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Should US Soldiers be punished for following illegal orders?

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If the country goes to war without a declaration by congress, which is illegal, should the soldiers who participate in the illegal war face trial?

I say absolutely and utterly not, and that criminalizing US soldiers for acts of government is disgustingly wrong. Do you agree?

Edited by iflyboats
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Your categorical statement confuses too many contexts and ignores several salient points of law. The morality of soldiering is itself a complex question, not easily encapsulated.

The Soldier's Oath is:

"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God." (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).

The Officer's Oath is:

"I, _____ (SSAN), having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God." (DA Form 71, 1 August 1959, for officers.)


Note that enlisted soldiers promise to obey the President and the officers placed over them. Officers pledge to defend the Constitution. Theoretically, at least, the officer's oath compels them to defend the Constitution even against the President. The soldier's oath is contradictory on that point. It is important to note that officers carry sidearms not to protect themselves against the enemy, but to shoot soldiers who refuse to obey orders.

Every soldier who enlists does so expecting to obey orders they do not like -- that's why they are called "orders": you do them regardless of your likes. That fact is recognized in moral law. The classic case is the Nuremberg Trials which held accountable the leaders, not only the top government officials, but also the jurists and judges who enforced the laws - though not the soldiers and clerks, to whom, presumably, choice was denied.

In the USA, according to military protocol, no flag ever flies higher than the US Flag -- except the chaplain's flag when services are being held. That symbolizes the fact that govenment is under (not above) moral law. It is the only way that a government born of revolution can admit to the facts.

That said, the US Constitution is not the only document that defines the powers of the federal government. During Vietnam, Congress passed a War Powers Act enabling the President, as commander-in-chief, to send troops anywhere on his discretion, subject to review, within 60 to 90 days. (You can find a good dissection from the Federation of American Scientists here.) Interestingly, even though enacted for President Nixon, he vetoed it. Congress then rallied the two-thirds override and passed it without his approval. The War Powers Act is law. Congress does not need to declare war in order for the President to dispatch military forces.

The Uniform Code of Military Justice is written by Congress.


Any person subject to this chapter who--

(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties;

shall be punished as a court-martial may direct.

The Air University has a ton of resources on military law here.

This does not address the wider and deeper philosophical discussion about soldiering in general: swearing to obey "lawful" orders; deciding when moral law countermands civil law; knowing what you will do about it. Those all assume the actual case in point of being a soldier. There is a clear dichotomy bewtween the paradigms of the Guardian and the Trader. For the Trader, objective self-interest is easier to determine.

Edited by Hermes
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