Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Military Law and Application to Military Commanders


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

 Major Kirk L. Davies

Major Kirk L. Davies, the Imposition of Martial Law in the United States, 49 Air Force Law Review 67-218, 107-109 (2000)

A presidential decision to impose martial law raises the most profound legal, ethical and moral questions imaginable. But once the order is issued, the President must rely on the military, through its chain of command, to execute the order. If the President's decision to issue the order is later questioned or held unlawful, the ramifications for the President lie in the political and judicial realms: public criticism, impeachment, removal from office, injunction or reversal by the Supreme Court, or indictment and conviction. For the military commander, the ramifications could be similarly criminal and career ending.

Under Article 92 of the Uniform Code of Military Justice,(1)

a member of the United States military may be held criminally liable for failure to obey lawful orders and for dereliction of duty.(2)

Depending on the circumstances, a commander who violates orders may also be punished for conduct unbecoming an officer and a gentleman.(3)

Military members are required to obey lawful orders. They are not required to obey unlawful orders, but they disobey orders at their own peril. (4)

When a military member receives an order, he presumes it to be lawful, unless it is "patently illegal" or "directs the commission of a crime."(5)

According to the Manual for Courts-Martial, a general order or regulation is "lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it."(6)

A military commander is unlikely to ignore the terms "contrary to the Constitution" or "laws of the United States" because all military officers, upon entering active duty service, swear an oath to "uphold and defend the Constitution of the United States."(7)

Military commanders understand the obligation to honor individuals' constitutional freedoms, and they receive indoctrination on the role of the military in a democracy (i.e., the Posse Comitatus Act(8)

). These commanders, and their legal advisors, will likely pause before executing an order that both involves them directly in civilian law enforcement and which requires systematic violation of citizens' constitutional rights.

Considering the legal standard established in the Manual for Courts-Martial, the commander who receives an order to execute martial law should obey the order. Unless "patently illegal," such as the extremely unlikely order to conduct mass executions of noncombatants or to torture suspected criminals, (9)

there is sufficient judicial support for the Commander-in-Chief's authority to proclaim martial law. In the end, the commander's best option would be to obey the order.



1. . 10 U.S.C. 892 (2000) and MANUAL FOR COURTS-MARTIAL, UNITED STATES, Part. IV, 16 (2000 ed.) [hereinafter MCM].

2. . The punishment options range from a dishonorable discharge (or dismissal for an officer), forfeiture of all pay and allowances, and 2 years confinement for disobedience of a lawful general order, to a bad conduct discharge for enlisted members (a dismissal for officers) and confinement for six months in cases of willful dereliction of duty. MCM, Part IV, 16(e)(1) and (3).

3. . U.C.M.J. art 133 and MCM, Part IV, 59(b)-(c). The maximum punishment available under Article 133 is a dismissal, forfeiture of all pay and allowances, and confinement for a period not to exceed that authorized for the most analogous offense when the punishment is prescribed in the Manual, or if not prescribed, one year. MCM, Part IV, 59(e).

4. . The infamous Calley court-martial from the Vietnam War era made it clear that the defense of "just following orders" would not exonerate an officer for unlawful behavior. See United States v. Calley, 48 C.M.R. 19 (1973), aff'd sub nom. Calley v. Callaway, 519 F. 2d 184 (5 superth Cir. 1975) (habeas corpus review), cert. denied sub nom. Calley v. Hoffman, 425 U.S. 911 (1976).

5. . MCM, Part IV, 14(c)(2)(a)(i) states that "[a]n order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."

6. . Id. at 16(c)(1)(c).

7. . The officer and enlisted oaths of office vary slightly, but the differences have serious ramifications when it comes to obeying a superior's orders to impose martial law. Commissioned officers swear (or affirm) an oath to, inter alia, "support and defend the Constitution." 5 U.S.C. 3331 (2000). Enlisted members swear (or affirm) and oath "to support and defend the Constitution, obey the orders of the President of the United States and the orders of the officers appointed over [them], according to regulations and the Uniform Code of Military Justice." 10 U.S.C. 502 (2000).

8. . 18 U.S.C. 1385 (2000), supra note 52 (prohibiting federal military forces from assisting in local or state law enforcement roles, with certain exceptions).

9. . See supra note 191 and accompanying text.

Related Pages:
Home ] Up ] Martial Law: Threat and Response ] Presidential Power and Martial Law ] The Supreme Court's Analysis of Martial Law ] [ Military Law and Application to Military Commanders ] Military Law: Analysis and Conclusions ]
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Home ] The Imposition of Martial Law in the United States ] Constitutional Topic: Martial Law ] Detention and Treatment of Non-Citizens ] The History of the Militia in the United States ] The Posse Comitatus Act - Introduction ] Exercise of Emergency Powers - Introduction ]
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