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Ask the Lawyer: Following orders not automatic defense

Aug. 30, 2012 - 06:02PM   |   Last Updated: Aug. 30, 2012 - 06:02PM  |  
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Q. Can I get off the hook for a crime if I acted on orders?

A. Obedience to orders can be raised as a defense in court-martial proceedings, but it doesn't guarantee blanket immunity from criminal prosecution.

The biggest question in cases where obedience-to-orders defenses are raised is: Was the order lawful?

As the Manual for Courts-Martial notes, an order is "inferred to be lawful" so long as it is not a "patently illegal order, such as one that directs the commission of a crime." The military expects service members to know the difference, to the extent that "a person of ordinary sense and understanding would have known the order to be unlawful."

One of the most famous cases involving this issue is, of course, the one involving 1st Lt. William Calley, convicted for murdering 22 unarmed villagers and assaulting with intent to murder a 2-year-old in the village of My Lai in 1968.

In upholding his conviction, the U.S. Court of Military Appeals stated that "the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person."

In his defense, Calley claimed he was carrying out the orders of a superior officer, a captain. But the court said that regardless of whether he was the "most ignorant person in the United States Army in Vietnam, or the most intelligent, he must be presumed to know that he could not kill the people involved here."

More recently, in U.S. v. Smith (2010), the military's high court renamed the U.S. Court of Appeals for the Armed Forces since Calley's time upheld the conviction of an Army sergeant at the Abu Ghraib confinement facility in Iraq who used his military working dog to maltreat a detainee.

While a lawful order had authorized the use of military dogs during the interrogation of high-value detainees, a staff sergeant told the dog handler to use his dog on another detainee, even though he was not authorized to give that order making it unlawful.

The military oath of office is first and foremost to defend the U.S. Constitution against all enemies, foreign and domestic; it is not first and foremost to obey orders. Service members who believe they have been charged with a crime that they were ordered to commit should immediately contact a military law attorney.

Depending on the circumstances, a lawyer could help them show the order was lawful or that a person of common understanding would not recognize its unlawfulness.

Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC ( Email questions to The information in this column is not intended as legal advice.

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