New project provides free counsel for service members who confront an illegal order

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Sometimes orders people receive from their superiors simply aren’t lawful. If your boss ordered you to go rob a bank, would you? That’s one reason federal employees including members joining the military swear allegiance to the Constitution, not to Joe Blow. Now a group of retired military legal practitioners has formed what they call the Orders Project to provide free counsel to service members who feel they’ve confronted an illegal order. With more, a member of the Orders Project steering committee and retired Navy Judge Advocate, Phil Cave, joined Federal Drive with Tom Temin.

Interview transcript: 

Tom Temin: Mr. Cave, good to have you on.

Phil Cave: Good morning. How are you?

Tom Temin: Tell us about the Orders Project, what stimulated the formation of this group? And who’s in it?

Phil Cave: Sure. There were three things, the various events that have happened regarding the calling upon a military potentially in places like Portland, the Lafayette Square issues and the issues to do with the DC National Guard would be sort of one big category. Secondly, in our network, if you will, people being asked, getting calls or specific requests for information. And thirdly, just our own section of seeing what was happening, the rhetoric that’s coming out, for example, about the elections and how the National Guard might be involved in some fashion. And so we thought that the best thing to do was be prepared and have something in place should people feel there’s a need to go outside the military and seek some advice from people on connected with the military who have experience with military justice, which is where orders issues come up under the UCMJ. So those would be the three motivating factors.

Tom Temin: It sounds like officers then could get illegal orders from civilians, do you think or is it something that an officer would transfer to a regular foot soldier?

Phil Cave: Actually, it’s a combination. without being too specific. We know that some commanders or leaders have been concerned about whether the orders they are giving legal and should be given. On the other hand, people who have received orders themselves might question the lawfulness of the order, it’s actually a combination.

Tom Temin: Of course, this is not a new issue, just with current politics. I mean, don’t these questions of whether orders are legal go back, I mean, I can remember in the Vietnam era, some types of questions came up over, infamous incidents?

Phil Cave: Well, actually, that’s quite true. In the first instance of a issue of an illegal order, goes back to a case from the Adams administration regarding an unlawful order issued by the president to captains of naval vessels, a captain acted on that order, and later was found to be liable in damages for seizure of a ship. So the history of this is quite lengthy. And even before that, frankly, you can go back further in history to see the issue, lawful orders and disobeying lawful orders come up.

Tom Temin: Well, that’s good, because it means that the republic could survive the next election after all.

Phil Cave: Absolutely.

Tom Temin: And tell us how the Orders Project works. I’m an officer, I’m an enlisted member, and I think the order to go march in Lafayette Square is not what the military is meant to do. What happens?

Phil Cave: Let me say this first, our intent is to be nonpartisan, acting in a nonprofit fashion. And that goal is to be merely a backup. One of the things that we have stressed and we’ll stress and hope to stress is the first place to go to for questions like that are the military themselves, your judge advocates that are on active duty to maybe within the unit or assigned to help the unit in the chain of command. So in that sense, we want to be a backup. And there are times when people feel uncomfortable taking a question like that for the leadership, and they want to get some advice ahead of time. So frankly, we are hoping that we never get a call, if that makes sense.

Tom Temin: Sure. But in the case of military orders, it’s a maybe more difficult situation than people that might have a whistleblower type of situation in the private sector or in the civilian side of government, because you never really go home and get away from it if you are enlisted in the military.

Phil Cave: Correct. One of the things to keep in mind and there’s a little bit of legalism, lawyering here if you will, it’s presumed that when you’re given an order, it’s a lawful order. And the mantra is, you disobey that lawyer at your own peril. But then if it’s clearly unlawful order, then you have a duty to disobey. You mentioned Vietnam, and of course, the Calley case is one of the notorious cases from that theory that there are others but certainly that is a situation where the person did get in trouble and there have been others. But the problem is if you are not careful, I can understand why people would see that would be causing problems with a good order and discipline and those kind of things. So people have to be very careful and not knee jerk and say that’s unlawful, I’m not doing it. There are different approaches. For example, you might be given an order, which you don’t agree with politically, for example, but just because you don’t like the order, or the person giving it all the political or whatever reason for it, doesn’t mean to say you can disobey, you still have to obey the order.

Tom Temin: Yeah, maybe in the case of a operational situation, you might think the strategy is wrong. But that’s the strategy that the commanding officers want to pursue. So you really can’t question that one either. So there’s some subtlety I guess.

Phil Cave: That’s exactly right. I remember there is a small scene from the Band of Brothers where part of squad is sent off to do something and everybody agrees it’s really stupid thing to do. But they’re told to do it. And so that makes your point, I think,

Tom Temin: And in your career as a Navy Judge Advocate, are there any cases or incidents that stand out in your mind that maybe propel you to want to keep with this particular topic?

Phil Cave: No, I’ve been doing this for 41 years now and these kinds of issues, at least for me and my brethren, haven’t come up in such a in your face manner. Sure we’ve all prosecuted or defended servicemembers accused of violating or disobeying orders, but not of the type we’re talking about here, well, I don’t want to say it’s a clash between the civil and the military but the nature of the use of the military inside the United States is much different, for example, and if you’re downrange in Iraq or Afghanistan, right, so it’s much more complex, because it’s got that overlay of this is what’s going on inside the United States. There are historical, I mean, we can reflect back to the little rock. Remember, President Eisenhower had the 101st come down from Fort Campbell. And as you read through what happens, you will see, he was absolutely clear, the President was absolutely clear that he was calling them down in order to support the order of the court. In other words, the federal court issued an order and the trips where they had to maintain order to ensure the federal court order was put into effect. And he was very, very clear about that, because he wanted to avoid other issues in some sort of broad scope. They go down there and suppress violence, for example. It’s very direct and discreet way of making sure that the use of the military in that situation was appropriate.

Tom Temin: I guess there’s a lot to miss from old Ike. Phil Cave is a retired Navy Judge Advocate, now a member of the steering committee of the Orders Project. Thanks so much for joining me.

Phil Cave: You’re welcome.

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