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Thread: Unlawful Order...

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    Member Z1911's Avatar
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    Cool Unlawful Order...

    So, with all the recent publicity regarding whether or not firing missiles into Syria to "punish" Assad, I've noticed a few things:
    - Apparently, firing missiles into another country constitutes an act of war
    - Unless there is a clear, present, and imminent danger to the US or her citizens, the law requires a president to get approval from congress to initiate such acts of war
    - While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.
    - The president has also said that regardless of what congress does, he feels he has the authority to order the missile strikes

    Here's my question:
    Presuming congress does not grant him permission (likely), yet the president opts to order the missile strikes anyway (probable, but now an unlawful order), and given what LOAC (Laws of Armed Conflict) says regarding unlawful orders (and the following/carrying out thereof), at what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?

    On the presumption that most of us on this forum have the reading and comprehension capability greater than a high school graduate, I would request any responses to steer away from the "Smarter people than you are making decisions", or "You can't make that determination because you're not a lawyer". IMHO, those kind of responses are at best, condescending, and at worst, insulting.
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    Re: Unlawful Order...

    Quote Originally Posted by Z1911 View Post
    what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?
    My opinion, the very person, Secretary of Defense or JCS on down, that believes it is an unlawful order. That said, it is a bit much to expect the "button pusher" to question the legality of orders that have been through multiple layers of command. I don't think it's a matter of "they are smarter"...but rather one of trust in leadership. As lower ranking, or lower organizations, we are supposed to be able to trust those in leadership to only issue lawful orders. Especially on a subject like bombing another country. Obviously, given history, we know that sometimes unlawful order are issued and followed. <sad>

    As a complicating matter, before POTUS issues such and order, he has legal advisers review it. I do NOT want to go down the "water boarding" rabbit trail, but as an example the Bush Admin. had a ream of legal opinions about whether it was legal. Was the SrA prison guard at Gitmo supposed to buck the entire chain of command? Such a person, I would submit, doesn't have the power to stop systematic abuse. The best such an individual can do is say "I believe that order is unlawful and I will not obey"...probably at the risk of their career, if not prison time.

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    Senior Member Gonzo432's Avatar
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    Re: Unlawful Order...

    This is why DoD has so many lawyers.
    "Wrong" is one of those concepts that requires witnesses. Catbert, Evil Director of Human Resources

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    Re: Unlawful Order...

    @Z1911

    I don't think that Obama really wants to strike Syria and that is exactly why he punted to Congress. He can now blame the outcome on them regardless of what happens.

    I don't think he will defy Congress on this because it gets him out of that terrible red-line statement.

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    Re: Unlawful Order...

    Careful, this kind of thinking can get you fired.

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    Re: Unlawful Order...

    Quote Originally Posted by Z1911 View Post
    So, with all the recent publicity regarding whether or not firing missiles into Syria to "punish" Assad, I've noticed a few things:
    - Apparently, firing missiles into another country constitutes an act of war
    - Unless there is a clear, present, and imminent danger to the US or her citizens, the law requires a president to get approval from congress to initiate such acts of war
    - While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.
    - The president has also said that regardless of what congress does, he feels he has the authority to order the missile strikes

    Here's my question:
    Presuming congress does not grant him permission (likely), yet the president opts to order the missile strikes anyway (probable, but now an unlawful order), and given what LOAC (Laws of Armed Conflict) says regarding unlawful orders (and the following/carrying out thereof), at what level of the chain of events (between the oval office giving the order, and that order routing it's way down to the individual whose finger actually presses the launch button) would/could/ought some individual stand up and say "This is an unlawful order, and I'm not going to carry it out"?

    On the presumption that most of us on this forum have the reading and comprehension capability greater than a high school graduate, I would request any responses to steer away from the "Smarter people than you are making decisions", or "You can't make that determination because you're not a lawyer". IMHO, those kind of responses are at best, condescending, and at worst, insulting.
    First, I dont think the President will authorize use of force without Congress approval. All the latest info that is coming out from the WH points towards that...

    “The president, of course, has the authority to act, but it is neither his desire nor his intention to use that authority absent Congress backing him,” Deputy National Security Adviser Tony Blinken told NPR’s Steve Inskeep this morning.

    Privately, other senior administration officials have been saying the same thing for days: Absent another major development in Syria, they find it inconceivable that the president would move forward with an attack if Congress fails to authorize it.
    http://hotair.com/archives/2013/09/0...ress-votes-no/

    If Obama decides to go it alone after Congress votes no I don't see how can a service member can cite LOAC in order to not follow an order. IMO LOAC regulates how armed conflict is conducted and doesn't deal with the legality of a particular conflict. If he decides to authorize force we still need to follow that order, if he order us to start killing Syrian civilians we should not follow that order because thats a violation of LOAC.

    Thats not to say that a member can't claim conscientious objector status and be ask to be separated from service.
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    Re: Unlawful Order...

    New Poll; Majority of Americans Approve of Sending Congress to Syria: http://www.theonion.com/articles/pol...ng-cong,33752/

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    Re: Unlawful Order...

    Quote Originally Posted by Z1911 View Post

    - While early on, the president stated he had the authority to order such missile strikes, without first gaining the approval of the congress (a clear violation of the War Powers Act), he has since backtracked and is now seeking permission from congress.
    Actually, the President was right. He can send troops for up to 60 days without Congressional approval.

    From the War Powers act:

    The War Powers Resolution requires the President to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30 day withdrawal period, without an authorization of the use of military force or a declaration of war.

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    Re: Unlawful Order...

    Quote Originally Posted by Measure Man View Post
    Let's assume for the sake of argument, that Obama's order to launch a strike on Syria is illegal.

    Then, the combatant commander orders his Naval commander to execute the strike...

    The the Ship commander orders the strike....

    Then some weapons officer pushes the button...

    This is a good question...are all of the subsequent orders and the pushing of the button illegal, or only the first order given by the President? I'm voting for only the first order given is illegal...from the standpoint of the guy pushing the button, all he really knows is that his duly appointed commanding officer ordered him to attack a military target. I don't believe he has an obligation to analyze the political environment from which that order originated...in fact, to have people doing that would be quite detrimental. Maybe that order came from a classified session this guy was not privy to.

    While the excuse, "I was only following orders" is generally not a defense to war crimes...unless the strike on it's face is a war crime, i.e. a strike on a school or hospital, let's say, then I think the button pusher has a legitimate defense...it's not really his place or duty to figure out whether the POTUS is acting within constitutional authority. I don't think it's in our best interests to have every foot soldier questioning whether or not the Pres. has the authority to order the attack.
    It's tough. It's too bad (sort of) that PYB isn't around to give his thoughts on this. On one hand, should we all be fully educated on the Constitution when it comes to this sort of thing and, if yes, then should we make the decision at our level? On the other hand, we have to, at some point, trust the officers giving us the orders and assume that by the time it gets down from the CiC through the chain of command that we are good to go. It's sort of the same situation as Libya. After the 60 days we should have all realized that it was no longer a legal action. But, at that point, what move do we make?

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    Senior Member Rusty Jones's Avatar
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    Re: Unlawful Order...

    Quote Originally Posted by sandsjames View Post
    It's tough. It's too bad (sort of) that PYB isn't around to give his thoughts on this. On one hand, should we all be fully educated on the Constitution when it comes to this sort of thing and, if yes, then should we make the decision at our level? On the other hand, we have to, at some point, trust the officers giving us the orders and assume that by the time it gets down from the CiC through the chain of command that we are good to go. It's sort of the same situation as Libya. After the 60 days we should have all realized that it was no longer a legal action. But, at that point, what move do we make?
    Considering the fact that the US Supreme Court's interpretation of the Constitution is the only one that matters, there's really nothing you can do.

    As a military member, you should obey any order that does not put you in violation of the UCMJ. Many people have taken it upon themselves and refused to deploy to Iraq and/or Afghanistan, and where are they now? Sitting in prison.
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