US soldier refuses deployment to Iraq on grounds that the war is illegal

[Redleg]

From New's Appeal - the applicable part of the determination of Lawful orders

Presumption of Orders Lawfulness
An order is presumed to be lawful. W. Winthrop, Military Law and Precedents 297 (2d ed. 1920 Reprint) [hereinafter Winthrop]. A soldier disobeys an order "on his own personal responsibility and at his own risk." See Winthrop, at 576; MCM, Part IV, para. 14c(2)(a)(i). Appellant contested the orders legality both at trial and on appeal. Appellant bears the heavy burden of showing that the orders were illegal. United States v. Smith, 21 U.S.C.M.A. 231,45 C.M.R. 5, 8(1972).

As this court observed and reemphasized in United States v Rockwood, 48 M.J. 501 (Army Ct. Crim. App. 1998):


An individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors.

For there would be an end of all discipline if the seamen and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their opinion of the Presidents and United Nations intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised.
Rockwood, 48 M.J. at 506 (quoting Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 403, 13 L.Ed. 1036 (Dec. Term, 1851)) (emphasis added) (footnote omitted).

Unless the order requires an obviously illegal act, or is obviously beyond the issuers authority, the servicemember will obey the order:


Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.
Rockwood, 48 M.J. at 506 (quoting United States v. Calley, 22 U.S.C.M.A. 528, 543, 48 C.M.R. 19, 28 (1973) (quoting Winthrop, at 296-297)). "The success of any combat, peacekeeping, or humanitarian mission, as well as the personal safety of fellow servicemembers, would be endangered if individual soldiers were permitted to act upon their own interpretation" of constitutional, presidential, congressional or military authority, and orders issued pursuant to such authority. Rockwood, 48 M.J. at 506-507.

Moreover, as stated in McCall v. McDowell, 1 Abb. 212 (Cir. Ct. D. California 1867):


The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.

2) Political Questions and Nonjusticiability
The military judge correctly determined that the question of the lawfulness of the FYROM UNPREDEP mission was a nonjusticiable political question. This court will respect both the Presidents powers as well as the powers of the nations elected representatives in Congress. Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990). See also Baker v. Carr, 369 U.S. 186, 217 (1962); Huet-Vaughn, 43 M.J. at 115; Rockwood, 48 M.J. at 507.

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