UCMJ Article 88 & Social Media

[wlawr005]

Excellent article in the Spring issue of the NWCR pertinent to this issue. Though I may not speak as eloquently, I think my opinion is shared by a few...
from the article...

Kohn cites Major General John J. Pershing’s instructions
to First Lieutenant George Patton in 1916: “You must remember that when we
enter the army we do so with the full knowledge that our first duty is toward the
government, entirely regardless of our own views under any given circumstances.
We are at liberty to express our personal views only when called upon to do so or
else confidentially to our friends, but always confidentially and with the complete
understanding that they are in no sense to govern our actions.” Or in the words
of Omar Bradley, the first chairman of the Joint Chiefs of Staff, “Thirty-two years
in the peacetime army had taught me to do my job, hold my tongue, and keep my
name out of the papers.”

 

[nittany03]

There's a lot more people excited about disobeying "unlawful orders" when they don't realize the corollary. The lawfulness of the order will be determined at your court-martial. If it really was an unlawful order, you'll be acquitted. If not, stand by.

 

[Lawman]

"Oathkeepers" or whatever the hell they want to call themselves these days scare the hell out of me.

They view themselves as some sort of constitutional profit come to explain to the rest of us the true meaning of our Founding fathers and how we've all had the wool pulled over our eyes by some vast governmental conspiracy bent on Martial Law and eventually a totalitarian state.

Really what they are "advocating" and trying to educate us with is about 2 steps shy of the good ol'fashion coup d'etat. They are blinded by a deluded logic and there is almost no use in even trying to argue with them about it. We had a guy on staff in flightschool that used to have little 20-30 minute workshops during formations discussing the validity of the stand point that we as the military need to "be prepared to take action" or whatever such nonsense." I was very glad to see that guy fired out of a cannon from the Army when the higher ups finally got wind of it.

 

[squorch2]

Excellent article in the Spring issue of the NWCR pertinent to this issue.

A condensed, executive version of the article would be great, (and maybe I'll do that after I finish this paper...) but in the absence of something like that and knowing how folks' eyes glaze over at scholarly articles, I'll bring attention to the five-pronged test that Snider proposes for determining the legitimacy of military dissent:

The first is the gravity of the issue to the nation and therefore to the clients of the military profession. The second is the relevance of the strategic leader’s expertise with regard to the issue that might impel dissent. Does the issue at hand fall squarely within the scope of the dissenter’s expertise as a military professional? The third consideration is the degree of sacrifice on the part of the dissenter. Is the dissent motivated solely by a disinterested desire to serve the nation, even in the face of personal sacrifice, or does it involve a self-serving subtext, such as the advancement of the dissenter’s own professional or political ambitions? The fourth consideration is the timing of the act of dissent. Was it timed to undercut the actions or policy from which the officer wishes to dissent? Finally, is the act of dissent congruent with the prior, long-term character and beliefs of the dissenter? Does the dissent strike those who know the dissenter as uncharacteristic or atypical?

If you're looking for a primer on modern (GWOT and post GWOT) civil-military relations, I recommend Owens' book US Civil-Military Relations After 9/11: Renegotiating the Civil-Military Bargain.

 

[scoolbubba]

The "illegal orders" some seem to be fulminating about exist mostly in their heads. The SGT in question gave as an example of an order he wouldn't follow would be one to seize citizens' firearms. Anyone see that in message traffic lately?

The only example I can come up with of an unlawful order being carried out is the post Katrina weapons seizures by the New Orleans PD, with assistance for the Louisiana NG and Oklahoma NG. I'm not sure how the NG being activated by the Federal government vice the state government changes their requirements/oaths, but this is the only glaringly obvious example of an unlawful order. I'm not sure any of the gents who were activated and conducted the searches and seizures spoke out against it, so again, there's no actual court martial to challenge the lawfulness of the order as a precedent.

The Courts later found the order to be unconstitutional, and demanded the guns be returned to their owners as soon as possible. The Louisiana state legislature also passed a law forbidding the confiscation of legally owned firearms after the fact.

http://articles.boston.com/2008-10-...-second-amendment-foundation-stephen-halbrook

 

[helolumpy]

The Louisiana Guard was operating under Title 32 (State control) during Katrina.

When I was there, there were lots of non-standard things occurring and folks making up rules they thought were in the best interests of all involved.
I know the U.S. Marshals had to respond to a couple of calls of 'squatters' in some of the nicer neighborhoods, which may be why they started arresting the folks in the houses at the end but later released the folks.

The U.S. Marshals that I was working with were very concerned with the amount of weapons in and around Louisiana and the basic lawlessness that was happening everyday.

 

[Uncle Fester]

Well, there you go. You receive an extraordinary order under extraordinary circumstances. Obey or refuse the order as your conscience dictates, but you will be held accountable either way. My point holds: our courts are the arbiter of what is and is not constitutional, not the armed forces, and that's exactly what happened, even in an effed up place like Nawlins after the storm.

 

[phrogdriver]

Summary: disobey or object to what you honestly believe are unlawful orders, but expect your actions to be reviewed later. If you receive administrative punishment, then roll the bones and request court martial if you're convinced you're right. Just don't go wanking to the media if it turns out you were wrong.

This "unlawful orders" business is supposed to be for things like being told to burn down the village or machine gunning civilians, not this penny-ante New World Order black helicopter bullshit all the recent cases seem to involve. That stuff gets decided at way higher pay grades.

 

[nittany03]

Voice concern, sure. But there's such a thing as picking battles and addressing things the right way. No one wins if you throw your career away the first time some skipper misapplies the liberty risk policy, or fill in some other hypothetical.

 

[phrogdriver]

I always felt I was paid the big bucks to know the difference between a lawful order and an unlawful order (within my area of expertise) and to act accordingly.

The "unlawful order" business is not just reserved for big issues like machine gunning civilians or violating the Constitution etc. While those types of examples are much more interesting to discuss, I would suspect that the majority of "unlawful orders" grey area revolves around the more mundane administrative type issues that can still end multiple careers. I always felt an Officer was remiss in their duty to their Command if they did not voice concern over the legality of an order immediately.

How much illegal stuff were you dealing with, anyway? Are we talking "You shouldn't claim a parking ticket as a business expense," or are we talking substantial things here, e.g. embezzlement, covering up vast government conspiracies, etc.?

I've had to advise commanders on what might be termed "judgment calls" many times, but never had a commander propose something actually illegal, except maybe minor provisions of the 4790 or 3710, which were generally just borne of ignorance, vice intent to do something wrong.

Those aren't the kinds of things that would make one go "I REFUSE to carry out that order, sir!"

 

[squorch2]

"Is this the hill you want to die on?" comes to mind.

 

[squorch2]

Pfft, just take that shit straight to Navy Crimes.

"COs RUN AMOK - FORCING FRAUD, WASTE AND ABUSE - SHOULD WE FIRE MORE?"