There are just some talking points that doesn't allow a mere comment to do it justice. One of these is; "but, they are in the military, they have to follow orders".
Anyone who believes this can be categorized into one of the following categories:
- A civilian who has no idea about the military or the UCMJ.
- A military or veteran who wants to excuse behavior.
- A talking head who knows better but states it anyway.
Follow me after the flip and get a crash course in the Uniform Code of Military Justice as it pertains to "orders"...
The military has its own rules that are spelled out in USC Title Codes, DoD directives, and the Uniform Code of Military Justice (UCMJ). In this diary, I am going to look at only one issue; whether or not a servicemember is required to follow an order or not.
Subchapter X of Chapter 47 lists the punitive articles of the UCMJ. For the purposes of this one issue, the only three articles we need view are:
Article 90 - Assaulting or willfully disobeying superior commissioned officer.
Any person subject to this chapter who--
(1) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his officer; or
(2) willfully disobeys a lawful command of his superior commissioned officer;
shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
Article 91 - Insubordinate Conduct Toward Warrant Officer, Noncommissioned Officer, or Petty Officer
Any warrant officer or enlisted member who--
(1) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office;
shall be punished as a court-martial may direct.
Article 92 - Failure to obey order or regulation.
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 any 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.
Those are the three Articles concerning failure to obey a lawful order. The differences is that Article 90 and 91 make the distinction that the failure to obey the lawful order was done willfully while in Article 92 the failure to obey does not have to be of a willful nature.
Now, if you read the Articles, you will notice a very specific wording in them, ie, lawful order, and they are specifically written with this wording for a reason. A person cannot commit an illegal act and use the defense; "I was simply following orders."
The concept that simply "following orders" does not alleviate a persons responsibility for illegal acts goes back to 1799. During the war with France, Navy commanders were following a Presidential order from John Adams when they seized ships. The order was backed by a law passed by Congress. The owners of seized ships sued and the U.S. Supreme Court ruled that; Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.
After World War II, the defense of "I was simply following orders" was again challenged during the Nuremburg Trials. A 1991 Hasting Center Report states, "In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy" of the United States."
The concept was again reinforced during the Vietnam war. In United States v. Keenan, the accused had, under orders, murdered an elderly Vietnamese citizen. The Court of Military Appeals held that "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."
During the Abu Ghraib scandal, many of the defendants at trial claimed they were merely following orders. That defense didn't work any better in 2004 than it did in 1799.
Military men and women are instructed beginning in basic training that they must follow all lawful orders and that they are not to obey orders that are unlawful in nature. What is "lawful" or "unlawful" has been established by not only the inclusion of the principles from the Nuremburg Trials, but, by the Military Court of Appeals ruling in U.S. v Keenan.
In addition, the argument that "military men and women will be prosecuted if they don't follow an order" holds little weight, as well. In U.S. vs Bracey, the defendant was charged with a slew of violations:
A special court-martial composed of a military judge sitting alone convicted appellant, pursuant to his pleas, of failure to go to his appointed place of duty, disrespect to a superior commissioned officer (four specifications), failure to obey a noncommissioned officer, and disrespect to a superior noncommissioned officer (two specifications), in violation of Articles 86, 89, and 91, Uniform Code of Military Justice (UCMJ), 10 USC §§ 886, 889, and 891, respectively.
I count 9 violations that the defendant was charged with, and, for all of that, he was sentenced to only 6 months in confinement;
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.
Spc. Charles A. Graner, Jr, for his role in the Abu Ghraib abuses, was sentencedto 10 years:
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.
Even during the Iraq war we have seen cases of disobedience. In 2004, 19 Reservists refused to obey an order to perform a convoy mission because it was too dangerous and they were not equipped properly.
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. Meanwhile, a coalition-forces spokesman denied families' claims that the reservists were being detained. Says Lieut. Colonel Steven Boylan: "Things are getting a little out of control and have been exaggerated a little bit."
This was a mutiny by 19 members of a unit in Iraq who stood up and said "NO" to an order during a time of war. Were these members executed as the Article clearly states they could have been? No. The members received letters in their files called "non-judicial punishment" and all of them were returned to duty.
The publicity surrounding the mutiny forced the US military to issue a carefully worded statement. The soldiers, the statement said, had raised "some valid concerns" which some "chose to express... in an inappropriate manner, causing a temporary breakdown in discipline". The military has denied any of the soldiers have been arrested and has stated that all 19 have returned to duty. The unit has reportedly been stood down for two weeks to carry out maintenance on its vehicles.
Brigadier General James Chambers, the commander of the 13th Corps Support Command, told a press conference: "Based on our investigations other actions may be necessary." Two investigations have been announced, but the mutiny has been dismissed as an "isolated incident".
So, why don't more soldiers refuse unlawful or unsafe orders? Fear. They know that there will be retaliation if they don't obey the order. As I diaried before in "Mess up, Move up - The Military Meme", I was part of the EOD unit in Incirlik AB, Turkey, who were told by the SMSgt in charge that an operation that he knew was an unsafe operation would continue. I was the only person in the unit who refused to take part in the operation. The two other EOD technicians who brought out the concern to the SMSgt, a MSgt (E-7) and TSgt (E-6), both went out on the operation despite knowing it was unsafe. The fear was justified; four EOD technicians had to be taken to the emergency room when the operation did, in fact, go bad, just as the SMSgt had been told. I learned after I had a permanent change of station from Incirlik, that indeed, the SMSgt had tried to send me to courtmartial, but, that the commanding officer would have none of it.
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? I've already answered that question; you want to send me away for 6 months and the alternative is injury/death and/or serious federal prison time? Shall I call the guards for you, Sir? Yet, many still roll the dice.
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.
Before anyone blows a gasket and thinks I'm calling our servicemembers something that I'm not, or saying something in this diary I'm not, settle down. A diary was posted that had this in it:
Do you want to give people in the military the option of refusing to obey the orders of a superior? Do you want to give generals the option of simply refusing to follow the orders of the President if they happen to disagree with the policy behind those orders? Do you really want to open ourselves up to that?
I'm writing this diary in response to that premise. Our military men and women already can refuse to follow an unlawful order, and it isn't an "option" for them, it's duty. The Generals can already refuse to follow an order given by the President when the order is illegal, as stated by the Supreme Court in 1799. We are already "opened up" to it because it has been this way for a hundred years and has been reinforced time and time again in court. We have already seen Generals retire rather than follow Bush's fantasy plans. We have seen military members go AWOL and desert. We have seen them commit suicide and self-inflict wounds so they don't redeploy. We have seen them simply refuse movement. We have seen entire units mutiny. It's called courage and anyone who is brave enough to go into combat can surely stand up to a superior who issues an unlawful or unsafe order.
My wife and I, when I tried to get into the National Guard, talked extensively about what a third trip back to Iraq would mean. In fact, the recruiter was looking at getting me into an Military Police unit as I'm not only a veteran but also ex-law enforcement and they weren't 100% sure they couldn't get my schooling waived. I flat told the recruiter I was not going back to Iraq as an MP because I know what the MP's in Iraq are doing; they are guarding prisoners, transporting prisoners, and running the prisons. Can you say Abu Ghraib anyone? I flat told the recruiter that if any of the officers tried to get me tossed into Leavenworth, I'd be out of there so fast his head would spin.
So, we can put the whole "they have to follow orders" nonsense to bed...
UPDATE:
Ok, there seems to be confusion between the statutes (ie, Articles), and the fact that people are still punished.
Why does that happen? It's a problem in the LEADERSHIP, not the system itself.
How many of those who issued the orders at Abu Ghraib are in Leavenworth? NONE. The officers who WERE "disciplined", ie, they got a letter in their file and were then "forced" to retire with their big pensions, shows how the leadership protects their own. The grunts are in prison. The leadership got off scot free.
This is WHY I point out in the diary that if you are given the choice of 6 months confinement or 10 years in prison for obeying an unlawful order... you take the 6 months. This fact doesn't change how the system is supposed to work, only how it DOES work under the current political nature of the officer corp.
UPDATE 2:
It seems some just need more information, so, here it is:
- TheAir Force Officers Qualification Test
- The Armed Forces Qualification Test - Read in this article.
Test category I-IIIA's represented 63.4 percent of all non prior service enlistments and test category IV's, individuals who score in the lowest acceptable category on the Armed Forces Qualification Test (AFQT), fell to 10.2 percent. In light of an increasingly competitive manpower market due to a declining labor pool, an improved economy, and lower unemployment, continued success in fiscal year 1985 would be difficult to maintain and greater stress would have to be placed on such incentives as fair and competitive compensation, a new educational assistance program, and enlistment bonuses.
- The Army was enlisting in SPECIFIC MOS in 1986 by the Department of the Army Historical Summary: FY 1985.
The Veterans Educational Assistance Act, signed into law in October 1984, gave the Army and the other military services an important new tool in attracting recruits. The basic benefits package provides persons entering active military service after 1 July 1985 $9,000 in education benefits for serving two years and $10,800 in benefits for serving three years. Additional benefits-up to $17,000 for those signing up for two years, $22,800 for a three-year enlistment, and $25,200 for individuals making a four-year commitment-are available for soldiers who have a high school diploma, score in the upper 50 percentile on the Army aptitude test, and enlist in specific, critical skills in which the Army offered training. Army reserve component soldiers who meet the requirements and extend their terms of service to six years are eligible for up to $5,040 in educational benefits.
- Were computersbeing used in 1986?
Title : Basic Attributes Test (BAT): A Preliminary Comparison between Reserve Officer Training Corps (ROTC) and Officer Training School (OTS) Pilot Candidates
Descriptive Note : Technical rept. Jul 1986-Aug 1989
Abstract : The Basic Attributes Test (BAT) battery is a set of computer- administered personnel tests designed to assess a broad range of attributes believed to be related to flying training performance. The original battery consisted of 15 tests that measured psychomotor coordination, cognitive and perceptual abilities, and personality and attitudinal characteristics.
(Note, I still have no idea WHAT test the Army recruiter issued to me as I have not been able to verify if the test was a standardized test)