What role do military regulations and command responsibility play in assessing an order’s lawfulness?
Executive summary
Military regulations and doctrine set the baseline for lawful orders by defining commander responsibilities and the legal framework for military justice; for example, Army Regulation 600‑20 (Army Command Policy) codifies command responsibilities including "command responsibility under the law of war" and requires commanders to manage discipline and force well‑being [1]. Professional handbooks and service guides — like the Commander's Legal Handbook and The Military Commander and the Law — emphasize that commanders both enforce the law and must avoid unlawful command influence in justice processes [2] [3].
1. Commanders set the legal baseline — what regulations require
Military regulations such as AR 600‑20 make command responsibility explicit: commanders are charged with enforcing discipline, protecting Soldiers’ rights, conducting command climate assessments, and even “command responsibility under the law of war,” which embeds legal duties into day‑to‑day command functions [1] [4]. That regulatory text creates an institutional expectation that orders conform to service policy and the Uniform Code of Military Justice (UCMJ), so an order that violates those regulations puts a commander at odds with the written baseline of lawful command [1] [4].
2. Legal handbooks translate law into practical judgment
Operational guides and handbooks translate broad regulations into actionable legal advice for commanders. The Commander's Legal Handbook frames commanders as responsible for enforcing law while supporting judicial processes, outlining how military justice mechanisms (courts‑martial, panels) operate and what support commanders must provide [2]. The Military Commander and the Law provides detailed guidance about convening authorities, permissible command involvement, and the danger of unlawful command influence — making clear that legality analysis is both legal and practical, not only theoretical [3].
3. Command responsibility as both duty and potential liability
Regulations make command responsibility a two‑edged sword: commanders must prevent and correct unlawful acts and ensure force welfare, but they also risk legal exposure if they issue or enforce unlawful orders. AR 600‑20 explicitly ties command to the law of war and to administrative and justice obligations, signaling that failure to respect those duties is a matter of formal accountability [1]. That linkage is repeated across service materials that treat command not merely as authority but as a legal office with enforceable duties [2] [3].
4. How lawfulness is assessed in practice
Assessing whether an order is lawful requires comparing the order to multiple sources: service regulations (AR 600‑20), the UCMJ and Manual for Courts‑Martial (as explained in handbooks), and specific departmental directives that modulate command discretion [1] [2] [3]. Commanders and legal advisors evaluate whether an order violates statutory law, the UCMJ, the law of war, or service policy; they also watch for “command influence” that could taint judicial fairness — a recurring theme in The Military Commander and the Law [3].
5. Institutional trends and new policy drivers
Recent and contemporaneous policy changes alter the decision space commanders must navigate. Updated AR 600‑20 provisions emphasize command climate assessment responsibilities, shifting greater proactive duties onto battalion and brigade leaders [4]. Executive orders and White House directives that redefine missions or roles — for example, reassigning border tasks to combatant commands — create operational contexts where commanders must reconcile new policy priorities with existing legal limits [5] [6]. Available sources do not mention how commanders have litigated these specific executive‑policy tensions in courts.
6. Competing perspectives and unresolved tensions
Sources present two competing emphases: one stresses robust command authority to preserve discipline and readiness (AR 600‑20, handbooks) while the other warns against overreach and unlawful command influence in legal processes (The Military Commander and the Law; Commander's Legal Handbook) [1] [3] [2]. Service directives expanding commander responsibilities (e.g., extremist‑activity rules or updated appearance standards) increase discretion but also create more potential for administrative or punitive action — which opponents say risks variable application across commands [7] [8]. The materials cite the expansion of responsibilities; they do not provide comprehensive empirical evidence about resulting increases in unlawful orders or disciplinary disparities.
7. Practical takeaway for legality assessments
The legal test for an order’s lawfulness is not just whether a commander gives it, but whether it conflicts with the UCMJ, service regulations (especially AR 600‑20), the law of war, or creates unlawful command influence — a determination made using legal advice and military‑justice procedures described in handbooks and service manuals [1] [2] [3]. When doubt exists, the documents consistently point to seeking judge advocate counsel and relying on established military justice mechanisms rather than unilateral resolution by the issuing commander [2] [3].
Limitations: this analysis relies on regulatory and doctrinal materials in the provided reporting; available sources do not mention specific court decisions applying these texts to particular contested orders or provide quantitative data on how often commanders are held liable for unlawful orders (not found in current reporting).