Thanks for that explanation.
This is why the UCMJ’s definitions for what constitutes a “lawful order” is so critical - and why it is unconscionable that Judge Denise Lind in her ruling on Lakin used her OWN list of criteria rather than working directly from the descriptions (elements) included in the UCMJ’s Article 92, which Lakin was accused of violating.
Article 92 says that an order is lawful if it is not contrary to law or the Constitution and is not given by someone acting beyond their authority. (Going from memory here so if I forgot something it’s an innocent mistake.)
Lind used the criteria that it’s lawful if it has to be obeyed, which is totally different.
Though what you just said makes me wonder about something. If an officer is required to discern the lawfulness of the order, then is an officer still required to obey an order that is unlawful because it is given by a de facto officer and is thus given by somebody acting beyond their legitimate authority? Are officers still required to obey orders from a de facto officer above them, or are they required to discern the lawfulness of the orders if there is reason for them to suspect it is a de facto officer and not a legitimate one?
Obeying an unlawful order is a special situation for the officer class. Their oath specifically excludes the requirement to ‘follow the orders of the President and those appointed over them’ (sic). However, they still fall under the UCMJ and therefore when they refuse an order can fase article 15/captain’s mast/officer hours (depending on service they give it different names - it’s all article 15 UCMJ). They can refuse the article and demand a CM - then the prosecutor gets involved. If it was truly an unlawful order at that time it may come out in the investigation and the original order giver may be charged. As I recall there have been cases where both cases proceeded in parallel and in some cases both were found guilty and the lower officer was later acquitted on appeal using the verdict of the 2nd trial to overturn their own. In the end - unless someone is telling you to rape, murder, pillage - you probably won’t win the case. So the answer is follow the order and submit your protest in parrallel.
The oath runs in parallel, by the way with the fact that officer appointments and promotions while made by the president, are approved by congress. GHW signed mine and somewhere I have some of the radio traffic where the promotions were transmitted by SecNav after review and approval by congress - which until you get to the stars are usually rubber stamps, though some do have help that others don’t.
It’s Lakin’s right to disobey and frankly I think he’s courageous in doing what he believes - but he will likely be found guilty. The military isn’t the civilian world. They only need to show he disobeyed a direct order to meet the requirements of the guilty verdict. He must prove it is an illegal order, a much higher bar to meet. The military will do what it needs to in order to ensure good order and discipline. In my view it isn’t their place to question O’s eligibility it is Congress’. Plus I’m not really happy with the entire court system punting on the whole “standing” BS. I’m a citizen I have standing on matters of constitutional importance - period.
Now there is no reason why senior brass could not petition congress about concerns related to good order and discipline related to this issue. However, they put themselves between a rock and a hard place and end up creating more havoc than what currently exists if they aren’t careful.
It doesn’t make me happy or proud of the situation - but I do understand where the two sides are coming from in the service.
I really could use those strawberries now...