American Soldiers Are Required to Disobey Unlawful Orders

Jim Macdonald writes:

Making Light: ATTENTION US MILITARY PERSONNEL: You are not required to obey an unlawful order.

You are required to disobey an unlawful order.

You swore an oath to support and defend the Consitituion of the United States against all enemies, foreign and domestic.

The Constitution states (Article VI):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Here is article 3, the common article, to the Geneva Conventions, a duly ratified treaty made under the authority of the United States:

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

1. The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Article 3 of the Geneva Conventions is straightforward and clear. Under Article VI of the Constitution, it forms part of the supreme law of the land.

You personally will be held responsible for all of your actions, in all countries, at all times and places, for the rest of your life. "I was only following orders" is not a defense.

What all this is leading to:

If you are ordered to violate Article 3 of the Geneva Conventions, it is your duty to disobey that order. No "clarification," whether passed by Congress or signed by the president, relieves you of that duty.

If you are ordered to violate Article 3 of the Geneva Conventions, this is what to do:

1. Request that your superior put the order in writing.
2. If your superior puts the order in writing, inform your superior that you intend to disobey that order.
3. Request trial by courtmartial.

You will almost certainly face disciplinary action, harassment of various kinds, loss of pay, loss of liberty, discomfort and indignity. America relies on you and your courage to face those challenges.

We, the people, need you to support and defend the Constitution. I am certain that your honor and patriotism are equal to the task.

This post may be quoted in full. A linkback would be appreciated.

Comments

[David Lloyd-Jones]

This, of course, is another "Impeach George Bush; impeach him now" squibs.

In particular, one of the offshoots of the El Gharaib affair was the revelation that US officers were ordering the holding of women who enquired about relatives possibly held prisoner as hostages, in the expectation that this would make it possible to capture their menfolk.

[save_the_rustbelt]

That is technically correct, but the average age of front line infantry soldiers is about 20, they are tired, stressed and being shot at, and they have been trained to follow orders so their fellow soliders don't die unnecessarily.

Is is easy to courts-martial privates, accountability has to start at the top.

That is a problem, of course.

[Sebastian Holsclaw]

"Article 3 of the Geneva Conventions is straightforward and clear."

Except it isn't. For example the Supreme Court of the United States and the International Committee of the Red Cross disagree about whether or not Afghanistan was a "case of armed conflict not of an international character". That is a rather important point, because Article 3 is only applicable in cases of armed conflict not of an international character. We know what the Supreme Court's answer is now, but you certainly can't expect your average soldier to have known in advance.

And the whole point of having pre-analysis of techniques is to make it easier for decisions on what constitutes a) and c) to be made at a higher than individual level.

Which is not to defend the Bush interpretations at all--some of them are clearly wrong. But asking your average private to make a call that Senators fight about strikes me as unfair in all but the most awful cases.

[dubblblind]

With our MBA coward-in-chief in charge this is the quintessential corporate command standard. Higher-ups create impossible responsibilities for their underlings. If you fail to comply you will be disciplined and your reputation destroyed. If do comply and get caught it will be claimed that no one told you to act that way and you will be disciplined and your reputation destroyed. The little people should not be made to bear the burden of correcting this high level corruption, like Rusty said.

[pat]

Agree with the comments from rustbelt and dubblblind. Nevertheless, given the current environment, it is useful for a soldier to know that they are supposed to disobey unlawful orders, therefore, they do have a choice.

[andres]

Weeelll, the simple fact is that Jim McDonald's post is warranted under the circumstances-- that we have a President and Congress that feel they can violate a treaty commitment by passing blatantly illegal legislation "reinterpreting" the terms of that treaty. And that sends a chill up my spine: a potential conflict of duties for US soldiers like the one that led up to 1861.

Rustbelt has a good point, but I think that Jim McDonald's post is not addressed to 20-year old privates but to the older, more mature officers leading them in the field. They're the ones who, collectively, say where the armed forces go.

[dale]

I wonder what the history of this looks like? Surely such refusals to obey orders have happened at different levels in the US military.

I remember the helicopter crew that was ready to open fire on fellow US soldiers at My Lai. They weren't asked to do something illegal, but they were ready to shot those who were following illegal orders.

[otto]

Treaties aren't the supreme law of the land without regard to other legislation. They can be displaced/given restrictive interpretation or just flat out repealed by acts of congress.

[prostratedragon]

In an earlier time, an enlisted officer in his very early 20s were known to refuse orders that violated Geneva, and to insist later that he'd do it again despite having paid a price in unofficial retaliation---new assignments well below expensively-acquired training, etc. That young seargent, of course was partly protecting privates and a corporal.

It's a very hard thing to ask someone to do, but probably no harder than asking them to put their lives on the line, and part of getting honor-code behavior like that is to _expect_ it.

[me]

I disagree with rustbelt. Having been drafted during the Viet Nam war, in our training it was DRILLED into us what we were obliged to do if captured, name, rank, serial number, escape if possible. We were also DRILLED about how to treat captured combatants.

Don't believe me, but if you ever visit the late Col. Hacks site you will see he preached the same thing. You do not obey unlawful orders. It is in managements best interest to issue lawful orders, because in war, fragging is the great equalizer.

[anne]

http://www.nytimes.com/2006/10/03/opinion/l03detain.html

What We Lose in the Detainee Bill

To the Editor:

The detainee treatment bill passed by Congress is the most ominous step thus far in our progress down that slippery slope that leads to an authoritarian government.

We have come closer to the day when, in an atmosphere of fear of "terrorists," anyone who opposes administration policy can be alleged to be an "unlawful enemy combatant" who has "purposefully and materially supported hostilities against the United States" and be detained indefinitely without the protection of habeas corpus.

We will then have become what we claim to be fighting against.

Renee Blank
Lakeville, Conn., Oct. 1, 2006

[anne]

http://www.nytimes.com/2006/10/03/opinion/l03detain.html

What We Lose in the Detainee Bill

To the Editor:

The detainee treatment bill recently passed by Congress will allow the president to label anyone an "unlawful enemy combatant," detain prisoners indefinitely and shield the decision from review by the courts.

There is very little daylight between this and "disappearing" people, as practiced by South American dictators and military regimes.

I disagree with those who say that the president is not asking any sacrifices of Americans in the war on terror. He is asking us to give up the liberties that were our birthright.

Val Ondes
South Salem, N.Y., Oct. 1, 2006

[anne]

There were 34 Senate votes against the dreadful detainee bill, 32 Democrats, Independent Jeffords, Republican Chafee. This is what courage is about and what believing in liberty is about. What standing for liberty ought to mean is standing for immediately leaving Iraq, for ending a lunatic tragic occupation-colonization of another country. We must leave Iraq immediately and gain a sense of who we ought to be again.

[anne]

http://www.nytimes.com/2006/10/03/opinion/l03detain.html

What We Lose in the Detainee Bill

To the Editor:

The Sept. 30 front-page news analysis about the detainee treatment bill passed on Friday says, "How the measure will look decades hence may depend not just on how it is used but on how the terrorist threat evolves."

Are there no longer any relevant moral principles independent of circumstances?

Nathan Basik
Winston-Salem, N.C., Sept. 30, 2006

[anne]

We simply do not recognize what fear is doing to our perspective, and how it is undermining our principles. The Iraq war has been a tragedy in many ways, not least of all morally. We must leave Iraq, immediately.

[anne]

http://www.nytimes.com/2006/10/03/opinion/l03detain.html

What We Lose in the Detainee Bill

To the Editor:

As your Oct. 1 front-page article points out, the basis for the disputes over the detainee treatment "started with the fact that the president had explicitly rejected the Geneva standard in February 2002."

More than four years ago, President Bush flatly rejected human rights — the foundation of a free society — and he forever disgraced our nation.

Our actions must be guided by our own values, not those of terrorists. Torture is not an American value, and neither is imprisoning someone without due process.

Darren Hardy
Santa Barbara, Calif., Oct. 1, 2006

[anne]

I am tired of hot shot analysts complaining about the war and occupation these 3 1/2 and not understanding that, yes, we sure as heck could have left Iraq 3 1/2 years ago and sure can leave Iraq immediately now. Yes; now, we could leave Iraq immediately for the sakes of our soldiers, for our sakes and for the sakes of Iraqis. No pretense about doing what is morally wrong right. There is no right about Iraq, only leaving.

[me]

" not understanding that, yes, we sure as heck could have left Iraq 3 1/2 years ago and sure can leave Iraq immediately now. "

Funny thing isn't it anne, we defeated Hitler in less time.

[snuh]

sadly, otto is probably right. although everything about this sux, i do not think talk of disoboying unlawful orders is helpful.

if "unlawful" means "contrary to the domestic law of united states", i do not think an order to torture under this law would be unlawful (whether or not it is unlawful in the sense of being contrary to international law (and it is), seems irrelevant, as the soldier has sworn to uphold only american law).

article VI of the constitution does make a duly ratified treaty the "supreme law of land", for domestic law purposes this only puts a treaty on the same footing as legislation. and, on ordinary principles of statutory interpretation, if there were an inconsistency between a treaty provision and a later statute, the later statute would be considered to have impliedly repealed the provision.

[wkwillis]

snuh
You will note that the administration agreements with other countries do, in fact, over rule domestic American law. So do treaties. At least, they do when it involves issues important to the administration's friends.
Which is what all the fuss about NAFTA is about.
So which is it? Can the US congress write a law that the US courts are obliged to uphold if it conflicts with increased corporate profits under NAFTA?

[andres]

snuh, otto: We'll have to let the courts and legal brains argue about it, but my impression is that international treaties ratified by the US are absolutely meaningless if their interpretation can be easily amended by subsequent legislation. i.e. an international treaty becomes the supreme law of the land and stays that way unless the Senate passes a law that explicitly withdraws the US from that treaty. Since the Senate's approved bill does not explicitly reject the Geneva Conventions or formally announce US withdrawal from the Conventions, any "reinterpretation" of the Conventions that it attempts is, imho, unconstitutional.

But again, I'm not a fossilized lawyer in a black robe, so my opinion doesn't really count in that sense. Oh well.

[anne]

http://www.nytimes.com/2006/10/04/washington/04victory.html

October 4, 2006

In Bill’s Fine Print, Millions to Celebrate Victory
By THOM SHANKER

WASHINGTON — Even as the Bush administration urges Americans to stay the course in Iraq, Republicans in Congress have put down a quiet marker in the apparent hope that V-I Day might be only months away.

Tucked away in fine print in the military spending bill for this past year was a lump sum of $20 million to pay for a celebration in the nation’s capital “for commemoration of success” in Iraq and Afghanistan.

Not surprisingly, the money was not spent.

Now Congressional Republicans are saying, in effect, maybe next year. A paragraph written into spending legislation and approved by the Senate and House allows the $20 million to be rolled over into 2007.

The original legislation empowered the president to designate “a day of celebration” to commemorate the success of the armed forces in Afghanistan and Iraq, and to “issue a proclamation calling on the people of the United States to observe that day with appropriate ceremonies and activities.” ...

[anne]

Still, though, be grateful, only $20 million to celebrate victory. So, can be just leave Iraq immediately and "commemorate the success" anyway since leaving would be a success as such? Then we can bring the tears or party favors as we wish.

[anne]

So, a trillion dollar war and occupation-colonization highlighted by a $20 million celebration of success. Imagine the triumphant sense of happiness. I am all tingly.

[anne]

http://www.nytimes.com/2006/10/03/opinion/l03woodward.html

The Iraq War, From the Inside

To the Editor:

Bob Woodward revealed that Henry A. Kissinger has been advising President Bush about Iraq, telling him that "victory is the only meaningful exit strategy."

Can anyone deny that Iraq is the new Vietnam? Both wars were based on false information; both cost the lives of thousands of American troops and tens of thousands of innocent foreign citizens; and both wars lost the support of the American public.

Now, we see Mr. Kissinger's hand in both wars.

President Richard M. Nixon had a chance to exit Vietnam in 1970, but kept our troops there several more years based largely on Mr. Kissinger's advice.

How much longer will American troops remain in Iraq?

Iraq will remain a quagmire whether our troops remain there or not — just like Vietnam. Let's bring our troops home and bring this national nightmare to an end.

Eddie Konczal
Monroe Township, N.J., Sept. 30, 2006

[anne]

http://select.nytimes.com/2006/10/04/opinion/04dowd.html

October 4, 2006

Don't Pass the Salted Peanuts, Henry
By MAUREEN DOWD

Tom Lehrer said that political satire was rendered obsolete when Henry Kissinger won a Nobel Peace Prize for prolonging the Vietnam War.

But even the inventive Lehrer could never have imagined that Dr. Strangelove would get a second chance to contribute to misleading the public about a military catastrophe in a misunderstood land — a do-over in scarring the American psyche and reputation in profound ways.

Yet, as Bob Woodward reveals in "State of Denial," the sequel to "Bush is a Genius," Mr. Kissinger has been one of the few trusted outside advisers that W. has listened to on Iraq. The administration has shaped its policy to hew to the 83-year-old Unwise Man's belief that the only way to beat an insurgency is to stick it out, no matter how many American kids and foreign civilians die.

Especially if elections are coming up. As the historian Robert Dallek, who is writing a book on Nixon and Kissinger, notes, "Kissinger was complicit in using foreign policy to try to save Nixon during Watergate."

Bob Haldeman wrote in his diary on Dec. 15, 1970, using "K" for Kissinger and "P" for President Nixon: "K came in and the discussion covered some of the general thinking about Vietnam and the P's big peace plan for next year, which K later told me he does not favor. He thinks that any pullout next year would be a serious mistake because the adverse reaction to it could set in well before the '72 elections. He favors, instead, a continued winding down and then a pullout right at the fall of '72 so that if any bad results follow they will be too late to affect the election. It seems to make sense."

Thirty-five years later, Mr. Kissinger, the consummate fawner, was once more able to sway a president with faux deference. Dr. K encouraged W. to play the tough guy on the war, even though he'd never gone to war himself.

In September 2005, Mr. Woodward writes, W.'s head speechwriter, Mike Gerson, visited Mr. Kissinger and received a lecture declaring that the only exit strategy for Iraq was victory and a copy of the diplomat's "salted peanut memo" from 1969, warning against resisting pressure to withdraw troops from Vietnam: "Withdrawal of U.S. troops will become like salted peanuts to the American public; the more U.S. troops come home, the more will be demanded." ...

[anne]

There we have it, just when we thought our policy in Iraq could not be more bizarre it turns it it really has been and is more bizarre. If only I had a better imagination. There we have Henry Kissinger setting another domino theory strategy in place. Remember from Iraq, they'll soon be coming to California and this during the baseball playoffs, sports yet, oh my, Californians are playing I think. Thank you, Henry.

[anne]

For those who thought "Catch-22" caught the sense of insanity that comes with war, they ain't seen nothing remotely close to what Iraq has been about. Who could ever capture the comedy and pathos? Thank you, Henry.

[anne]

http://www.nytimes.com/2006/10/04/opinion/l04powell.html?ex=1160625600&en=8609e3c95fb1a2df&ei=5070&emc=eta1

Powell’s First Loyalty

To the Editor:

You write that according to recent accounts, former Secretary of State Colin L. Powell did not threaten to resign from the Bush administration over policy differences because to do so “would betray the ethic of the loyal soldier he felt he was.”

It is ludicrous that Mr. Powell, a former general, did not understand that his first loyalty was to the Constitution and to the young people in uniform, not to a particular president.

Alan Posner
East Lansing, Mich., Oct. 1, 2006

[andres]

"Yet, as Bob Woodward reveals in "State of Denial," the sequel to "Bush is a Genius,"..."

Heh. While Maureen Dowd's writing style is often too flippant for my tastes, she occasionally writes something like the above column which makes want to propose to her (horrors...). Thanks, anne, and keep posting those op-eds.

[greensmile]

I'm sure glad the army has been able to enlist mostly legal scholars and recruits otherwise able to follow the [correct] arguments made here. That way we are sure to spare our nation from grave danger of committing war crimes.

[andres]

greensmile, while there may be a certain percentage of our soldiers who like to torture Arabs=Muslims=Terrorists, I'm naive enough to think that the majority will be so appalled by the idea that they will start to consider the legal aspect. Just because one lacks a college education does not mean one also lacks emotional intelligence and the desire to learn.