The Army: A Profession of Arms

[jmm99]

But ....

I'm attaching a pdf snip of 4 pages from the 2010 Crim-Law-Deskbook_V-2.pdf (available from CLAMO; navigate from here for the whole manual), which covers Lawfulness of Orders (A through E in the attached snip):

XI. THE LAWFULNESS OF ORDERS.

A. Presumption of Lawfulness. Orders from superiors requiring the performance of military duties are presumed to be lawful. MCM, pt. IV, ¶ 14c(2)(a)(i); United States v. McDaniels, 50 M.J. 407 (C.A.A.F. 1999) (order to not drive personal vehicle after diagnosis of narcolepsy); United States v. Nieves, 44 M.J. 96 (C.A.A.F. 1996) (order prohibiting discussions with witnesses); United States v. New, 55 M.J. 95 (C.A.A.F. 2001) (order requiring soldier to wear United Nations blue beret and insignia).
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(B through D provide specifics)
....
E. Litigating the Issue of Lawfulness of the Order. Lawfulness of an order, although an important issue, is not a discrete element of a disobedience offense. Therefore, it is a question of law to be determined by the military judge. MCM pt. IV, ¶ 14c(2)(a). United States v. Jeffers, 57 M.J. 13 (C.A.A.F. 2002); United States v. New, 55 M.J. 95 (C.A.A.F. 2001); But see United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007) (while the lawfulness of an order is a question of law to be determined by the military judge, submitting the question of lawfulness to a panel is harmless error when the accused fails to rebut the presumption of lawfulness).

Now a question for you all (not just Mark) after reading through the snip - how many service members have the professional competence to determine whether an order is constitutionally lawful ?

Regards

Mike