Dumb JAG question. I'm trying to understand what would give soldiers on State Active Duty power to disobey unlawful orders. If there exist clones of UCMJ Arts. 90 and 92 in the State Code of Military Justice, is it the specification of "lawful" orders that'd allow troops to disobey unlawful ones? - ThreadSky

rpg-volley.bsky.social • 21 days ago

Dumb JAG question. I'm trying to understand what would give soldiers on State Active Duty power to disobey unlawful orders. If there exist clones of UCMJ Arts. 90 and 92 in the State Code of Military Justice, is it the specification of "lawful" orders that'd allow troops to disobey unlawful ones?

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rpg-volley.bsky.social•21 days ago

And let's say someone uses that defense... and then what? There'd have to be a state-level MCM with a mirroring Rule 916(d), or a Judge would decide whether or not the order was truly lawful, or we'd have state-level case law to look to?

phobosdeimos.bsky.social•21 days ago

Given how widely variable state codes of military justice are, the answer is "it depends." Probably good to ask an SJA from the state in question.

phobosdeimos.bsky.social•21 days ago

Texas code of military justice, for instance, has like an abbreviated version of the UCMJ in the state code, which leaves certain articles open to interpretation where the T10 version is more specific in its elements.

seatosin.bsky.social•21 days ago

Many states have an entire section in their codes or statutes dedicated to the National Guard or military reservists. You may look to see if your state has a section incorporating the UCMJ or has it's own rules.

rpg-volley.bsky.social•21 days ago

Yep, I'm tracking the "UCMJ Clone" within states' codes. What I'm trying to ask, perhaps poorly, is: is it the specification of "lawful" in Articles 90 and 92 of the UCMJ and their state-level clones what permits service members to refuse unlawful orders? Like a negative definition?

phobosdeimos.bsky.social•21 days ago

Yeah, if the state code doesn't explicitly address it, it might be open to interpretation. Or perhaps addressed in some state military command policy/regulation. Again, talking to an SJA from the state in question is the best bet.

seatosin.bsky.social•16 days ago

If I remember my time in the JAG office correctly, anytime disobeying of a lawful order is an aspect of the prosecution, the prosecution has to prove the order was lawful and the defense will have the affirmative defense of the order being unlawful.

robisreading.bsky.social•16 days ago

Hrm... This seems serious. More of a smart JAG question.

Dumb JAG questions are more like "Hey JAG, I've been struck with sudden illiteracy; can you read my reg for me?"

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