PDA

View Full Version : Following Illegal Orders?



technomage1
11-12-2013, 11:28 PM
We all know (or we should know) that "I was only following orders" is not an accpetable defense in the case of war crimes. And I believe we all know that shooting prisoners or raping civilians, etc is wrong and we would not follow an order to that effect.

However, what about less clear cut issues? What if you get an order you feel is wrong and possibly illegal, say an order to give someone government materials out of stock or to accomplish an action you think is against the regulations? What are you supposed to do then? Is there a mechanism for checking this out, say by going to legal? Can you delay following the order until you get legal guidance? What if you follow the order and it turns out to be illegal? Who takes the heat, the enlisted or the officer who gave the order - or both?

Nothing like this is going on with me, mind, but I have seen people faced with quandries like this in the past and it's not something that we get training on (outside of the war crimes area). Typically the answer I've seen is "I disagree, but on your head be it" to the officer and the order is followed. And I have seen the enlisted get in trouble for it, which bothers me. We're trained to follow orders. How do we burn the guy who voiced his objections if we have no mechanism for figuring out if the order is legal or not?

AJBIGJ
11-13-2013, 12:56 AM
Not the expert on all the services per se. If such an event were to occur and a person voiced their objections and the officer were to make it a "direct order", my recommendation would be to ask for it in writing with their signature on it. If I am not mistaken you cannot be legally prosecuted for disobeying a direct order until you have it in writing by that officer. I am not 100% certain that in doing so whether your ass is 100% covered, but at the very least the senior individual would be held culpable and subject to worse penalties than yourself it were brought into the the disciplinary process.

Juggs
11-13-2013, 01:08 AM
We once had an NCOIac tr to get us to trip a bush from the top rung of a ladder. We told him that it was unsafe and labeled as such on the ladder. He said he didn't care and to have it done. We said no.

Not really illegal but unsafe order.

Never really been ordered to do anything illegal that I can remember.

technomage1
11-13-2013, 02:02 AM
trip a bush

Huh? I'm guessing trim a bush? Not trying to be a wise guy, nor a spelling Nazi because I've misselled words too, but this sure put a funny picture in my head....

imnohero
11-13-2013, 02:02 AM
The less clear-cut ones are what people probably deal with more often than not. Sign this, process that, take a shortcut, skip that step in the T.O. My answer is, if you don't demonstrably know that the order is illegal, follow it.

For example: My squadron super asked (then ordered) me to [I'll leave out the specific details]. I said, "Sir, you can not legally order me to do that, it's specifically forbidden by the AFI." He got PISSED and went off on a rant about "who the hell am I to tell him I won't follow an order" blah blah blah. I said I wouldn't [...] and we can go get the AFI and talk to the commander. He said to get out of his office. I never heard another word about it.

The only reason I was able to do that was because I was 100% positive that the AFI clearly said "don't do that". Bottom line, if you got a regulation, Tech Order, Directive, or Instruction to back you up, at your fingertips...your probably pretty safe in saying you won't. If you just think the order might be illegal, and don't know for sure, better off just following it.

One of the basic tenants of the chain of command is that people are not supposed to issue illegal order, and subordinates are supposed to be able to trust that their leaders will not do so. On the other hand, I pretty much took the attitude of "trust but verify" and made sure I knew the rules better than they did. (let's just say I had some really really crappy NCOs and CCs in my early career, and learned this lesson early)

Bunch
11-13-2013, 03:01 AM
We all know (or we should know) that "I was only following orders" is not an accpetable defense in the case of war crimes. And I believe we all know that shooting prisoners or raping civilians, etc is wrong and we would not follow an order to that effect.

However, what about less clear cut issues? What if you get an order you feel is wrong and possibly illegal, say an order to give someone government materials out of stock or to accomplish an action you think is against the regulations? What are you supposed to do then? Is there a mechanism for checking this out, say by going to legal? Can you delay following the order until you get legal guidance? What if you follow the order and it turns out to be illegal? Who takes the heat, the enlisted or the officer who gave the order - or both?

Nothing like this is going on with me, mind, but I have seen people faced with quandries like this in the past and it's not something that we get training on (outside of the war crimes area). Typically the answer I've seen is "I disagree, but on your head be it" to the officer and the order is followed. And I have seen the enlisted get in trouble for it, which bothers me. We're trained to follow orders. How do we burn the guy who voiced his objections if we have no mechanism for figuring out if the order is legal or not?

When I was CE and now as a recruiter I have dealt with instances of being instructed to do something that is in direct conflict to what the AFI says. I politely remind superiors, flightmates and/or customers why such actions can't be done and usually the matter is dropped.

garhkal
11-13-2013, 05:44 AM
Not the expert on all the services per se. If such an event were to occur and a person voiced their objections and the officer were to make it a "direct order", my recommendation would be to ask for it in writing with their signature on it. If I am not mistaken you cannot be legally prosecuted for disobeying a direct order until you have it in writing by that officer. I am not 100% certain that in doing so whether your ass is 100% covered, but at the very least the senior individual would be held culpable and subject to worse penalties than yourself it were brought into the the disciplinary process.

That's assuming the officer in question WILL put it in writing and will also be held accountable.


The only reason I was able to do that was because I was 100% positive that the AFI clearly said "don't do that". Bottom line, if you got a regulation, Tech Order, Directive, or Instruction to back you up, at your fingertips...your probably pretty safe in saying you won't. If you just think the order might be illegal, and don't know for sure, better off just following it.

While i think the same, i have known officers (especially those working with Flag commands) or chiefs who 'order you to ignore the written instruction to "Take care" of their fellow chief/officer..

efmbman
11-13-2013, 01:01 PM
When I was CE and now as a recruiter I have dealt with instances of being instructed to do something that is in direct conflict to what the AFI says. I politely remind superiors, flightmates and/or customers why such actions can't be done and usually the matter is dropped.

I hear you on that one. I spent 6 years in medical recruiting and it seemed that every day it was a challenge to simply follow the rules. The pressure to make mission is usually behind the "rule bending". My First Sergeant was very shady and would often tell me (over the phone) how to game the process to slip in an extra nurse. Even though I would question the legality of such actions (and he knew I was right) he would get pissed and tell me I was not a team player... or I was not acting in the best interest of the applicant. Then he would tell me that if I would not do it, he would reassign the nurse to a different recruiter and let them get the credit. I was very happy he would since the SSN of the recruiter is forever tied to the application of any recruit enlisted or officer. I don't think being recalled to AD for a court-martial is something I want to be a part of.

garhkal
11-13-2013, 08:06 PM
Exactly. Oftne those who DO speak up and challenge the orders given, get slammed for "Not being a team player" or "Not seeing the bigger picture", or my fave "Stepping out of one's paygrade".

Stalwart
11-14-2013, 04:24 PM
Can you delay following the order until you get legal guidance? What if you follow the order and it turns out to be illegal? Who takes the heat, the enlisted or the officer who gave the order - or both?

Outside of being ordered to do something that would be a crime, my best advice would be if someone is being ordered to disobey a regulation or instruction and they have voiced disagreement with the direction, to write a memorandum for the record and deliver it to the chain of command or the JAG.

As far as delaying following the order, that is a judgment call based on the situation. Is danger to life an issue, damage to property etc.? I have seen people purposely blow off a stupid order, and the consensus was that the order was stupid but that the individual in question didn't have the authority to blow it off either. Unlike the typical "just follow orders" mentality, decentralized decision making requires people in more junior positions to observe, decide and act. I was far from being trained to be an automaton, but also had to be very aware of what was in my authority to decide and what was not.


If I am not mistaken you cannot be legally prosecuted for disobeying a direct order until you have it in writing by that officer.

That is not correct, you can absolutely be prosecuted for disobeying a verbal order -- the catch is proving the order was given which usually involves witnesses.

--

You do have a good point that people should be able to trust that the orders they are given are legal. Today I think I have seen some people who disagree with a policy or standard and then attempt to 'barracks lawyer' a way around the issues rather than (if there really is a problem with the system) trying to earnestly fix the problem.

AJBIGJ
11-14-2013, 04:28 PM
Outside of being ordered to do something that would be a crime, my best advice would be if someone is being ordered to disobey a regulation or instruction and they have voiced disagreement with the direction, to write a memorandum for the record and deliver it to the chain of command or the JAG.

As far as delaying following the order, that is a judgment call based on the situation. Is danger to life an issue, damage to property etc.? I have seen people purposely blow off a stupid order, and the consensus was that the order was stupid but that the individual in question didn't have the authority to blow it off either. Unlike the typical "just follow orders" mentality, decentralized decision making requires people in more junior positions to observe, decide and act. I was far from being trained to be an automaton, but also had to be very aware of what was in my authority to decide and what was not.



That is not correct, you can absolutely be prosecuted for disobeying a verbal order -- the catch is proving the order was given which usually involves witnesses.

--

You do have a good point that people should be able to trust that the orders they are given are legal. Today I think I have seen some people who disagree with a policy or standard and then attempt to 'barracks lawyer' a way around the issues rather than (if there really is a problem with the system) trying to earnestly fix the problem.

I think you're probably right in this regard, and makes more sense, it would be sort of "he said/she said" about how the order was worded if it wasn't in writing and there were no witnesses to observe it.

Stalwart
11-14-2013, 04:30 PM
I think you're probably right in this regard, and makes more sense, it would be sort of "he said/she said" about how the order was worded if it wasn't in writing and there were no witnesses to observe it.

Yeah, and I have seen a couple people try and fail to plead ignorance on how they understood or interpreted something (one case was almost comical -- the defense would have been that this person was practically mentally incapable).

He said / she said is pretty much what it comes down to with no witnesses ... which can work out good and bad.

Absinthe Anecdote
11-14-2013, 04:52 PM
Stalwart

I've done the memoranda for record in a disagreement with a civilian boss and it worked wonders. It wasn't an issue of an illegal order, but more a question of efficiency. I found that writing my concerns down got more consideration than expressing them vocally. Plus, it had the added benefit of putting a paper trail on the matter that led right back to him.

It pissed my boss of initially, but he got over it.

Stalwart
11-14-2013, 06:54 PM
I found that writing my concerns down got more consideration than expressing them vocally. Plus, it had the added benefit of putting a paper trail on the matter that led right back to him.

:) I think a good part of the Memorandum for the Record as well is the removal of emotion from the discussion (if written well.) Verbally, people tend to get emotional in disagreements, in professional writing we tend to tone it down so the facts of the matter stand on their own.


It pissed my boss of initially, but he got over it.

A professional will get over it and won't take a disagreement personally (unless the issue is made personal.)

sharkhunter
11-16-2013, 01:19 AM
My work center faced this exact issue last year. To save costs, we were told that when we go TDY to our "additional duty location" were ordered to stay somewhere that is against AF and DoD regs (an MOD fire house). We quoted AFIs stating exactly how this is illegal and we quote DoD/JFTR. When we showed it to our chain, it led nowhere. Our CC told us "Deal with it." The more we showed how illegal it was, how it demoralized us, and how it affected the mission, the more the chain pushed back and basically told us to "drop it." When the new CC arrived, that practice changed immediately.

technomage1
11-16-2013, 01:56 AM
My work center faced this exact issue last year. To save costs, we were told that when we go TDY to our "additional duty location" were ordered to stay somewhere that is against AF and DoD regs (an MOD fire house). We quoted AFIs stating exactly how this is illegal and we quote DoD/JFTR. When we showed it to our chain, it led nowhere. Our CC told us "Deal with it." The more we showed how illegal it was, how it demoralized us, and how it affected the mission, the more the chain pushed back and basically told us to "drop it." When the new CC arrived, that practice changed immediately.

Now this is one of the issues where you'd have been well within your rights to go to the wing king or the IG. You found the references, showed it to the chain and they ignored you.

People like that shouldn't be in command of a clown car let alone a squadron. They're the type that go on to be the ones hiding war crimes or threatening subordinates or abusing travel funds.

LogDog
11-17-2013, 01:59 AM
The idea that an order is legal only if it is in writing is a myth. If you suspect an order is illegal you should inform the person giving the order why you think it is wrong. If they persist in expecting you to carry it out then you can tactfully inform them you'll be meeting with the commander or IG to inform them of the situation. In this case, you better have your facts straight and be ready to defend them because if you're wrong then the next time it happens they won't take you serious if it were to happen again.

As others have said, it's best to get someone else to witness the illegal order.

LogDog
11-17-2013, 02:00 AM
The idea that an order is legal only if it is in writing is a myth. If you suspect an order is illegal you should inform the person giving the order why you think it is wrong. If they persist in expecting you to carry it out then you can tactfully inform them you'll be meeting with the commander or IG to inform them of the situation. In this case, you better have your facts straight and be ready to defend them because if you're wrong then the next time it happens they won't take you serious.

As others have said, it's best to get someone else to witness the illegal order.