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Military Law/illegal military order


i would like to know how does the american law system refers to the subject of illegal military orders as a reason of doing crimes.
if possible in the espects of rules and major cases that has been discussed under criminal procedures.
with great thanks
shahar shavit

Not sure I fully understand your question.  If this response is not sufficient, please refine your question.

A military order must have a military connection and must not contravene existing law, such as the Constitution, treaties, and statutes.  An illegal order is just that - illegal, and does not require that it be obeyed.  As the law either has no valid military purpose or contravenes existing law, obeying the order may expose the person to prosecution.

A current example is the Abu Ghraib situation in Iraq.  There, the soldiers who are being court-martialed for abusing prisoners are attempting to defend themselves by saying they were ordered to commit abuse.  Since abuse is illegal and has no valid military purpose, any such order given (and there is no evidence that such an order was ever given - in fact, MG Taguba's investigation, which is publicly available on the Internet, found no such order was ever given) would be illegal and would be no defense.  Historically, this is known as the "Nuremburg defense" because Nazi officials tried to defend their conduct during WWII as simply following orders.  The Military Tribunal at Nuremburg rejected this defense, as have all other legal systems confronted with it.  The American military legal system does not recognize the "following orders" as a defense to criminal charges.

I hope this answers your questions.

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Douglas Dribben


I can answer questions about military law practice and procedure, as well as federal civilian criminal law. I can also answer questions about the military Judge Advocate Generals` Corps (JAG, like the TV show).


I am a former federal prosecutor and retired military attorney. I have worked in civilian and military courts in the criminal law arena, and successfully prosecuted the first DNA case in the Middle District of Georgia. I am currently in the tort arena, handling cases against the federal government arising worldwide and our NATO partners arising in the US. I hold an LL.M. in military criminal law from the Judge Advocate General's School, Army, and have written about military law issues.

The Military Law Review
The Army Lawyer
The University of Missouri-Kansas City Law Review

LL.M (military criminal law); JD (with distinction); M.E.A (civil engineering), B.S (civil engineering and applied mathematics

Awards and Honors
Legion of Merit, Meritorious Service Medal, Army Commendation Medal, Army Achievement Medal, National Defense Service Medal, Military Outstanding Volunteer Service Medal, Superior Performance Award as a Special Assistant U.S. Attorney (Department of Justice)

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