View Full Version : Doing the right thing:What to do if you’re ever issued an unlawful order

05-20-04, 10:34 AM
Issue Date: May 24, 2004

Doing the right thing
What to do if you’re ever issued an unlawful order

By William H. McMichael
Times staff writer

You’re on a high-profile maintenance team for an expensive prototype aircraft the Marine Corps desperately wants to buy. But it’s got major safety problems that, if revealed, could scuttle the plane and send billions down the drain.
You know about the problems. You work on the controversial aircraft every day. You also know service members have died on initial test flights. Others know it, too.

But what most people don’t know is that you and your buddies have been told by your squadron commander to falsify maintenance reports to make the problems “disappear.” Incredibly, at an all-hands meeting, the commanding officer makes no bones about it: “We need to lie,” he says.

Would you lie? Could you?

For one Marine, the choice was clear: disobey the obviously unlawful order. This true story happened in 2000.

The Marine took action and sent a secret tape recording of the commander’s statement to the TV news program “60 Minutes” and, a week later, to the secretary of the Navy. The Marine’s actions prompted an investigation that resulted in reprimands for the commander and another officer, and forced overhauls in the controversial MV-22 Osprey program.

Lt. Col. Odin “Fred” Leberman’s 2000 order was illegal and the whistle-blowing Marine was well within his rights — and moral obligation — to report the order and, more importantly, refuse to obey it, experts say.

U.S. military law is crystal clear on this subject: Service members have the right to refuse to obey an illegal order.

But what defines a “lawful order”? As a practical matter, what does a Marine do when, faced with a crisis of conscience, he feels compelled to question the legality of an order?Further, what happens if and when you do?

Abuse at Abu Ghraib

Illegal orders have been a hot topic since the shocking photos of prisoner abuse at the hands of U.S. troops and civilians at Abu Ghraib prison recently became public. Prisoners were hooded, piled naked atop one another, wired as if they would receive electric shocks and threatened with military dogs, among other things. There are allegations of the rape of at least one female prisoner, and under investigation are at least two apparent slayings of prisoners in U.S. custody.

Army Maj. Gen. Antonio Taguba’s investigation documented instances of lawful orders ignored, violations of a general order and a lack of orders demanded by certain procedures. Taguba told the Senate Armed Services Committee on May 11 there was “a lack of leadership presence” at the prison, but he found no evidence that guards or military intelligence interrogators were given illegal orders to mistreat prisoners.

Some soldiers charged with mistreatment, however, argue the opposite and say they were following orders from superiors to ”loosen up” prisoners for subsequent interrogation. The civilian lawyers for Army Pfc. Lynndie R. England say she was ordered by her superiors to hold a leash tied around an Iraqi prisoner’s neck and pose for photos with other naked prisoners at Abu Ghraib so the pictures could be used to get other prisoners to talk.

England, 21, is charged with 13 counts of misconduct and faces court-martial with at least six other people.

What should you do?

The Abu Ghraib situation raises the question for U.S. troops everywhere: How should a service member react to orders that are obviously illegal — or at least seem questionable?

In a series of methodical steps, said Bill Eckhardt, a professor at the University of Missouri-Kansas City School of Law. Eckhardt, a retired Army colonel and attorney, was the lead prosecutor on nearly all the Vietnam-era My Lai courts-martial cases.

My Lai was the notorious 1968 massacre in which soldiers of an Army company — ordered to “sweep” a hamlet suspected of being a guerrilla stronghold — shot and killed an estimated 500 civilians suspected of being enemy sympathizers — many of them women and children. Three rifles later were found in the camp, but none of the people shot was armed. Some participants said they acted on direct orders from the company commander.

The Abu Ghraib abuses, while heinous, pale next to My Lai. But for service members faced with deciding whether to obey or oppose an illegal order, the process is exactly the same, Eckhardt said.

“The first step is, any soldier who serves ... who proudly puts on the uniform, doesn’t leave [his] conscience behind,” he said. “Secondly, they should trust their training and their standard operating procedures. Those are designed to help them when the bullets fly and when the adrenaline’s flowing.”

Third, he said, troops should understand the rules of engagement.

The fourth step has to do with what he called “a lack of clarity” in orders.

“If there’s a question in their mind about orders, they simply ask for clarification,” Eckhardt said. “Obviously, sometimes, that can’t be done.”

But generally, a service member should respond to a questionable order with something along the lines of, “Do you mean for me to do ‘X’?”

“And usually, the answer is, ‘God, no. Don’t do that. That isn’t what I intended at all.’”

But if the answer is, “Yes, that’s what I meant,” the options vary. An officer, Eckhardt said, should ask for clarification in writing.

A lack of clarity might be the problem, rather than malicious intent.

“They may not see a legal problem with it when they give the order,” said Dave Perry, professor of ethics at the Army War College in Carlisle, Pa. “It’s important to try and get clarification on that.”

If the officer still felt that following the order would irrevocably compromise his integrity, he could resign, Eckhardt, Perry and others said.

“That’s not very practical for a specialist or a private,” Eckhardt said. “They should seek assistance from someone up in the chain. The top enlisted person. The chaplains. Staff judge advocates.”

At the same time, Perry said, it’s important for commanders to establish a climate in which subordinates feel their concerns will be heard. A lack of approachability “doesn’t help in setting a climate of respect for the law, and so on, if an officer just says, ‘Do this,’ or they have a tendency to shoot the messenger,” he said.

Obligation to disobey

Obeying orders, whether direct or standing, isn’t just a promise sworn to in an oath. It’s the law, spelled out in Defense Department and Navy and Marine Corps directives that also mandate the reporting of such incidents as the abuses at Abu Ghraib. According to military legal studies, a lawful order must be reasonably linked to military needs, be specific and not be contrary to established law — the Constitution, United States or other laws — or be beyond the authority of the person issuing the command.

Failure to obey a lawful order is a crime under Article 92 of the Uniform Code of Military Justice. But the UCMJ and military case law also make clear that military personnel have an obligation to obey only lawful orders, implying a clear obligation to disobey unlawful ones, Eckhardt said.

The Army points this out in a training package for its Law of Land Warfare, taught in basic training.

“The lack of courage to disregard a criminal order, or a mistaken fear that you could be court-martialed for disobedience of orders, is not a defense to a charge of murder, pillage or any other war crime,” it states.

In the Marine Corps basic training manual, Marines are taught to take a proactive stance when they encounter violations: “Marines should do their best to prevent violations of the law of war and report acts they could not prevent.”

While some illegal orders would be easy to identify, it is the gray areas that pose the greatest questions of legality. Killing a group of children clearly would be illegal, said retired Lt. Col. Ken Martin, a former Marine lawyer now in practice in Tampa, Fla. But firing on a site of religious significance is more ambiguous, he said, referring to laws of war prohibiting firing on religious structures unless they are used for enemy protection.

“What if someone’s shooting at you and running behind a mosque to get to another point?” he said. “Should you wait, or can you throw a grenade ... knowing it would destroy part of the mosque?”

Shooting someone who has surrendered is another clearly illegal order. But in a combat zone, Martin said, “If I told an 18-, 19-year-old kid, ‘Shoot him. It’s him or us,’ I don’t know if he would know that that’s an unlawful order.”

Pentagon lawyers themselves do not agree upon some of these gray areas, so it’s not unusual for young service members to be unclear on what is and isn’t allowed in certain situations.

Trust your gut

The best test, perhaps, is one’s own sense of right and wrong.

“Everybody needs to figure out [if] what they think in their gut is wrong,” said Lawrence Mosqueda, who teaches political economy and social change at Evergreen State College in Olympia, Wash., and has read the Taguba report.

“Torturing somebody, putting wires on them, those are universally known as something you’re not supposed to do,” he said.

One personal gauge, Mosqueda said, could be whether the activity in which the service member is engaged is “not something you’d want known in detail to your family and friends, like this particular soldier who stripped this prisoner and attached wires to his genitals.”


05-20-04, 10:35 AM
But much depends on the situation. “If you’re in a combat situation, under fire ... and you have about two seconds to make a decision, that’s where terrible mistakes can happen,” he said.

“The things we’re seeing in the press right now, when clearly, you have hours to decide what you’re doing — that’s not a combat situation,” he said. “That becomes routine. That becomes policy. ... What we’re seeing right now are criminal acts.”

Service members also may feel orders are illegal not because they involve the commission of a crime, but as a matter of conscience.

In one famous incident, refusing to obey a lawful order saved lives.

It was Nov. 28, 1950, and Marines of Fox Company, 2nd Battalion, 7th Marines, were in position on a snow-covered hillside at North Korea’s Chosin Reservoir. The enemy was striking hard. Surrounded, Capt. William Barber, the commanding officer, said he could hold out if resupplied. Instead, he received a new order: Fight your way out of there and retreat. Barber refused to obey, as he felt leaving the position would isolate another 8,000 Marines trapped nearby. He and his unit stayed and fought for five days before the company was finally relieved.

Barber was awarded the Medal of Honor.

Law training improves

Training in and awareness of the law of war appears to have come a long way in the past 40 years. In Vietnam, according to “The My Lai Massacre: A Case Study” by Army Maj. Tony Raimondo, members of the armed forces were instructed on the Law of Land Warfare but virtually no one received instruction on unlawful or illegal orders or on when not to obey orders.

Some of the soldiers charged in the Abu Ghraib scandal claim a similar lack of training. H. Wayne Elliott, a retired Army lieutenant colonel who taught classes on the Law of Land Warfare at the Army Judge Advocate General’s school in Charlottesville, Va., for nine of his 22 years of service, said that’s nonsense.

“It doesn’t seem to me there would be any lawful basis for what these people were photographed doing,” Elliott said. “The idea that they never received training is ridiculous.”Today, all services train enlistees on the laws of warfare. In boot camp, Marines review the nine principles of the Law of Land Warfare and continue to receive ethics training in their follow-on schools. Officers study the topic at schools throughout their careers. The master’s degree-level postgraduate schools all provide courses in military ethics.

“The military does try to equip everyone, at every level, with a developed conscience so that in the proper moment, they’re ready to make the correct decision,” said Air Force Col. Tom Hall, chairman of the Department of Leadership and Ethics at the Air War College at Maxwell Air Force Base, Ala.

He also stressed the importance of continuing ethics education. “I believe that you have to constantly nourish that sense of right, that conscience, just as much as you have to stay physically fit,” Hall said.

Eckhardt had a more ominous warning:

“Only the profession of arms prosecutes people for inaction. If you are responsible for what’s going on around you, and it is going unlawfully, and you know that [and] do nothing about it, I’m going to prosecute you. So basically, you’ve gotta be a whistleblower.”

Librarian Lynda Schmitz Fuhrig and Times staff writers Laura Bailey, Gordon Trowbridge and Matthew Cox contributed to this report.



06-01-04, 02:36 AM
Lt. Col. Odin “Fred” Leberman’s 2000 order was illegal and the whistle-blowing Marine was well within his rights — and moral obligation — to report the order and, more importantly, refuse to obey it, experts say.

Wonder what the whistlebower's srb looks like?
red flagged?

06-01-04, 02:55 AM
No big college book answer here...

If the order's clearly unlawful?

You must disobey it.

06-09-04, 02:08 PM
To me that is a no brainer.