17-member Army platoon arrested for refusing suicide mission

To Obey or Not to Obey?
Rod Powers

When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

National Guard enlisted members take a similar oath, except they also swear to obey the orders of the Governor of their state.

Officers, upon commission, swear to the following:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Military discipline and effectiveness is built on the foundation of obedience to orders.
Recruits are taught to obey, immediately and without question, orders from their superiors, right from day-one of boot camp.
Military members who fail to obey the lawful orders of their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) makes it a crime for a military member to WILLFULLY disobey a superior commissioned officer. Article 91 makes it a crime to WILLFULLY disobey a superior Noncommissioned or Warrant Officer. Article 92 makes it a crime to disobey any lawful order (the disobedience does not have to be "willful" under this article).

In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.

Seems like pretty good motivation to obey any order you're given, right? Nope. These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal.

"I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II). The defense didn't work for them, nor has it worked in hundreds of cases since.

The first recorded case of a United States Military officer using the "I was only following orders" defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound to any French Port. However, when President John Adams wrote the order to authorize the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President's instructions, a U.S. Navy captain seized a Danish Ship (the Flying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.

The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

Probably the most famous case of the "I was only following orders" defense was the court-martial (and conviction for premeditated murder) of First Lieutenant William Calley for his part in the My Lai Massacre on March 16, 1968. The military court rejected Calley's argument of obeying the order of his superiors. On March 29, 1971, Calley was sentenced to life in prison. However, the public outcry in the United States following this very publicized and controversial trial was such that President Nixon granted him clemency. Calley wound up spending 3 1/2 years under house arrest at Fort Benning Georgia, where a federal judge ultimately ordered his release.
In 2004, the military began court-martials of several military members deployed to Iraq for mistreating prisoners and detainees. Several members claimed that they were only following the orders of military intelligence officials. Unfortunately (for them), that defense won't fly. The mistreatment of prisoners is a crime under both international law, and the Uniform Code of Military Justice (see Article 93 ?- Cruelty and Maltreatment).

It's clear, under military law, that military members can be held accountable for crimes committed under the guise of "obeying orders," and there is no requirement to obey orders which are unlawful. However, here's the rub: A military member disobeys such orders at his/her own peril. Ultimately, it's not whether or not the military member thinks the order is illegal or unlawful, it's whether military superiors (and courts) think the order was illegal or unlawful.

Take the case of Michael New. In 1995, Spec-4 Michael New was serving with the 1/15 Battalion of the 3rd infantry Division of the U.S. Army at Schweinfurt, Germany. When assigned as part of a multi-national peacekeeping mission about to be deployed to Macedonia, Spec-4 New and the other soldiers in his unit were ordered to wear United Nations (U.N.) Helmets and arm bands. New refused the order, contending that it was an illegal order. New's superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad conduct discharge. The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.

What about an order to participate in a dangerous mission? Can the military legally order one to go on a "suicide mission?" You bet they can.

In October 2004, the Army announced that they it were investigating up to 19 members of a platoon from the 343rd Quartermaster Company based in Rock Hill, South Carolina, for refusing to transport supplies in a dangerous area of Iraq.

According to family members, some of the troops thought the mission was "too dangerous" because their vehicles were unarmored (or had little armor), and the route they were scheduled to take is one of the most dangerous in Iraq.

According to reports, these members simply failed to show up for the pre-departure briefing for the mission.

Can they be punished for this? They certainly can. An order to perform a dangerous mission is lawful, because it's not an order to commit a crime. Under current law, and the Manual for Courts-Martial, "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."

In fact, if it can be shown that one or more of the soldiers influenced others to disobey, they may find the crime of Mutiny, under Article 94 added to the list of charges. Mutiny carries the death penalty, even in "peace time."

So, to obey, or not to obey? It depends on the order. Military members disobey orders at their own risk. They also obey orders at their own risk. An order to commit a crime is unlawful. An order to perform a military duty, no matter how dangerous is lawful, as long as it doesn't involve commission of a crime.

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Federal
Now that you have published that screed. What punishment do you think will be visited upon these people? What would you think is proper? Firing squad, penal colony at devils island?

Federal
What punishment should be visited upon Bush and Rumsfeld for sending undermanned poorly trained and equipped soldiers to Iraq. Based on lies. Who will get punished for the lack of planning that is causing the death of some many, both Americans and Iraqi's. I wonder if they care about the blood that is dripping from the hands.

I don't look on it as a 'screed'. The article is very clear on what military regulation stipulate and what the obligations of a soldier are.

As to the other, I think that if found guilty, the 'rank and file' members should get a moderate sentence based upon what the regulations call for.

The ringleader(s) of this incident (And things like this are ALWAYS instigated by one or two individuals who whip the other up into a froth, usually saying things like 'If we all refuse, they can't arrest all of us.') should have the book thrown at them. I am not sure what the regulations call for but 10 or so years in Leavenworth Prison sounds about right to make example of those specific individuals and make it CLEAR to the rest of the Guard, Reservists and even some Regulars that THE MILITARY IS NOT A DEMOCRACY.

You don't get to decide what orders you are going to follow and which are just 'too hard' or 'too dangerous'. That isn't how things work in the service.

The only orders you get to question are the ones that would break the law. The rest are not up to you.

Federal
Don't you think there is a possibility that a harsh penalty in this instance may do more harm than good to the moral of the troops in Iraq. The propaganda, put out by the administration is that the moral of the troops is better than good. However, there have been stories coming out of Iraq that would contradict that allegation. Can you send the same troops back to the front over and over, have stop loss rules that do not allow people whose enlistment is up to be discharged. Have shortages and inadequate equipment and etc. And expect the moral to be high? Just another Bush fairy tale

Federal
I do not need to have you explain the military and military justice to me. Been there, done that.

Again what do you think the punishment should be for Bush and Rumsfeld for causing the death and misery of many thousands.

au, there are ALWAYS shortages in war. At least at what most of us refer to the 'sharp end' of the war.

No matter how much that your industry produces, the troops will always need more than can be transported to them. The old adage goes like this: amateurs study tactics, professionals study logistics. That's what makes actions like those taken by these soldiers that disobeyed their orders so bad. They were interrupting the flow of supplies to the combat soldiers that were fighting the enemy day after day. The soldier on 'the line' relies on the logistics personnel to do their fricken jobs so he can do his, namely, killing the enemy.

As to shortages at the national level, I agree that more could have been done, but no army is ever 'fully' outfitted for war. If armies waited to move until every soldier in every unit had every item and piece of equipment that they wanted/needed, armies would never move. You go when you are at your peak, not at perfection.

During my time in the military, during PEACETIME, we NEVER had our complete outlay of equipment from our T.O.&E. (Table of Organization and Equipment). The military consumes supplies faster that you can ever imagine and things break faster than you can believe. Thats why soldiers like this Transport company are so important.

I am the fourth generation of my family in the military, the fifth generation of our family members are already in and some are deployed in Iraq and Afghanistan. I have dozens of friends still in and several are 'in country'. The tales you hear about morale are from newsies who don't leave the safe areas, speaking to the Reservists in the rear areas bitching about being 'called up', not the 'line dogs'.

They don't tell the stories about the 30+ regions of Iraq that are peaceful and getting their infrastructure repaired, schools reopened and in which people are going about their lives in peace. No, they talk about the 3 or 4 'hot spots' that are contained and make it all look like the whole country is like Falluja or Najarief. 'If it bleeds, it leads' may make for good ratings, but it doesn't give you the whole picture.

Try corresponding with some real soldiers, it will change you whole view on what is really going on over there.

Only one problem with this Fedral... The country IS a Democracy

The Commander in Chief is accountable to the nation. His bosses are the mothers and fathers and sisters and sons of the soldiers he has put in this impossible situation.

In a perfect world, the president could put these savage dangerous criminals in the brig indefinately without batting an eye to whip the troops into shape and set a grand example.

But unfortunately, people care about these soldiers. They see them as kids in a very difficult situation who shouldn't be put in harms way indiscriminately.

The military simply can't follow your advice Fedral. It will do to much political damage to those at top, especially since much of America is questioning whether these kids should be there at all.

If only we could get rid of the free press...

Roger's right, as much as it pains me.

ebrown_p, the part you fail to grasp is:

When you join the military, you give up MANY of the rights that you and I take for granted as civilians.

It may not seem right, it may not seem fair, but there it is. Once you volunteer to join, you voluntarily place yourself under military law. The oath you take says that you will obey orders according to the UCMJ.

As to the punishment, I am not a military lawyer, so I do not know the possible sentence that such actions could draw, but I was asked my OPINION by au and I gave it.

The actual resolution of this case is up to a Courts Martial board and that will be that.

And yes, the President is answerable to 'we the people' and we can register our pleasure or displeasure at the polls, but military law is military law and these soldiers need to be held accountable for their actions.

No Fedral, I don't fail to grasp any of this. I don't disagree with anything you are saying.

But....

Bush and Company have a big public relations problem here. They want this to go away quietly. If the Bush administration agrees with you and give these kids "justice", the families of these soldiers will ensure that it doesn't.

Bush as commander in chief has the ability to get these kids off easy. He will be under a great deal of pressure to do so.

We will see what happens.

That's true Au...another reason why our executive branch did us a disservice.

My 2 cents... disobeying an order is a very serious undertaking. My Lai ...I can see it. Supply column...no

Federal
That military tactician, "Rumsfeld" and his moronic boss started a war of choice Without sufficient manpower, equipment and a plan. That is the reason for the present quagmire in Iraq. None other. And who suffers certainly not those responsible just the cannon fodder. Americas most important commodity it's youth. There is absolutely no excuse for starting a war of choice without sufficient manpower, equipment and a plan. It is criminal. Those two deserve at least 10 years in Leavenworth.

You can't handle the truth..Gitmo for sure.