Tags
Article 90, Article 92, Article IV, Jason Kander, lawful order, Manual for Courts-Martial United States, Nürnberg Tribunal, Nuremburg Principles, Rule 916, social media, UCMJ, Uniform Code of Military Justice
Jason Kander (D) [2017 file photo].
Jason Kander @jasonkander.bsky.social
This is the force they plan to deploy – along with federal law enforcement and ICE gangs – to suppress voter turnout in cities. Or worse. If you are a member of this QRF, you have a moral duty to educate yourself on and refuse to carry out illegal orders. [….]
Pentagon Readying Thousands of Guard ‘Reaction Forces’
“The Pentagon has ordered thousands of specialized National Guard personnel to complete civil unrest mission training over the next several months, an indication that the Trump administration’s effort…
[….]
Lawful order.
10 U.S. Code § 890 – Art. 90. Willfully disobeying superior commissioned officer
Any person subject to this chapter who willfully disobeys a lawful command of that person’s superior commissioned officer shall be punished—
(1)if the offense is committed in time of war, by death or such other punishment as a court-martial may direct; and
(2)if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.
10 U.S. Code § 892 – Art. 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 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.
“It was an unlawful order” is an affirmative defense.
Manual for Courts-Martial United States (2024 Edition):
[….]
(a) In general. As used in this rule, “defenses” includes any special defense which, although not denying that the accused committed the objective acts constituting the offense charged, denies, wholly or partially, criminal responsibility for those acts.
[….]
(1) Ignorance or mistake of law. Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense.
Discussion
[….] On the other hand, if the accused disobeyed an order, under the actual but mistaken belief that the order was unlawful, this would not be a defense because the accused’s mistake was as to the order itself, and not as to a separate nonpenal law. Also, mistake of law may be a defense when the mistake results from reliance on the decision or pronouncement of an authorized public official or agency. [….] On the other hand, reliance on the advice of counsel that a certain course of conduct is legal is not, of itself, a defense.
[….]
On following orders:
Service members of the United States Armed Forces are required to disobey orders that violate the law. As retired Marine Corps General John Allen recently said: “When we swear an oath to support and defend the Constitution…one of those is to ensure that we do not obey illegal orders.” While the Uniform Code of Military Justice demands obedience to the lawful orders of a superior commissioned officer, it equally demands disobedience when the order given is illegal. Military leaders such as Lieutenant General Sean MacFarland have spoken out to reaffirm that the U.S. military will not commit war crimes: “We are bound by the laws of armed conflict. And you know at the end of the day, it doesn’t only matter if you win, it matters how you win.” Both international and domestic courts have a robust history of convicting service members who carried out unlawful orders. When former Nazis claimed to have just been following orders, this defense was unequivocally rejected during the Nuremberg trials.
[….]
[….]
Principle IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
[….]
And here we are, in 21st Century America.