US Military: Please To Stop Breaking Us, Thx

[Lum]

Ex-commander of Iraq forces goes public with concerns (http://www.nytimes.com/2007/10/13/washington/13general.html)

General Sanchez said he was convinced that the American effort in Iraq was failing the day after he took command, in June 2003. Asked why he waited until nearly a year after his retirement to voice his concerns publicly, he responded that it was not the place of active-duty officers to challenge lawful orders from the civilian authorities.

General Sanchez, who is said to be considering writing a book, promised further public statements criticizing officials by name.

Meanwhile staff officers question who failed where (http://www.nytimes.com/2007/10/14/us/14army.html)

Much of the debate at Leavenworth has centered on a scathing article, “A Failure in Generalship,” written last May for Armed Forces Journal by Lt. Col. Paul Yingling, an Iraq veteran and deputy commander of the Third Armored Cavalry Regiment who holds a master’s degree in political science from the University of Chicago. “If the general remains silent while the statesman commits a nation to war with insufficient means, he shares culpability for the results,” Colonel Yingling wrote.

For the sake of argument, a question from the reporter was posed: If enough four-star generals had done that, would it have stopped the war?

“Yeah, we’d call it a coup d’etat,” Colonel Fontenot said. “Do you want to have a coup d’etat? You kind of have to decide what you want. Do you like the Constitution, or are you so upset about the Iraq war that you’re willing to dismiss the Constitution in just this one instance and hopefully things will be O.K.? I don’t think so.”

Healthy signs, IMHO.

[MattKeil]

he responded that it was not the place of active-duty officers to challenge lawful orders from the civilian authorities.

That's kind of the key to this whole thing, isn't it?

[Lizard_King]

That's kind of the key to this whole thing, isn't it?
From your "A Ha!" phrasing, I can only assume you don't know what the military means by a lawful order.

[Hetzer]

That's kind of the key to this whole thing, isn't it?

Yes and no, at least here in germany you HAVE TO dismiss an order if it is unlawful say execute a pow for example... if you do it because you are ordererd to you make yourself a criminal....

BUT if your ordererd to fire the guns of your tank to hit an enemy thats an order that you cannot dismiss... furthermore if your gerneral in chief gives the order to invade a country things get a little hazy:
Is there the ok from the un? Good your ready to roll...
it isnt? hmm, is there a clear yes from the bundestag (our parliament)? than you might be ok but more propably than not your hosed because you have a clear order that isnt sanctioned with international law.

At least for germany im pretty sure that we will never invade a country without the needed un orders.

[polar boar]

So the existence of the UN does prevent Germany invading any more countries. Who would've thought?

Errr, I mean...
Since Sanchez came out publicly with his statement, I guess it would be harder for the US military or government to sidetrack him into irrelevance like they reportedly did with so many military personnel that expressed concerns about the war in Iraq.

[AaronSofaer]

That's kind of the key to this whole thing, isn't it?

Yeah, except that the orders in question were lawful.

[Jason McCullough]

Correct me if I'm wrong here, but under international law aggressive war is illegal, right? Uh, and we did that with Iraq, right> I know no one's about to indict the country that rules the world, but technically.....

[antlers]

Correct me if I'm wrong here, but under international law aggressive war is illegal, right? Uh, and we did that with Iraq, right> I know no one's about to indict the country that rules the world, but technically.....

Cue Daniel Morris talking about Sec. Council Res. 1441...

[Grifman]

Correct me if I'm wrong here, but under international law aggressive war is illegal, right? Uh, and we did that with Iraq, right> I know no one's about to indict the country that rules the world, but technically.....

Are we going to be indicted for the Bosnian intervention? That wasn't sanctioned by the UN, nor was the US attacked. And I don't think the Kosovo intervention was approved by the UN either due to Russian opposition. And again, the US was not subject to attack.

So I think we have problems if UN approval and being under threat are prerequistes for war because I think a number of people opposed to Iraq for these reasons probably approved of the Bosnian and Kosovo interventions.

[AaronSofaer]

Correct me if I'm wrong here, but under international law aggressive war is illegal, right? Uh, and we did that with Iraq, right> I know no one's about to indict the country that rules the world, but technically.....


As I understand it, insert IANAL disclaimer here, while it may be wrong of the US to invade, it was still legal orders, because Congress had authorized the President to do it.

I mean, not much falls under the scope of illegal orders, orders that you are required to disobey. Invading a country when your legislature has authorized said invasion most assuredly falls under the scope of orders that you obey, as much as you may complain and question at your superior.

Obviously, I'm not as against the Iraq War as you are, so we may disagree, but I feel that it would have been wrong for those in uniform to refuse to obey the order. Or, if they felt they had to, they should accept the consequence; most likely imprisonment.

Just as obviously, a number of categories of orders would be different stories. But always you should remember to consider the angles.

Shoot a POW? Obviously wrong? What if he's had a field trial (are those still legal? I know they used to be). What if he isn't a legal combatant? I don't know the answers to a lot of those things.

The concept of illegal orders wasn't meant to be a cop-out. It was meant to prevent the "just following orders" excuse from post-WWII Germans and their allies. Using it on something this broad and vague seems ... intellectually dishonest and also something that robs the concept of its strength.

[Lizard_King]

Correct me if I'm wrong here, but under international law aggressive war is illegal, right? Uh, and we did that with Iraq, right> I know no one's about to indict the country that rules the world, but technically.....
That's a ludicrous definition of lawful order that not even you would want in practice with the US government. We remain a sovereign nation, and a lawful order remains specifically constrained to certain conditions, none of which have to do with the UN in the sense you are suggesting. What you and the other posters finger wagging about this are prompting is policy making on the part of the US military. You know, a coup.

[Jason McCullough]

That was actually an honest question, but bully for you for not treating it as such, I guess.

So a lawful order is "illegal under our own domestically passed laws?" That sounds fine. I guess it's not news no one really pays attention to "treaties we sign are also enforceable law inside the United States", and that pretty much explains all the mysteries of what is and isn't prosecuted. That's the practical definition - I can't come up with a formalist rationalization for it.

What you and the other posters finger wagging about this are prompting is policy making on the part of the US military. You know, a coup.

Oh yes, it'll be all the fault of those powerless critics when the fascists take over.

[Lizard_King]

That was actually an honest question, but bully for you for not treating it as such, I guess.

So a lawful order is "illegal under our own domestically passed laws?" That sounds fine. I guess it's not news no one really pays attention to "treaties we sign are also enforceable law inside the United States", and that pretty much explains all the mysteries of what is and isn't prosecuted. That's the practical definition - I can't come up with a formalist rationalization for it.
That's right. (US constitution + President + Congress)/Common sense= lawful. At no point within reason is it up to the Military to define (except in an immediate, practical sense in particular situations) what treaties legitimize the actions ordered by that combo.

I'm sure there's plenty of situations where the UN would be countermanded by a European government as well as far as their military was concerned. Then again, since the UN generally orders along the lines of inertia, I suppose there's not much of a conflict. The French seemed to have no problems invading African countries on their own, and more power to them.

Also, I think your definition of honest question needs some work.


Oh yes, it'll be all the fault of those powerless critics when the fascists take over.
That statement is so loaded I'm not going to mess with it. What you are reaching for in your apparent desire to have the US military deny the elected leaders of our country their warmaking and other powers is a recipe for military independence that you can't possibly really want. Given you would obviously find that unacceptable since you're not a fascist, it can only be inferred that you have made the above "honest question" along with the original two without having given it much thought or simply as One More Incendiary Thing It's Totally Fair Game To Say Because It's Bush.

I really have a tough time believing, since at the least we both read Harper's, you don't understand the implications of what you were saying.

[Hawkeye Fierce]

I gotta agree with LK here - the basis for war may have been immoral and possibly illegal, based on your point of view, but the actual order of "go invade Iraq" wasn't an illegal order by any stretch of the imagination.

The fiasco in Iraq is an epic political failure, not a military one.

[Sebmojo]

I gotta agree with LK here - the basis for war may have been immoral and possibly illegal, based on your point of view, but the actual order of "go invade Iraq" wasn't an illegal order by any stretch of the imagination.

The fiasco in Iraq is an epic political failure, not a military one.

Yes - Jason, you're asking for the Army to decide what the country should do? There's a word for that, and it's got a silent 'p'.

[bago]

Jack Bauer would beat the LA out of the law, leaving us with a lonely W to defend this nation with. Won't you help
?

Do your part today, freak out a darkie now.

[Jason McCullough]

.....your apparent desire to have the US military deny the elected leaders of our country.....

What the hell are you talking about? People were discussing what is and isn't a lawful order; I brought up the fact that aggressive war is unlawful; Iraq is an example of that, an unjustified war like Bosnia (with a nastier outcome); we do it quite a bit; however it's never even brought up as an issue, so the whole subject of unlawful orders is strange. Unless you include "international law is meaningless for the hegemon," which clears things up quite a bit.

This somehow means I'm in favor of the military ignoring orders?

[Lizard_King]

What the hell are you talking about? People were discussing what is and isn't a lawful order; I brought up the fact that aggressive war is unlawful; Iraq is an example of that, an unjustified war like Bosnia (with a nastier outcome); we do it quite a bit; however it's never even brought up as an issue, so the whole subject of unlawful orders is strange. Unless you include "international law is meaningless for the hegemon," which clears things up quite a bit.

This somehow means I'm in favor of the military ignoring orders?
That's exactly what it means. That is precisely what you are looking for, if you are not in favor of the US military adhering strictly to the formula I denoted above. The whole concept of unlawful orders is strange to you because you are unfamiliar with lines of work where doing what you're told is not optional in the vast majority of scenarios. Having the US military decide which presidential orders and congressional authorizations are valid for themselves, with respect to international criteria, is probably one of the worst ideas I've heard you advocate yet.

[Jason McCullough]

If you'll carefully review the actual words I've written above, you'll I have not stated I think the military should disobey orders that conflict with international law. I didn't intend to imply it, either.

[Aeon221]

Yes - Jason, you're asking for the Army to decide what the country should do? There's a word for that, and it's got a silent 'p'.

Poop?


Would you like to live in Turkey? I wouldn't... and not just because all the Turks I've met try to sell me crap. Military needs to stick to what it does best: obeying.

[Unicorn McGriddle]

If you'll carefully review the actual words I've written above, you'll I have not stated I think the military should disobey orders that conflict with international law. I didn't intend to imply it, either.

Pfft, yeah, international laws, who needs 'em? It's not like they're REAL laws that anybody should follow.

[Lizard_King]

If you'll carefully review the actual words I've written above, you'll I have not stated I think the military should disobey orders that conflict with international law. I didn't intend to imply it, either.
What the hell are you talking about? People were discussing what is and isn't a lawful order; I brought up the fact that aggressive war is unlawful; Iraq is an example of that, an unjustified war like Bosnia (with a nastier outcome); we do it quite a bit; however it's never even brought up as an issue, so the whole subject of unlawful orders is strange. Unless you include "international law is meaningless for the hegemon," which clears things up quite a bit.
The only way an aggressive war's lawfulness would be relevant to the discussion is if you feel violating international law constitutes following an unlawful order in that context. Your choice is to be wrong or insane as far as this issue is concerned; you'll note I'm not the only one that picked up on that, and the simple answer is to say "oh, I hadn't thought of that, my bad". Not to pretend you knew what you were talking about when you (yet again) skipped down the path of anything goes when it comes to talking about Bush.

He's bad, but he doesn't justify you being stupid as a response.

[Hawkeye Fierce]

Pfft, yeah, international laws, who needs 'em? It's not like they're REAL laws that anybody should follow.
I do believe we should follow international laws, but that's not the point - an "illegal order" in the military justice sense has a very rigidly defined context, and it has that context for a reason. Breaking a treaty is ultimately a political decision, regardless of its illegality, and the military should not involve itself in political decisions.

This goes both ways, though. Just as the military leadership shouldn't second guess an order to go to war based on political reasons, neither should they act as spokespeople in the political process leading up to war. I don't think the military was squeaky clean on that one, in this case.

[Mordrak]

I understand the separation between the military organization and political organization (and submitting the military to the political). What doesn't make much sense to me though, is given that, how any soldier can be prosecuted for acting on unlawful orders, especially in the post-WW2 context. So was it technically illegal (by German law) to commit genocide in Germany during WW2? Because if it was legal, then any soldier ordered to commit genocide (or mass killings) would be acting under a lawful order, correct? Or am I missing something?

Also, what kind of symbolic actions do military leaders have open to them? Can they voluntarily step down (and let someone else fill that role) as conscientious objectors to the orders? Or is that unthinkable/impossible for any general?

These are honest questions and probably stupid ones, but sometimes my wee brain needs some clarification.

[Chris Nahr]

As far as I know the Nazi atrocities were not technically illegal under German law. That is why the Nuremberg trials relied on the newly invented concept of broadly defined "crimes against humanity", i.e. actions that are considered criminal even if they were legal at the time.

This breaks the ancient rule of "nulla poena sine legem", by the way, and has the nasty side effect that prosecution becomes arbitrary. The Nuremberg trials ignored any atrocities committed by the victors and attempted no systematic prosecution of lower-ranking German soldiers participating in these "crimes against humanity".

[Mordrak]

As far as I know the Nazi atrocities were not technically illegal under German law. That is why the Nuremberg trials relied on the newly invented concept of broadly defined "crimes against humanity", i.e. actions that are considered criminal even if they were legal at the time.

This breaks the ancient rule of "nulla poena sine legem", by the way, and has the nasty side effect that prosecution becomes arbitrary. The Nuremberg trials ignored any atrocities committed by the victors and attempted no systematic prosecution of lower-ranking German soldiers participating in these "crimes against humanity".

Thanks, though it just further adds to my confusion in these matters. No offense Aaron and I'm certainly not trying to be argumentative, but if the concept lawful/unlawful orders came about to combat claims of "I was just following orders," it seems it just creates more legal wiggle room for soldiers by allowing a political organization to define as legal that which the concept was created to protect against in the first place. It's like the concept of a legal combatant versus a non-legal combatant. Personally I find the distinction absurd as far as human rights (and POW status) is concerned because all it does is create the same so called wiggle room by appealing to legal authority. What about the human rights of a non-legal citizen then... or even, in the case of racism or bigotry, non-legal humans. It seems like by creating these so called boundaries all we are doing is creating more loopholes for the very behavior we are trying to prevent (or at least hold accountable for).

Edit: Your explanation is clear Chris. I didn't mean to imply your particular explanation added to my confusion, more so just the additional info. You certainly right that it at the very least seems arbitrary if lower-ranking soldiers who were knowingly involved in such atrocities were not prosecuted for crimes against humanity.

[Huzurdaddi]

I'm glad someone brought up Nuremberg. So just to be clear, do Lizard King and his cohorts believe that the Nuremberg Principles (http://en.wikipedia.org/wiki/Nuremberg_Principles) are a sham? By logical extension do they think that the Nuremberg trials were a sham? Finally, do they think, that from a practical perspective, that Chairman Mao was correct when he said: "Political power grows out of the barrel of a gun" (extended to global hegemony), or perhaps "Might makes Right"?

[AaronSofaer]

I'm not a cohort, asshole.

Basically, you're right, there is a limit to "it's your duty to obey all lawful orders". That's a matter for personal decision, and you will, if you disobey an order, get whatever penalty is established in that situation. And if you don't disobey an order you feel is evil, then you're a bad person! So weigh your options and make your decision consciously.

Then if you were right, you'll be vindicated/freed when the revolution comes along. Or forgotten. Such is life.

[Hawkeye Fierce]

Huzurdaddi, what the hell are you talking about? The Nuremberg trials have exactly nothing to do with the discussion at hand, except to the extent that they influenced the drafting of the Universal Declaration of Human Rights and the Geneva Convention, and even that's pretty tangential. I don't think the idea that the military as a whole can't just say "no" to the broad political process of war is really all that controversial.

For the record, I don't think the Nuremberg Trials were a sham at all, but I believe they were unique to the situation, they were largely a political process, and they demonstrate one of the great weaknesses of international criminal law - it's only as powerful as the weight of the nations behind it. One might also note that a great number of the defendants were politicians, not military leaders (though admittedly the line was rather fuzzy in Nazi Germany) and that the crimes as defined by the tribunal were either largely political in nature, or concerned specific military crimes such as the execution of civilians or POWs. Those exceptions would of course be things like the SS Einsatzgruppen and the like, which falls pretty clearly under the purview of "if my commanding officer tells me to murder civilians in cold blood, perhaps I should say no."

[Lizard_King]

I'm glad someone brought up Nuremberg. So just to be clear, do Lizard King and his cohorts believe that the Nuremberg Principles (http://en.wikipedia.org/wiki/Nuremberg_Principles) are a sham? By logical extension do they think that the Nuremberg trials were a sham? Finally, do they think, that from a practical perspective, that Chairman Mao was correct when he said: "Political power grows out of the barrel of a gun" (extended to global hegemony), or perhaps "Might makes Right"?
I believe your post is a sham. I believe only you would be stupid enough to derive a crime against humanity from the military responding to a lawful order given by the commander in chief and approved by congress.

I would also use your post to illustrate to Jason exactly why he's treading in fairly irrational territory with the unlawful order tangent. Given that unlike you, he is not a gibbering moron, it should do wonders to illustrate my point.

[Jason McCullough]

The only way an aggressive war's lawfulness would be relevant to the discussion is if you feel violating international law constitutes following an unlawful order in that context.

.....or you were curious what was really meant by "lawful order." This isn't the first time you declared me an idiot or insane because I didn't have one of the Lizard King Approved Range of Positions, though, so I guess I continue to lose. Mordrak and Chris are actually discussing what I was wondering about, for what it's worth, rather than calling me names.

[Nick Walter]

Mordrak and Chris are actually discussing what I was wondering about, for what it's worth, rather than calling me names.

What exactly where you wondering about? I've seen a lot of people wander onto different tangents on this thread so I think it's a little silly to point to anyone and say "That's not what I'm talking about. Neener neener!" At least clarify what your point is.

If you are wondering what the definition of "lawful order" is, at least in the US military context it's fairly clearly defined. While it might be amusing to wonder how interntational law and the laws of various countries interact in various hypothetical scenarios I'm not sure what it has to do with anything.

[Huzurdaddi]

I believe your post is a sham. I believe only you would be stupid enough to derive a crime against humanity from the military responding to a lawful order given by the commander in chief and approved by congress.


Thanks for being clear. You think that it is lawful since it was enacted by the current global hegemony. Simply put, might makes right in your books.

[AaronSofaer]

Thanks for being clear. You think that it is lawful since it was enacted by the current global hegemony. Simply put, might makes right in your books.


No, you're just an idiot.

[Jason McCullough]

If you are wondering what the definition of "lawful order" is, at least in the US military context it's fairly clearly defined.

Yes, I was wondering what is and isn't a lawful order, following up on what Keil said. Specifically, it seems a little odd that obeying an order to commit genocide or violate something in the Geneva Conventions is prosecuted, but fighting an aggressive war, among other international law things we've stepped on, aren't.

That "lawful order" is entirely what is or isn't in the UCMJ (right?), but international law is more of a political outrage outrage constraint than law, explains this. Right?

[Nick Walter]

Yes, I was wondering. Specifically, it seems a little odd that genocide or violating the Geneva Conventions aren't lawful orders and are prosecuted, but fighting an aggressive war, among other international law things we've stepped on, aren't. That international law isn't really treated as "law" as much as an outrage constraint explains this.

I guess that was just obvious to me, sorry if I was a little snappy on the topic. International law serves its purpose and has its place but is a bit misnamed. It's more convention and norm and practice than real law. So international law is really an unrelated topic to what a US soldier would consider a lawful order, only the misnomer makes it seem a related topic.

[Lizard_King]

Thanks for being clear. You think that it is lawful since it was enacted by the current global hegemony. Simply put, might makes right in your books.
It has nothing to do with the reign of any hegemon. It has everything to do with the way the military of any sovereign nation ultimately operates: beholden to the laws of that country as interpreted by its political leaders. The only thing being a superpower has to do with it is how often you are likely to run afoul of the conventions and agreements that are improperly known as international law.

Yes, I was wondering what is and isn't a lawful order, following up on what Keil said. Specifically, it seems a little odd that obeying an order to commit genocide or violate something in the Geneva Conventions is prosecuted, but fighting an aggressive war, among other international law things we've stepped on, aren't.

That "lawful order" is entirely what is or isn't in the UCMJ (right?), but international law is more of a political outrage outrage constraint than law, explains this. Right?
More or less, yeah. I have to admit I am stunned at what you don't find obvious sometimes. As a side note, you do remember the somewhat interesting discussion about why a military coup in the US is unlikely (http://www.harpers.org/archive/2006/04/0080995), right?

Given your extensive googling skills, it ,might surprise me you did not go straight to the horse's mouth. Except, of course, the description itself is clear as mud as unless you take it in a military context as designed for military people.
(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.
Beyond the authority is the key phrase. As in, in violation of rules of engagement or treatment of prisoners. It is not meant to create a theoretical framework for a military coup, and I don't know anyone in the military who defines it as such except as a joke. As Brendan suggested earlier, this does leave plenty of room for servicemen to refuse to torture prisoners or anything of the sort, if they are so inclined, and means they are liable at least in an abstract sense for the consequences of their actions. At no reasonable point does it leave the serviceman, regardless of rank or billet, with the option to disobey the order to go to war, regardless of what the UN has decided on the issue. Nick's clarification of the international law misnomer is spot on.

EDIT: phrasing