Let’s get the test result first and then we can learn the lesson. Soldiers must obey lawful orders. Soldiers must refuse to follow unlawful orders. It is the law despite what the
Commander-in-Chief says.
Since 1950, all branches of the United States military have been governed by federal law known as the Uniform Code of Military Justice. Article 92 requires that soldiers obey lawful
orders. But the converse is set forth in the Manual for Courts-Martial that provides that one should not follow a “patently illegal order, such as one that directs the commission of a
crime.”
The Manual also says an order is not lawful if it is “contrary to the Constitution,” or “the laws of the United States” (which includes the Geneva Conventions of War). “I was just following orders” was the Nuremberg war trial defense after World War II, but not all orders may be lawful.
An order to capture enemy combatants and zip tie their arms and legs is lawful. To order them to be shot would not be. You cannot explain the nuances of the issue in a 30-second commercial but in the 1970s, it fell to me to explain the UCMJ across the armories in the State of New Hampshire.
On April 30, 1977, protests at the construction site for the Seabrook Nuclear Power Plant led to the arrest of 1,414 people. With more problems coming, the Adjutant General asked those of us in the Judge Advocate Corps to do lectures on riot control as well as when you can refuse to follow an order. Our example was a unit of the Ohio National Guard firing on unarmed student war protesters at Kent State University on May 4, 1970. Four students were killed and nine wounded by gunfire.
The nearest student was 60 feet away and giving the troops a raised middle finger when he was shot twice. The majority of the dead and wounded were 300 feet or more away and one killed was an ROTC student. The situation was so bad that Adjutant General Sylvester Del Corso swore under oath to the United States Department of Justice that his men had no reason to use deadly force that day.
A famous photograph taken of the shooting appearing in Life Magazine shows the dozen or so guardsmen firing into the protesting students. But at least five had opted out by firing or aiming well into the air. An inner voice told them not to shoot unarmed students.
Just two years before Kent State in March of 1968, the 20th Infantry Division Platoon in the Son My Village in My Lai, Vietnam, was ordered to clean out the place. Hundreds of women, children and old men were slaughtered. The total ranged in estimates from 347 up to 504 souls killed.
The unlawfulness of Lieutenant William Calley’s order was manifest in the actions of several privates in the Platoon. PFC Herbert Carter shot himself in the foot so he could be extracted and avoid shooting the villagers.
Imagine how hard it was for young Private James Dursi who rounded up some civilians but refused Lt. Calley’s order to shoot them. PFC Ronald Grzesik refused an order to shoot villagers hiding in a ditch even when his commanding officer threatened to shoot him. Private Harry Stanley refused an order to shoot civilians rounded up in a bomb crater hole.
The bottom line is that just because an order is issued does not make it always lawful. Murder is still a crime and orders to murder civilians are not presumed to be lawful. For members of Congress to point this out is not sedition, it is the law. For the Commander-in-Chief to call for their death as traitors reflects his total ignorance of military law. Had he served in the Army rather than dodging the draft he would have learned this.
Chuck Douglas is a lawyer and former judge who retired as a Colonel and Judge Advocate General of the New Hampshire Army National Guard.