How have courts‑martial historically treated claims of following superior orders (e.g., My Lai) under the MCM?
Executive summary
Courts‑martial have long rejected blanket immunity for "I was following orders," instead treating obedience to superior orders as a constrained defense: lawful orders must be followed, but manifestly illegal orders do not excuse criminal conduct, a principle grounded in post‑World War II jurisprudence and codified in the Manual for Courts‑Martial (MCM) [1] [2]. Over decades the MCM and appellate decisions—most visibly the prosecutions arising from My Lai and later refinements such as United States v. Smith—have tightened the standard into a practical test: an order is unlawful if a person of ordinary sense and understanding would recognize it as illegal [1] [3].
1. Origins: Nuremberg to the MCM — rejecting absolute obedience
The rejection of an absolute superior‑orders defense traces to the Nuremberg legacy and was incorporated into U.S. military law through the MCM: military personnel are not permitted to rely on orders to justify clearly unlawful acts, and the Manual reflects that obligation as part of the framework for courts‑martial adjudication [1] [2]. The MCM, developed first under the 1950 UCMJ and updated repeatedly since 1951, serves as the authoritative source of rules and punitive articles that courts‑martial apply when evaluating defenses like obedience to orders [4] [5].
2. The My Lai prosecutions and the "Calley" standard — practical limits on the defense
The My Lai prosecutions in the 1970s—most famously Lt. William Calley—brought public and legal focus to whether following orders could excuse atrocities; appellate and doctrinal statements emerging from that era emphasized that clearly illegal orders (such as orders to kill civilians) could not be insulated by rank or combat stress, crystallizing the idea that some orders are manifestly unlawful and must be disobeyed [1]. The MCM and subsequent case law cite My Lai‑era jurisprudence when instructing courts and judges that soldiers cannot hide behind superior commands to commit crimes, a stance that has been reaffirmed in later military appellate decisions and MCM guidance [1] [3].
3. The modern test — "manifestly illegal" and the ordinary person standard
Contemporary courts‑martial apply a twofold approach: they permit a defense based on obedience when an accused reasonably believed an order was lawful, but they bar reliance on obedience when the order was manifestly illegal; the Court of Appeals for the Armed Forces in cases like Smith articulated the operational rule that an order is illegal when “a person of ordinary sense and understanding would know it to be illegal,” sharpening the practical threshold for trial judges and juries [1]. The MCM contains procedural rules and commentary that integrate this doctrine—identifying what instructions a military judge may give and how evidence about orders and their legality should be weighed—so that the manifestly illegal standard has both procedural and substantive force in courts‑martial [2] [3].
4. Procedural mechanics and evolving amendments to the MCM
The Manual for Courts‑Martial has been updated by executive order and Federal Register amendments across decades to reflect changes in rules, evidence, and appellate practice, which in turn shape how superior‑orders defenses are handled at trial and on appeal; these administrative updates preserve core substantive limits while refining procedural mechanisms like judge’s instructions, evidentiary standards, and post‑trial relief [6] [7] [8]. The MCM’s Parts II–IV and accompanying commentary supply the specific rules for courts‑martial (rules, military rules of evidence, punitive articles) that judges apply when determining whether an order was lawful and whether the obedience claim should succeed [5] [2].
5. Balance and unresolved contours — thresholds, perceptions, and appellate calibration
While doctrine is clear that manifestly illegal orders are not a defense, application remains fact‑intensive and contested: what a "person of ordinary sense" would recognize varies with context, combat pressure, and training, and appellate courts have progressively calibrated standards and jury instructions to account for those variables [1]. The available sources document the legal principle, its incorporation into the MCM, and appellate refinements but do not provide an exhaustive catalog of every courts‑martial decision applying the test; therefore, specific outcomes depend on the record of individual cases and evolving judicial interpretations [2] [1].