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    Senior Member technomage1's Avatar
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    Following Illegal Orders?

    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?
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    Senior Member AJBIGJ's Avatar
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    Re: Following Illegal Orders?

    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.
    "The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first." ~ Thomas Jefferson

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    Re: Following Illegal Orders?

    Quote Originally Posted by AJBIGJ View Post
    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..

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    Senior Member efmbman's Avatar
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    Re: Following Illegal Orders?

    Quote Originally Posted by Bunch View Post
    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.
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    Re: Following Illegal Orders?

    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.

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    Senior Member technomage1's Avatar
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    Re: Following Illegal Orders?

    Quote Originally Posted by Juggs View Post
    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....
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    Re: Following Illegal Orders?

    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)

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    Re: Following Illegal Orders?

    Quote Originally Posted by technomage1 View Post
    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.
    Antes de que vengas a juzgarme por que escribo el inglés con errores te pregunto: Cuantos idiomas tu hablas?! Solo uno? Y vienes a juzgar mi inteligencia?! Por favor mirate en el espejo y veras en él reflejo la imagen clara de la estupidez...

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    Re: Following Illegal Orders?

    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".

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    Re: Following Illegal Orders?

    Quote Originally Posted by technomage1 View Post
    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.

    Quote Originally Posted by AJBIGJ View Post
    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.

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