Why the “Orders Project” is troubling
Recently the media (see here and here) reported on a move by several civilian attorneys and former judge advocates to offer what they describe as “second opinions” to “military and National Guard members who worry they may be given unlawful orders if deployed during protests or disputes over next month’s elections.” I find this effort, called the “Orders Project”, troubling as it might be misunderstood by military members. So let’s unpack it a bit.
The law of military orders
I’ve written about the law of military orders before “Have Presidents ever given the military illegal orders? Yes; the surprising list…and more about the law of military orders” and “The Danger of Tampering with America’s Nuclear Command and Control System.” In this post I’ll take some text from those essays to reiterate a few key points, and I’ll highlight some additional concerns relevant to the Orders Project.
Orders can still be lawful even if they offend an individual’s personal views and beliefs
Some military members, not to mention members of the public, may not realize that military law does not brook disobedience even if the troop concerned sincerely thinks the orders are very unwise or ill-considered – if they are otherwise lawful.
Why? Consider Professor Peter Feaver’s observation in Armed Servants: Agency, Oversight, and Civil-Military Relations, his classic study of civil-military relations:
In a democracy, civilians have the right to be wrong. Civilian political leaders have the right to ask for things in the national security realm that are ultimately not conducive to good national security. The military should advise against such policies, but the military should not prevent those policies from being implemented. (Emphasis added).
In fact, even if an individual judges a lawful order to be immoral, it still must be obeyed. The Manual for Courts-Martial provides that “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” (The Manual, by the way, is not an invention of President Trump; it is an Executive Order prescribed by law, and this particular provision has been in it for as long as I can remember).
Orders may be inferred to be lawful
It is, of course, absolutely true that the military must not obey an unlawful order. That irrefutable principle is not unique to this or any particular administration. That said, the Manual implicitly recognizes the military’s responsibilities to be, as the Supreme Court put it, constantly prepared to “fight or be ready to fight wars should the occasion arise.”
Consequently, it’s entirely foreseeable that the exigencies of military situations may not present much – or even any – opportunity to question orders. Accordingly, the Manual puts the obligation this way:
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. (Emphasis added.)
Patently illegal orders
The issue of “patently” illegal orders was discussed by the all-civilian Court of Military Appeals (CMA) in the case of Lt. William Calley. (The CMA was the predecessor to today’s similarly all-civilian Court of Appeals for the Armed Forces (or CAAF).
Calley was the infamous commander in the Vietnam era My Lai massacre incident.The court cited with approval this quote from Colonel William Winthrop (1831-1899), who the Supreme Court calls the “The Blackstone of Military Law”:
But for the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness . . . (Emphasis added.).
The court in Calley concluded that even if an officer received an order to kill innocent women and children, such an order would be palpably illegal. It found that “[w]hether Lieutenant Calley 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.”
In the Calley case it was easy to determine that the supposed order was patently illegal, but in rapidly developing situations where even momentary hesitation can mean death and defeat, the presumption of legality is essential. And the Supreme Court seems to recognize this. In the landmark 1974 case of Parker v. Levy, the Court cited with approval the 1890 case of In Re: Grimly for the proposition that:
“An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier.” (Emphasis added.)
Can the lawfulness of orders be litigated?
Military members also should not expect to be able to contest the lawfulness of an order before a court-martial jury (called a “panel” in military parlance). The Manual states the “lawfulness of an order is a question of law to be determined by the military judge” as opposed to the jury.
Furthermore, in the 2001 case of U.S. v. New, the CAAF dealt with the issue of a soldier who was convicted of disobeying an order to “wear a uniform which included United Nations (U.N.) accoutrements” despite his claim that the order was unlawful.
In noting the propriety of the military judge determining the lawfulness of the order, CAAF held that the “lawfulness of an order, although an important issue, is not a discrete element of an offense under Article 92.” Thus, it seems that the prosecution may need not prove the lawfulness of the order beyond a reasonable doubt.
Orders may require immediate obedience
As already indicated, military members should not expect that they can take time to deliberate as to whether or not to obey and order. The Manual states:
Time for compliance. When an order requires immediate compliance, an accused’s declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order that does not explicitly or implicitly indicate that delayed compliance is authorized or directed. (Emphasis added.)
Similarly, in the 1983 case of Chappell v. Wallace the Supreme Court noted:
The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex, with no time for debate or reflection. (Emphasis added.)
Do “Military personnel have a right to consult counsel” before obeying an order?
The Orders Project claims that “Military personnel have a right to consult counsel,” but that is misleading.
Military personal do have a right to consult counsel in certain situations. The Army’s Criminal Law Deskbook (2019) describes those circumstances as essentially when someone is “questioned (for law enforcement or disciplinary purposes) by a person subject to the UCMJ who is acting in an official capacity, and perceived as such by the suspect or accused.” In addition, the Criminal Law Deskbook also correctly says that” [u]nder the Sixth Amendment, a right to counsel is triggered by initiation of the adversarial criminal justice process.”
Obviously, the mere receipt of an order does not typically trigger an entitlement to counsel. In short, there is no right to consult with counsel prior to obeying an order. Taking unauthorized time to consult with counsel while delaying obedience to an order might not only itself be a serious insubordination, but also dangerous to other soldiers and even innocent civilians in operational settings where mere seconds can mean life or death.
Are there issues of legal ethics?
Unlike military lawyers who can practice anywhere, ethics rules applicable to civilian lawyers not employed by the government (to include retired military lawyers) typically means they need to be licensed in the jurisdiction where they are rendering legal advice or services. This rule, the American Bar Association (ABA) Model Rules of Professional Conduct says in its commentary, that “limit[s] the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons.”
This could be particularly important for members of the National Guard personnel who, as is most common, are called to duty by state governors in civil disorder situations, but who are not federalized. Their actions – particularly law enforcement type actions – are likely governed by state law.
It is not clear how the Orders Project intends to address this concern, or how it plans to address the issue of legal malpractice with respect to any advice rendered.
The necessary familiarity with the applicable local law is an ethical imperative. The ABA Model Rules of Professional Conduct say:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Apart from possible ethical issues, there are practical problems in relying upon attorneys outside the military. Would such a person have enough situational awareness – and access – to know all the circumstances surrounding a particular order that may impact its lawfulness? In lots of military situations, even the recipient of an order may not have been informed about all the many details of the commander’s decision-making process (which, in some instances, may be classified).
This is why military law permits troops to rely on the fact that all but patently illegal orders may be inferred to be lawful. At the same time, it warns that orders are disobeyed at the member’s “peril.” Military superiors have no obligation to detail the rationale behind a specific order before requiring immediate compliance. The fact that a civilian lawyer may advise that a particular order is illegal will not necessarily excuse disobedience of it if it turns out to be lawful.
The Orders Project conceives itself as “a second line of resources for military personnel.” While the Project’s members are willing to give second opinions, one of the founders insisted that the “first thing a member who has questions should be doing is picking up the phone and calling his or her servicing JAG office or legal assistance office.”
This is somewhat confusing since military legal assistance offices normally dispense personal legal advice only regarding civil matters, not about potential criminal culpability for acts like disobeying an order. That kind of counseling normally comes from military defense attorneys who are specially organized, trained and equipped to provide advice about criminal law matters.
It is, however, possible to properly get a “second opinion” in a legal matter from another lawyer, but the attorney needs to observe the protocol that may be required by his or her licensing jurisdiction. The ABA Model Code of Professional Conduct says this:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
The ABA’s commentary on this rule includes the following:
This Rule contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.
It is unclear how the Orders Project intends to proceed in this respect.
Conflicts of interest
Similarly, it isn’t clear how the Project intends to deal with possible conflicts of interest among troops seeking advice. It is a mistake to think that simply because several individuals are seeking advice about the same issues broadly speaking, that they are also similarly-situated in terms of their legal interests and responsibilities.
For example, because of rank differences, a soldier seeking a “second opinion” about the legality of an order may not have exactly the same interests as another, more junior soldier seeking advice about the same general matter from the same lawyer or group of lawyers. This means the Project will need to have a process in place to avoid such conflicts before taking confidences from the soldier.
Also unknown is the philosophy the Project intends to bring to the effort. Perspectives of attorneys within and outside the armed forces may differ. In a 2008 Stanford Law Review article written with now Brigadier General Linell Letendre this issue was explored a bit in the context of the defense of Guantanamo detainees. Here’s an extract (citations omitted):
Few would debate the principle that zealous representation must always center on the best interests of the particular client represented and not on the aggrandizement of the counsel or the counsel’s causes. More specifically, the lawyer must act solely in the interest of his or her client and not necessarily in pursuit of other interests the attorney may wish to address. As a result, the promotion of a partisan interest could prove problematic. Is this occurring? Consider, for example, that a detainee defense counsel said he took the case because he wanted to “‘participate in an effort to ‘rein in’ President Bush.”
According to the New York Times, the ACLU and NACDL expressed a similar theme. Specifically, “[t]hey . . . made clear that the lawyers provided by the groups were expecting to use the detainees’ cases to expose what they see as flaws in the Bush administration’s war-crimes system.”
As the Times observed:
In some cases there has been friction between the civilian and the military lawyers. One lawyer who is involved in the military defense effort said . . . there could be tensions over the extent to which legal efforts focus on defending individual detainees and how much they focus on challenging the entire military commission system.
Defense counsel advocating larger agendas could face knotty ethical questions. The challenge and critique of lawyers balancing their personal beliefs with ethical obligations to clients is not new to the public-interest field. In criminal defense practice especially, the interest of the client must predominate. In our view, this can be done zealously and within the law.
I don’t have any information to say the Project intends to focus on anything but individual clients (they state they are nonpartisan, and are enlisting former military lawyers), but it is notable how the perspective of still-serving military attorneys may differ from those outside the armed forces.
Limits to advice
No lawyer, military or civilian, can counsel deliberating breaking the law, even if he or she – and the client – vigorously disagree with it. (Recall from above that under military law “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order”).
The ABA Model Rules of Professional Conduct say: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal….” In the military context this takes special significance because U.S. criminal law (18 U.S.C. § 2387) says that it is an offense punishable by up to ten years in prison for anyone:
“with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States…advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States… (Emphasis added.)
However well-intentioned, the Orders Project will need to authentically reveal what it can deliver and not, and focus on the details. This brief post has suggested a few concerns, but there may be others. To me, it’s unfortunate that the Project will inevitably put uncertainty into the minds of the troops about their leaders at the very moment they may be called upon to perform duty under difficult and extremely time-sensitive circumstances.
The fact is that both active duty and National Guard troops have been used domestically many times without any issue as to the lawfulness of the orders they were given, even when severe violence occurred. (See also: The Role of Federal Military Forces in Domestic Disorders, 1945–1992.)
Though several presidents – including President Obama – have issued what have been later determined to be unlawful orders, I am not aware of any troop being convicted for obeying what was later determined to be an unlawful order. It is almost unheard of for disciplinary authorities to second guess after-the-fact obedience to facially valid orders.
However, precipitous action in the absence of orders can lead to tragedies. Recall the horrifying 1970 Kent State ‘massacre’ where, apparently without awaiting orders from their leaders, National Guardsmen fired upon students during an antiwar demonstration, killing four and wounding nine others.
It is true the soldiers, who said they thought their lives were in danger, were not convicted on criminal charges arising from the incident. Nevertheless, it also seems clear that the terrible event could likely have been avoided with better training and strict fire discipline. I agree with the conclusion of the President’s Commission on Campus Unrest that found that “[e]ven if the guardsmen faced danger, it was not a danger that called for lethal force.”
Still, an organized, highly-disciplined and well-trained force can bring calm to chaotic circumstances. This is why the military can be the best option in certain cases of domestic disorders. The public realizes it, and wants the military to step in on occasion. (See e.g., this from last summer: “58% Of Voters Support Using Military To Help Police Control Protests”).
President Eisenhower was certainly justified in sending paratroopers to Little Rock in 1957 to help desegregate the schools. While their use of fixed-bayonets to prod protesters is not what we hope would be needed to help to ensure the rule of law was observed, the show of force did succeed in restoring order and protecting the rights of Black Americans.
Moreover, as disturbing as today’s events may be, we should remember for perspective that the Nation suffered severe violence in the not too distant past. For example, in “a single eighteen-month period during 1971 and 1972 the FBI counted an amazing 2,500 bombings on American soil, almost five a day.” Yet the Republic survived.
Military members have every reason to be confident in their commanders. Polls show that Americans rank military officers very highly in terms of honesty and ethics, and also believe they are among those professions most likely to act in the national interest. It’s also noteworthy that the US military is an institution in which the public has most confidence.
No doubt contingency plans are being scrubbed to ensure that they are fully lawful as I am sure all concerned want. Such plans are routinely vetted by government civilian and military attorneys.
That said, no unlawful order should be obeyed, but short of one being patently illegal (or somehow the servicemember knows for sure it is illegal), troops can rely upon the inference of lawfulness.
Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
[This post has been update to clarify the 1970 Kent State incident.]