We’ve been discussing the topic of how the military will respond to illegal orders given by Trump. Here’s my first-hand experience (on a micro level) when I was an Army JAG/prosecutor in Alaska. I had a company commander (a CPT) consult with me about his desire to
bring court-martial charges against one of his soldiers for disobeying an order. As soldiers, we’re taught that we must obey lawful orders BUT are obligated to DISOBEY unlawful orders. Please understand, soldiers are put in a potentially perilous situation
when they are ordered to do something they believe to be illegal. They either obey the order (which is contrary to their duty to DISOBEY an unlawful order) or they disobey the order only to have someone down the road decide it was a lawful order and therefore they committed
an offense under the Uniform Code of Military Justice (UCMJ - the military’s criminal statutes) and are subject to court martial. Talk about being in a tough spot. The CPT consulted me, seeking to court martial one of his men for violating an order.
He told me he had ordered the solidier to perform a task while the unit was on a field training exercise (involving cleaning and maintenance of the area in which they were training). The soldier, believing it to be an illegal order, refused.
The CPT then attempted to impose what’s referred to as “Article 15, non-judicial punishment.” This is a low-level (but still consequential) form of punishment that a commander can impose relatively quickly as a means to punish a soldier for a minor offense. HOWEVER,
soldiers have an absolute right to refuse Article 15 punishment and demand a court martial instead. This is what the soldier did. We (myself and lots of far more senior and experienced JAG officers) then had to decide if the original order was lawful. Because if it was not,
then we clearly could not proceed to a court martial, as the soldier would have a complete defense to the charge of “failing to obey a lawful order.” Without getting into the details of the order (a much longer conversation), we concluded that the order was not lawful
(as it exposed the soldier to an unreasonable/unacceptable risk to his health) and therefore we would not support a court-martial prosecution. This angered the CPT (and perhaps others in the CPT’s chain of command) however it was the only lawful resolution of the situation.
Needless to say, if I’d been ordered to prosecute the soldier, I would have disobeyed THAT order. Because THAT is a soldier’s sworn duty - to disobey unlawful orders. I hope and trust ALL military commanders and members keep that in mind when Trump’s unlawful orders start flying.
