, the facts presented about the topic, and the gist of the issue. This is one those times.
So, off we go...
In my first diary on this issue, I brought out how our military members are only, by the Uniform Code of Military Justice, required to obey lawful orders. I cited the three Articles of the UCMJ (Article 90, 91, and 92). I gave the historical context of how it occurred that military members are only required to follow lawful orders. Somehow, there was a lot of confusion in exactly what I was saying.
From now on, I'm going to write "Diaries for Dummies".
The first case I cited, U.S. vs Bracey, showed how even though the individual was charged with numerous offenses, he was still only sentenced to:
Appellant was sentenced to a bad-conduct discharge, six months' confinement, forfeiture of $630.00 pay per month for six months, and reduction to the lowest enlisted grade.
And, I then contrasted that to SPC Graner, who by following an illegal order at Abu Ghraib, was sentenced to:
The jury of 10 officers and enlisted men, all of whom had served in Iraq or Afghanistan, sentenced Graner on Jan. 15, 2004, to 10 years in prison (five less than the maximum possible) and to reduction in rank to private, dishonorable discharge and forfeiture of pay and allowances.
I brought out U.S. vs Bracey to show that in many cases there isn't simply ONE charge leveled, ie, failure to obey, but, other charges as well. Also, in this case, the order Bracey disobeyed wasn't itself unlawful (as far as I can determine), but, by contrasting the two cases, I made the point that if a person was given the option between disobeying an order, or, following an illegal order, they were truly making the decision between 6 months confinement and 10 years of prison. This point was lost on some.
When I brought out in the previous diary the Reserve unit in Iraq who refused to go out on convoy, the reason they refused to go out on convoy were:
- Vehicles were unarmored.
- Six of their trucks were scheduled to be removed from service.
- None of their vehicles could go faster than 40 m.p.h.
- The platoon had been sent out earlier that day in a 40year-old truck that broke down before it even left the base.
- The convoy route was through frequently ambushed areas.
Was the order to do this convoy unlawful? No. In fact, I never said it was unlawful; I said it was unsafe. But, some people couldn't understand that an unsafe order is different from an unlawful order.
The military's initial report on the incident stated that the soldiers "raised some valid concerns" about the convoy mission. The commanding general ordered an inspection of the vehicles as well as an investigation to determine whether any of the soldiers violated the Uniform Code of Military Justice.
As pointed out in the previous diary, none of the soldiers were courtmartialed. The soldiers had a valid concerns. The soldiers received "bad boy" letters and after standing down for maintenance were returned to duty. But, in this case, each of the soldiers would probably have received worse punishment if they had not immediately notified families of the circumstances and asked their families to contact Congress. Why did these members specifically ask families to contact Congress and why is it significant?
When a military member gets Congress involved (whether it is simply a Senator or Representative or Committee), the military leadership goes straight into "oh shit" mode. Military commanders fear a "congressional inquiry" more than anything because that means somebody who isn't part of the system is now looking into what they are doing. In the above case with the Reserve unit, what would have come out, or did, in the inquiry is the deplorable conditions of the equipment and extreme conditions that these soldiers were being ordered to work under which then reflects right back onto the leadership. So, the leadership, with all the media attention, slapped these soldiers on the wrist and then did what they were supposed to do in the first place.
I wrote in my previous diary:
In the case of disobeying an order, as I've shown, the most a person could reasonably expect is 6 month confinement and discharge from the military. The alternative is possibly facing serious time in Leavenworth, KS, and/or injury/death. Which one would you choose if you were given that choice?
Again, for the dummies, I state "in the case of disobeying AN order", not "in the case of disobeying an UNLAWFUL order", but, some people just cannot read and comprehend the English language.
I wrote in my previous diary:
But, we can put this talking point to bed right now... no, they don't "have" to follow orders... and if they are stupid enough to follow the unlawful or unsafe orders given to them they accept the consequences of that decision.
Again, I made the point that military members didn't merely "have" to just "follow orders". That if the person was stupid enough to follow an unlawful or unsafe (again, for the dummies, I didn't state an unsafe order was automatically an unlawful one... that is why the word "OR" was there) order, they could accept the consequences.
But, some people just don't get a concept, cannot read, and simply don't comprehend the English language.
So, here I am, revisiting an issue that I shouldn't have to revisit.
One of the most famous cases where the system worked as designed was the My Lai massacre:
On March 16, 1968 the angry and frustrated men of Charlie Company, 11th Brigade, Americal Division entered the Vietnamese village of My Lai. "This is what you've been waiting for -- search and destroy -- and you've got it," said their superior officers. A short time later the killing began. When news of the atrocities surfaced, it sent shockwaves through the U.S. political establishment, the military's chain of command, and an already divided American public.
The soldiers at My Lai were under the command of Lt. William Calley:
My Lai lay in the South Vietnamese district of Son My, a heavily mined area where the Vietcong were deeply entrenched. Numerous members of Charlie Company had been maimed or killed in the area during the preceding weeks. The agitated troops, under the command of Lt. William Calley, entered the village poised for engagement with their elusive enemy.
Lt. Calley was courtmartialed for the massacre:
At his trial, Calley testified that he was ordered by Captain Ernest Medina to kill everyone in the village of My Lai. Still, there was only enough photographic and recorded evidence to convict Calley, alone, of murder. He was sentenced to life in prison, but was released in 1974, following many appeals. After being issued a dishonorable discharge, Calley entered the insurance business.
As I brought out in my previous diary on this subject, "I was simply following orders" is not a defense. Lt. Calley was in charge of the mission and it was Lt. Calley's responsibility for the conduct of his troops. So, why wasn't EVERY soldier at My Lai prosecuted if "I was just following orders" isn't a defense? Lt. Calley commanded a Company at My Lai. A Company can be 62-190 soldiers in size. The military isn't about to courtmartial an entire Company, especially in a time of war. In this instance, the one man who was responsible for the actions of his company was courtmartialed.
The question is, and has been, at what point is the order deemed to be unlawful?
In the case of U.S. vs Keenan, which I brought out in my first diary, the Military Court of Appeals held:
"the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal."
Colonel Ann Wright (Ret), in writing about Lt. Watada's refusal to deploy to Iraq, points out:
Refusing to obey an illegal order is a time-honored tradition in the U.S. military, but that refusal carries incredible risk. If the order is found by a military board of inquiry to be lawful, then the soldier will be brought before a military court for trial.
What is created here is a gap between the time that the order is given and when a military board of inquiry deems the order to have been lawful or not. But, the service member must make the call at the time the order is issued whether it is lawful or not.
In between the time the order is given and a military board deems the order to have been unlawful, the soldier more than likely will have been punished by their superior for failing to obey. The Manual for Courts Martial states:
"An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."
Now, I don't claim to be a military lawyer (or "barracks lawyer" as one person commented in the first diary) and I don't claim to know what the timeline is before a military board is convened. That was not my point in my previous diary, nor, in this diary. The point is, and has been, that a military member does not, carte blanch, have to "follow orders"; they must only follow lawful orders.
Why that concept, again for the dummies who have forgotten by this time, that military members are only required to follow a lawful order seems to be too hard to understand for some I don't know, but, it is.
It is hard when writing a diary to try and anticipate every question that could be asked in the comment section. But, it shouldn't be too much to ask that a person read the diary and be able to understand the concept.
In my previous diary, a commenter asked about the Article 15. The full description can be found here.
Nonjudicial punishment (NJP) refers to certain limited punishments which can be awarded for minor disciplinary offenses by a commanding officer or officer in charge to members of his/her command. In the Navy and Coast Guard, nonjudicial punishment proceedings are referred to as "captain's mast" or simply "mast." In the Marine Corps, the process is called "office hours," and in the Army and Air Force, it is referred to as "Article 15."
To initiate Article 15 action, a commander must have reason to believe that a member of his/her command committed an offense under the UCMJ. Article 15 gives a commanding officer power to punish individuals for minor offenses. The term minor offense" has been the cause of some concern in the administration of NJP. Article 15, UCMJ, and Part V, para. 1e, MCM (1998 ed.), indicate that the term "minor offense" means misconduct normally not more serious than that usually handled at summary court-martial (where the maximum punishment is thirty days' confinement).
For that commenter, I hope that article answers your questions.
When an order is deemed lawful is inherently upon the issuance unless it is an order that specifically orders someone to commit a crime. The point of time when a military member must decide, for themselves, if the order is lawful or not is at the time the order is issued.
If the military person has any qualms about the order given to them being lawful or not, as I point out in my previous diary, the question they must ask themselves is; if the order is found later to have been unlawful and they are prosecuted for committing an illegal act, would they prefer that really bad sentence, or, would they rather have the light sentence they would have received for disobeying the order outright?
As I point out in the previous diary, the most a person can expect as a sentence for disobeying an order (READ PEOPLE) is six months confinement, reduction in rank, forfeiture of pay during that confinement, and discharge from the military. Or, the person can roll the dice, as did SPC Graner at Abu Ghraib, and be sentenced to 10 years in Leavenworth, KS. Or, in the case of those who I worked with in Turkey, they can obey an unsafe order (again... it's unsafe, not necessarily unlawful), they can knowingly go out on an operation they know (or fear) will go bad, and go to the hospital or morgue just as four of the guys I worked with did (in that case, it was the trauma ward of the hospital).
Now, this issue is done... stay tuned tomorrow for my next diary; "How to write diaries for dummies"
The premise will be that you have to repeat constantly the premise of the diary and, at various stages, give lessons in the English language.