Military lawyer on fallout from lawmakers' 'Illegal orders' video

Key Concepts

• Uniform Code of Military Justice (UCMJ): The military penal code governing disputes within the armed forces.
• Manual for Courts-Martial: A document that provides guidance on military legal proceedings, including the presumption of lawful orders.
• Patently Illegal Order: An order that is clearly and obviously unlawful or criminal.
• Unlawful Command Influence: Occurs when a superior in the chain of command dictates or implies that charges should be brought or influences the outcome of a case.
• Chilling Effect: The discouragement of a certain action (e.g., questioning orders) due to fear of reprisal.
• Due Process: The legal requirement that the state must respect all legal rights owed to a person.

Understanding Illegal Orders in the Military

This discussion centers on the concept of illegal orders within the military, prompted by a video from six Democratic lawmakers urging soldiers to refuse such orders. Margaret Donovan, a former military lawyer (JAG) and recipient of two Bronze Stars, clarifies the legal framework and implications.

The Presumption of Lawful Orders

• UCMJ and Manual for Courts-Martial: Orders in the military are presumed to be lawful under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial. This presumption establishes a "high bar" for deeming an order unlawful.
• Rationale for the High Bar: This presumption is crucial for maintaining "good order and discipline" within the military, ensuring soldiers follow directives.
• Exception for Patently Illegal Orders: The presumption of lawfulness is lost when an order is "patently illegal or criminal." In such cases, soldiers are not obligated to obey.

The Actions of the Democratic Lawmakers

• Least Controversial Statement: Donovan argues that the lawmakers' call for soldiers to act lawfully is "the least controversial thing" they could have said, as soldiers are already expected to do so.
• No Grounds for Prosecution: She asserts there are "absolutely not" grounds for prosecuting the six lawmakers.
• Preposterousity of Court-Martial: Donovan finds the idea of recalling Senator Kelly from retirement to court-martial him for telling soldiers to act lawfully "preposterous."

Personal Experience and Current Administration's Approach

• Advising on Rules of Engagement: In her experience, Donovan advised soldiers on the rules of engagement and the law of armed conflict while deployed.
• Experienced Commanders: She benefited from working with experienced commanders who understood and respected legal boundaries.
• Current Administration's "Pushing the Envelope": Donovan criticizes the current administration, specifically the Secretary of Defense, for "intentionally pushing the envelope" and potentially putting soldiers in a difficult position of discerning legal from illegal orders. She believes soldiers should not be subjected to this.

Unlawful Command Influence and its Implications

• Secretary of Defense's Comments: Donovan points out that Secretary of Defense comments about potentially court-martialing Senator Kelly are likely a deflection because there is no civilian legal basis for such action.
• Development of a Defense: The comments from the President and Secretary of Defense have inadvertently created a strong defense of "unlawful command influence" for any potential prosecution, whether civilian or military.
• Definition of Unlawful Command Influence: This occurs when someone in a high position dictates or implies how charges should be brought or the outcome of a case, akin to vindictive or selective prosecution.
• Tainted Case: The President's public statements are seen as "tainting" any potential case, making it difficult to proceed fairly.

The Chilling Effect on Military Members

• Problematic Consequence: Donovan believes the "chilling effect" on military members is a significant and problematic consequence, even if not the intended one.
• Due Process in Military Justice: She acknowledges that the military justice system has "pretty robust due process," including preliminary hearings and the option for a jury trial for felony-level charges.
• Fear of Questioning Orders: The primary concern is that soldiers may become too afraid to ask whether an order is lawful, which is detrimental to the military.
• Balancing Act: While orders are presumed lawful, the current leadership's actions necessitate soldiers following their oath to the Constitution and their moral compass. Donovan expresses confidence in the integrity and character of American soldiers.

Conclusion

The discussion highlights the critical distinction between lawful and patently illegal orders in the military. While the UCMJ presumes orders are lawful to maintain discipline, this presumption dissolves when an order is clearly criminal. The actions and statements of the current administration are seen as potentially undermining this balance by creating a chilling effect and inadvertently establishing a defense of unlawful command influence. Ultimately, the integrity and character of American soldiers are emphasized as crucial in navigating such complex situations.