ex-Lethality Jane: "Fun" hypothetical is if the president gives you an order to conduct an illegal action, can you still be prosecuted under UCMJ or local laws for completing that action? Can you also be prosecuted for refusing the order, because it's legal for the President to order it? Catch-22 possibilities abound.

"Fun" hypothetical is if the president gives you an order to conduct an illegal action, can you still be prosecuted under UCMJ or local laws for completing that action? Can you also be prosecuted for refusing the order, because it's legal for the President to order it? Catch-22 possibilities abound.

right. the president could order troops to suppress protesters using live fire and the supreme court would extend that absolute immunity

Yes. A president giving an unlawful order might not be subject to criminal penalty thanks to T v US, but the order can still be unlawful, so would still be subject to UCMJ

(still, extremely fucked up that this is a thought that will have to cross any JAG's mind)

At higher ranks, the Poindexter Doctrine may kick in.

Yeah, and you could still get an injunction blocking an illegal act.

I'm legitimately unsure as to what "unlawful order" even means anymore It's not murder if the president tells you to do it?

UCMJ is a federal law, so there is always a pardon anyway. Local laws, ugh. No idea. Refuse? I’d say no. POTUS is immune from giving the illegal order, but that doesn’t make the order legal. In normal circumstances I’d say the Nuremberg precedent applies. Now??

From what I'm finding, service members can be court martialed for obeying unlawful orders, and can be charged for violating local laws while on duty. If you are court martialed for disobeying an order, you can raise a defense that the order was unlawful.

I did find an example from Vietnam where an officer ordered his subordinates to massacre a village. The ones who obeyed were court martialed, the ones who refused weren't. Doesn't seem to have a limit where it comes from, as generals planned to disobey unlawful orders from Trump when he was in.

the problem here: "is the order unlawful if giving the order does not violate the law?" Can one lawfully order someone to commit an unlawful act? If they can, does refusal to commit that act constitute disobeying a lawful order, or disrespect, or conduct prejudicial to good order and discipline?

I think it's understood to mean that carrying out the order would be unlawful.

but would it be? If the order that's lawful to give but not execute is accompanied by a Presidential pardon? What if the President orders the DoJ and DoD to not prosecute anyone for executing his orders? All this shit better get figured out quick, fast, and in a hurry.

That's quite apart from there being no actual mechanism to insist an order is unlawful. My MOS (Interogation 97E/37M) dealt with that a lot; and we had stories we used in training to make it clear you had to create a line for yourself; inside the boundaries; and stick to it.

Pardons for a crime can only be given after that crime has occurred. So, even if a President promised a pardon in advance, the order would still be illegal when it was carried out.

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