Over on Just Security Christopher Fonzone has a recent post that’s a mostly helpful summary and introduction to his longer American Constitution Society (ACS) Issue Brief entitled What the Military Law of Obedience Does (and Doesn’t) Do.  Allow me to differ with him on a few points based on my own recent analyses related to this topic (here and here), as well as my experience as a military lawyer.

Part of Mr. Fonzone’s post could cause serious misunderstandings.  Specifically, he says that military law “makes clear that members of the military have a dual obligation to both obey ‘lawful’ orders and disobey ‘manifestly’ or ‘patently’ illegal ones.”  Actually, military law requires disobeying of all unlawful orders, whether or not they are “manifestly” illegal or not. I think the confusion arises because of how a legal inference operates in military law.

Here’s what the Manual for Courts-Martial (an executive order authorized by 10 U.S.C. §836) says about obedience to orders in ¶14 b(2)(a)(i):

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. (Italics added)

Put another way, there’s an inference of legality for all but “patently” illegal orders.  That is not, however, the same thing as implying that even orders known to be illegal can be obeyed so long as they are not “manifestly” or “patently” illegal.  To the contrary, actual knowledge of the illegality would overcome the inference, and obligate the military member to disobey the order.

As to what may or may not be “patently illegal”, Rod Powers points out that:

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.” (Italics in original).

It is important to note, however, that disobedience of an order that is not “patently illegal” is done at the subordinate’s “peril.”  If it turns out to be legal, the subordinate might be held accountable for the disobedience.  Additionally, orders that a particular individual might consider to be unwise or even immoral aren’t necessarily illegal.  In ¶14 b(2)(a)(iv) the Manual warns that: “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”

In his longer ACS Issue Brief, Mr. Fonzone quotes my piece in The Conversation wherein I say: “Any order to specifically target civilian family members who are not directly participating in hostilities is simply a nonstarter for today’s military.”

Unfortunately, he omits mention of the very important discussion that follows in that essay wherein I explain that there could be circumstances where civilians not ordinarily targetable under the law of war may nevertheless be subject to the use of force.  In particular, I point to a footnote (¶ 18.18.3, fn 225) in the Obama-era Department of Defense Law of War Manual that explains how belligerent reprisal may permit the targeting of civilians under very limited circumstances.

That manual quotes a 1987 statement of Judge Abraham Sofaer, then legal advisor to the U.S. State Department. Sofaer said that the U.S. would not sign on to the elimination of reprisals in Protocol 1 to the Geneva Conventions because “[h]istorically, reciprocity has been the major sanction underlying the laws of war.”

Sofaer added if the prohibition on reprisals against civilians (set forth in Article 51(6) of Additional Protocol I) came into force for the U.S., an “enemy could deliberately carry out attacks against friendly civilian populations, and the United States would be legally forbidden to reply in kind.”  He warned that to “formally renounce even the option of such attacks … removes a significant deterrent that presently protects civilians and other war victims on all sides of a conflict.”

To emphasize, I do not suggest that the stringent requirements for reprisal exist today with respect to the family members of terrorists, but I merely want to point out that the law of military orders is more complex and nuanced than it may appear.  (Moreover, as I also explain in The Conversation essay, international human rights law may conceivably permit the use of force against civilians not lawfully targetable under the law of war.)

Another distorting aspect of Mr. Fonzone’s discussion is that it is framed almost exclusively within the context of the current President.  As I’ve said elsewhere, several Presidents (and probably all) have given the military what are now considered to be unlawful orders.  These include such luminaries as Presidents Adams, Lincoln, Roosevelt and Obama.

To his credit, in his longer piece Mr. Fonzone concedes that President Trump has said he wouldn’t give the military an illegal order.  However, because it is so rarely even mentioned, let’s look at what the Wall Street Journal reported in March of 2016:

Mr. Trump, in a statement to The Wall Street Journal about his views on harsh interrogation of terror suspects, said he would “use every legal power that I have to stop these terrorist enemies. I do, however, understand that the United States is bound by laws and treaties and I will not order our military or other officials to violate those laws and will seek their advice on such matters.”

He added, “I will not order a military officer to disobey the law. It is clear that as president I will be bound by laws just like all Americans and I will meet those responsibilities.”

To my knowledge, Trump has pretty much adhered to that position with respect to orders he’s given the armed forces.  Having said all this, I very strongly agree with Mr. Fonzone ultimate conclusion, which is well expressed in his longer piece:

In the end, relying on the military to disobey orders is not the way to prevent unwise or questionable national security practices. Indeed, there is no legal silver bullet to this end. Rather, the best hope is for other institutional actors to exercise their constitutional authorities to change the Nation’s course or do what they can to convince the president of the rightness of their views.

Amen!

5 Responses to “Clarifying the Law of Military Orders: Charles J. Dunlap, Jr., responds to Christopher Fonzone”

  1. Former AF Capt says:

    Sir, does this hearken a new, regular contributor to CAAFlog?

  2. Charlie Dunlap says:

    Thanks for reading the post!  As to your question, if I think I can add value to CAAFlog readers, I’m happy to submit something to Zach for consideration. 
    CAAFlog is a tough neighborhood in that there are so many readers who are extremely knowledgeable,  but I hope to bring something fresh to the discussion from time to time.   One of things that I like about CAAFlog and that distinguishes it from academic and other blogs, is that there ares so many readers who have actually practiced law, and who have trial experience.  You may be surprised that in academia, there are many professors who have limited or no practice experience, and that shapes the discussion differently than what you see on CAAFlog.
    Anyway, thanks again!

  3. Tom Booker says:

    Thank you, General, for the thoughtful piece.  I add a couple cents’ worth (I hope).
     
    “Reprisal,” for those who’ve not had the benefit of a TJAGSA education, is an act which would otherwise be unlawful under the law of armed conflict done in response to another belligerent’s act that was also a violation of the law of armed conflict.  Decision to commit a reprisal is rightly left to the commander in chief of the armed forces, as it is a political decision at its heart.
     
    All this discussion of reprisal and law of armed conflict is nice, but it does not fit neatly into the world where non-state actors are the ones who are committing the various atrocities complained of.  In a world where states (the contracting parties, for example) are responsible for bad acts, the concept of reprisal has some currency; in a world where non-state bad guys are doing the bad stuff, it sounds more like vengeance.
     
    And we can discuss retorsion on another occasion (think expelling consular staff).
     
    Respectfully, LTB

  4. Charlie Dunlap says:

    Tom,
    Excellent!!!!  I hope you do write something on retorsion, as it is an important but often misunderstood concept. 
    You might want to take a look at Mike Newton’s essay on reprisal in the context of non-state actors.  Controverial?  You bet!
    Anyway, your larger point is also an important one: in a world where reciprocity has collapsed as a pillar of LOAC compliance, to what extent (if any) is the entire architecture of LOAC undermined?  I’d be extremely interested in your and CAAFlogers ideas about that.
    Thanks!!!  

  5. Vulture says:

    When reciprocity was last practiced in any measure, WWII strategic bombing raids, we weren’t facing adversaries with several hundred million people in the population.  Now, they wouldn’t likely be willing to take that kind of thing laying down.  For instance, one of the big reasons to open markets in China was that we could ostensibly sell one can of Coke a day to about a billion people.  So they beat that plow-shear back into a sword, and then its a billion people angry over tooth decay, and armed.
     
    Larger local populations reach a critical mass sooner to form an adherence to clan, sect, or tribal identities.  So the impact of the state is less compelling in LOAC.  Equally, it is harder to identify the offending party to engage in reciprocity.  On the other hand, the guy with the MOAB isn’t hard to identify at all.