Justification: Obedience to Orders

courtmartialdefenselawyers10.58.44 2Orders of military superiors are inferred to be legal. United States v. Cherry, 22 M.J. 284 (C.M.A. 1986). However, a defendant is entitled to the defense where he committed the act pursuant to an order which (a) appeared legal and which (b) the accused did not know to be illegal. R.C.M. 916(d); United States v. Calley, 46 C.M.R. 1131, 1183 (A.C.M.R.1973).

Defendant’s actual knowledge of illegality required. In United States v. Whatley, 20 C.M.R. 614 (A.F.B.R. 1955), the Court held that where a superior ordered the defendant to violate a general regulation, the defense of obedience to orders will prevail unless the evidence shows not only that the defendant had actual knowledge that the order was contrary to the regulation but, also, that he could not have reasonably believed that the superior’s order may have been valid.

The defense of obedience to orders is unavailable if a man of ordinary sense and understanding would know the order to be unlawful. In United States v. Griffen, 39 C.M.R. 586 (A.B.R. 1968), the Court found no error to refuse request for instruction on defense of obedience to orders where the accused shot PW pursuant to a superior’s order Se also United States v. Calley, 46 C.M.R. 1131 (A.C.M.R. 1973).

The processing of a conscientious objector application does not afford an accused a defense against his obligation to deploy, even if the orders to do so violate service regulations concerning conscientious objections. United States v. Johnson, 45 M.J. 88 (1996).