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Full Opinion
(concurring in the result):
INDEX
I Overview 115
II The Political-Question Doctrine Resolves All Claims But One 116
III General View of the Case 116
IV General View of the Law 117
V Tidal 118
VI Lawfulness of Order As Element 120
VII Lawfulness of Order is Not an Interlocutory • Question of Law ' 122
VIII Error under Gaudin 123
X Conclusion 128
I
Overview
Thousands of military orders are given each day in our armed forces as they have been given throughout the history of our great country. Article 92(2), Uniform Code of Military Justice, 10 USC § 892, legislatively reflects the traditional Anglo-American view that only the disobedience of “lawful” orders is prohibited. See, e.g., Articles 90(2), 91(2), and 92(1), UCMJ, 10 USC §§ 890(2), 891(2), and 892(1), respectively. Today, the majority characterizes the lawfulness of an order as mere “surplusage” and judicially eliminates it as an essential element of a disobedience offense. 55 MJ at 105 and n. 7. I strongly disagree with this radical departure from our political, legal, and military tradition. See Unger v. Ziemniak, 27 MJ 349, 358 (CMA1989).
The instant case is ultimately about the process due an American servicemember on trial for the crime of disobedience of a lawful order, ie., how the lawfulness of the disobeyed order is to be determined at a court-martial and whether that procedure is constitutional. See generally Weiss v. United States, 510 U.S. 163, 176-81, 114 S.Ct. 752, 127 L.Ed.2d 1 (1994). Today, the majority opinion holds that the lawfulness of an order was properly decided as “a question of law” by the military judge in this case and cites Article 51(b), UCMJ, 10 USC § 851(b). I view the lawfulness of an order in a disobedience case as an element of that offense which in appellant’s case presented a justiciable mixed question of fact and law that the members of his court-martial should have decided. See Article 51(c) and United States v. Gaudin, 515 U.S. 506, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (elements of a criminal offense which are mixed questions of fact and law must be determined by the jury members).
Finally, modern military legal practice has long provided a procedure for determining the lawfulness of an order in disobedience cases. See para. 3-16-3 n. 3, Military Judges’ Benchbook (Department of the Army Pamphlet 27-9 (01 April 2001) and (30 Sept. 1996)); see also paras. 3-14-2 n. 4; 3-15-2 n. 3; 3-16-1, n. 3; and 3-16-2 n. 4, Benchbook, supra (1996 & 2001 eds.). It is well established that the military judge determines the lawfulness of an order and so instructs the members if no question of fact is raised pertaining to this question. See Unger v. Ziemniak, supra at 359. However, if there are questions of fact raised pertaining to the lawfulness of the order violated, the members of the court-martial are required to determine lawfulness as a mixed question of fact and law. Id. See United States v. Robinson, 6 USCMA 347, 356, 20 CMR 63, 72 (1955); United States v. Zachery, 6 CMR 833, 837 (AFBR 1952) (factual questions concerning legality of order to be decided by members). Today, the majority disregards this long-existing military practice and broadly creates a new rule that the military judge finally decides the lawfulness of an order in all cases prosecuted under Article 92. But see United States v. Ornelas, 2 USCMA 96, 99-101, 6 CMR 96, 99-101 (1952) and Article 39(a)(1) and (2), UCMJ, 10 USC § 839(a)(1) & (2); see generally C. Wright, Federal Practice and Procedure: Criminal 3d § 194 at 366-67 (1999) (pretrial motion raising defenses and objections which implicate trial of general issue should only be decided by jury). I must disagree with this additional departure from established military practice and its application to appellant’s case where I conclude questions of fact were raised concerning the lawfulness of the order violated. See generally United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also United States v. Tualla, 52 MJ 228, 231 (2000) (“[a]dhering to precedent is usually the wise policy” (internal quotation marks omitted)).
The majority’s unsettling approach to all these questions is completely unnecessary to
II
The Political-Question Doctrine Resolves All of Appellant’s Claims But One
My separate opinion in this case is expressly limited to the single claim of appellant that the disobeyed order was unlawful because it violated a U.S. Army Uniform Regulation under the facts of his case. This particular claim is the only claim that raised a contested question of fact. Appellant made other legal claims that the order to wear certain United Nations (UN) accoutrements on his United States Army uniform was unlawful. In these other claims, he particularly argued that the order was unlawful based on the constitutional prohibition against involuntary servitude (Amend. XIII), the UN Participation Act, and his enlistment contract. (R. 423) These arguments involved no real factual disputes and pertained to the legality of his deployment order to Macedonia as part of the UN Peacekeeping Force. See also United States v. Lenox, 21 USCMA 314, 45 CMR 88 (1972).
It is my view that these particular legal claims (challenges to deployment) are not justiciable issues at a court-martial in a trial for disobedience of orders. See United States v. Johnson, 17 USCMA 246, 38 CMR 44 (1967). In this regard, I agree with Judge Effron and Senior Judge Everett that these legal arguments were properly rejected by the military judge. The disposition of these claims under the political-question doctrine was a pure question of law for the military judge alone (see United States v. Austin, 27 MJ 227, 230, 234 (CMA 1988); United States v. Phillips, 18 USCMA 230, 234, 39 CMR 230, 234 (1969)) and did not legally violate appellant’s right to a decision by the factfin-ders on all the elements of a crime. See United States v. Brown, 50 MJ 262, 265 (1999); see also United States v. Bridges, 12 USCMA 96, 99-100, 30 CMR 96, 99-100 (1961) (decision on what law to apply to determine whether element of crime established is solely question of law for president of court-martial). See generally Article 51(b), UCMJ, 10 USC § 851(b) (1968) (adding “questions of law” authorization for military judge).
The political-question doctrine, however, cannot be used to resolve appellant’s additional claim that the order in question violated the U.S. Army Uniform Regulation. This claim did not require a ruling on the legality of the deployment and raised justiciable questions of fact pertaining to an element of the offense that needed to go to the military jury for resolution. See United States v. Robinson, supra at 353-56, 20 CMR at 69-72. See generally Article 51(c) and United States v. Gaudin, supra. On this point I join the wise and thoughtful opinion of Senior Judge (former Chief Judge) Everett. His resolution of this particular issue is consistent with my view of this issue.
Ill
General View of the Case
This is the case of Specialist Michael New, an American soldier in Germany, who was ordered by his U.S. Army superiors to put on a United Nations blue beret and UN insignia on his uniform when his unit was alerted for deployment to Macedonia.
At the court-martial of Specialist New, in order to successfully prosecute him, the Government basically needed to prove three facts:
1. that Specialist New received and understood the order to put on the UN Beret and UN insignia;
2. that the order was lawful; and
3. that Specialist New disobeyed the order.
At trial Specialist New did not dispute that the order was given, that he understood it or that he disobeyed it. However he made clear that his intended defense at trial was that the order was unlawful for several different reasons. Thus, his guilt or innocence at trial was to turn largely on the determination by the “military jury” whether the order he disobeyed was lawful or unlawful. As shall be discussed in detail below, his judge instructed the “military jury” before they deliberated that the order was lawful. Thus, the issue of Specialist New’s guilt was, in effect, determined by the judge in his instructions, rather than by the “military jury” in its deliberations. In my view, this was an error under established military procedure and as a matter of constitutional due process.
IV
General View of the Law
As a cadet at West Point
Colonel Winthrop stated the following regarding a soldier’s decision to disobey an order he thought was unlawful:
“Lawful command.” The word “lawful” is indeed surplusage, and would have been implied from the word “command” alone, but, being used, it goes to point the conclusion affirmed by all the authorities that a command not lawful may be dis*118 obeyed, no matter from what source it proceeds. But to justify an inferior in disobeying an order as illegal, the case must be an extreme one and the illegality not doubtful. The order must be clearly repugnant to some specific statute, to the law or usage of the military service, or to the general law of the land. The unlawfulness of the command must be a fact, and, in view of the general presumption of law in favor of the authority of military orders emanating from official superiors, the onus of establishing this fact will, in all cases-except where the order is palpably illegal upon its face-devolve upon the defence, and clear and convincing evidence will be required to rebut the presumption.
The legality of the order may depend upon the period, whether one of peace or war, (or other emergency,) at which it is issued. An order which would be unlawful in peace or in the absence of any public exigency, may be perfectly lawful in war as being justified by the usages of civilized warfare. Thus an order for the seizure of citizens’ property for the subsistence or transportation of the troops, the construction of defences, & c., or for its destruction to facilitate the operations of the army in the field, or to prevent its falling into the hands of the enemy, would be not only authorized, but to disobey it would be a grave military crime. But, in general, in time of peace an order similarly in disregard or private right would be repugnant to the first principles of law, and to fail to obey it would constitute no violation of the present Article.
But while a military inferior may be justified in not obeying an order as being unlawful, he will always assume to do so on his own personal responsibility and at his own risk. Even where there may seem to be ample warrant for his act, he will, in justifying, commonly be at a very considerable disadvantage, the presumption being, as a rule, in favor of the legality of the order as an executive mandate, and the facts of the case and reasons for the action being often unknown in part at least to himself and in the possession only of the superior. In the great majority of cases therefore it is found both safer and wiser for the inferior, instead of resisting an apparently arbitrary authority, to accept the alternative or obeying even to his own detriment, thus also placing himself in the most favorable position for obtaining redress in the future. On other hand, should injury to a third person, or damage to the United States, result from the execution of an order by a subordinate, the plea that he acted simply in obedience tot he mandate of his proper superior will be favored at military law, and a court-martial mil almost invariably justify and protect an accused who has been exposed to prosecution by reason of his unquestioning fidelity to duty, holding the superior alone responsible. How far he will be protected by the civil tribunals, if sued or prosecuted on account of a cause of action or offence involved in his proceeding, will be considered [elsewhere].
Winthrop, supra at 575-76 (most emphasis added; footnotes omitted).
It is also my view today that a military accused has a codal and constitutional right to have the members of his court-martial, not the military judge, determine whether the Government has proved, beyond a reasonable doubt, each and every element of the offense of which he is charged. See Article 51(c), UCMJ, 10 USC § 851(c), and United States v. Glover, 50 MJ 476 (1999); United States v. Brown, 50 MJ at 265; United States v. Mance, 26 MJ 244, 254 (CMA 1988) (duty of military judge to instruct members on all elements of the offense). See also United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444; see generally Weiss v. United States, 510 U.S. at 177-78, 114 S.Ct. 752 (recognizing Fifth Amendment due process standard for measuring court-martial procedures).
Y
Appellant’s Trial
Appellant was charged and found guilty of failure to obey a lawful order in violation of Article 92(2), UCMJ. The specification he was found guilty of states:
SPECIFICATION: In that Specialist Michael G. New, U.S. Army, having knowl*119 edge of a lawful order issued by LTC Stephen R. Layfield on 2 OCT 95 and CPT Roger H. Palmateer on 4 OCT 95, to wear the prescribed uniform for the deployment to Macedonia, ie., U.N. patches and cap, an order which it was his duty to obey, did, at or near Schweinfurt, Germany, on or about 10 OCT 95, fail to obey the same.
(Emphasis added.)
In a pretrial session under Article 39(a), UCMJ, 10 USC § 839(a), the military judge addressed a series of government and defense motions, including motions to dismiss which he denied. Then, the judge held as a matter of law that the uniform order given to appellant was lawful and that the members of the jury would be so instructed with regard to their deliberations on his guilt of disobeying that order. (R. 285, 376) Defense counsel strongly objected to both these rulings. (R. 423-433, 448 — 49)
Appellant had raised several claims that the order to attach UN accoutrements {ie., patches and cap) to his U.S. Army uniform was unlawful. As noted earlier, these arguments pertain to the legality of appellant’s deployment and are not justiciable issues under our case law. See United States v. Johnson, 17 USCMA 246, 38 CMR 44 (1967). I agree with Judge Effron and Senior Judge Everett that appellant’s claims that the order was illegal on these bases were properly rejected by the judge as a matter of law (“political-question doctrine”). See United States v. Johnson, supra.
A remaining argument, however, that the defense asserted at tidal was that the order in question, ie., to wear the UN patches and cap, violated a Department of the Army Regulation, ie., Army Regulation (AR) 670-1, Wear and Appearance of Army Uniforms and Insignia (1 September 1992). It pointed to paragraph 3 — 4, which stated:
Insignia and accouterments authorized for wear with these uniforms are * * * (k) Foreign badges, distinctive unit insignia, and regiment distinctive insignia unll not be worn on these uniforms.
(Emphasis added.)
Both the military judge and the Court of Criminal Appeals found that this regulation did not invalidate the disobeyed order in this case because paragraphs 1-18 and 2-6d of the same regulation permitted these uniform additions.
Paragraph 1-18 provides:
Wearing of organizational protective or reflective clothing.
Commanders may require the wear of organizational protective or reflective items or other occupational health or safety equipment with the uniform when safety considerations make it appropriate. These items will be furnished at no cost to the individual.
(Emphasis added.)
Paragraph 2-6d provides:
The commander in charge of units of maneuver may prescribe the uniform to be worn within the maneuver area.
(Emphasis added.)
Both the judge at trial and the Court of Criminal Appeals found as fact that the disobeyed order was issued for “safety” purposes and while on “maneuver.” (R. 426, 428) (R. 443-44 & 449)
The military judge then made a ruling that the order given to> appellant was a lawful order. See R. 431. Later, prior to trial counsel’s and defense counsel’s arguments on findings, the military judge gave the members the following instructions on findings:
In order to find the accused guilty of this [disobedience] offense, you must be convinced by legal and competent evidence beyond a reasonable doubt of the following elements: One, that a member of the armed forces, namely, Lieutenant Colonel Stephen R. Layfield, on 2 October 1995; and Captain Roger H. Palmateer, on 4 October 1995, issued a certain lawful order to wear the prescribed uniform for the deployment to Macedonia, ie., UN patches and cap;
Members of the court, as a matter of law, the order in this case, as described in the*120 specification — if, in fact, there was such an order — was a lawful order.
âť– * *
You should consider, along with all the evidence in this case, the following: I previously instructed you that, as a matter of law, the order in this case, as described in the specification — if, in fact, there was such an order — was a lawful order. I further instruct you at this time that, as a matter of law, the accused would not have violated AR 670-1 by obeying the order in this case as described in the specification, if, in fact, there was such an order.
(R. 782-84 (emphasis added)).
After the arguments on findings, the military judge again instructed the members on the findings in the following manner:
I have judicially noticed that AR 670-1 is a lawful regulation [and] that the accused had a duty to obey that regulation.
âť– âť– *
You should consider, along with all the evidence in this case, the following: I previously instructed you that, as a matter of law, the order in this case, as described in the specification — if, in fact, there was such an order — was a lawful order. I further instruct you at this time that, as a matter of law, the accused would not have violated AR 670-1 by obeying the order in ' this case, as described in the specification, if, in fact, there was such an order.
(R. 829-30 (emphasis added)).
VI
Lawfulness Of Order As Element Of The Offense
The first question I will particularly address is whether the lawfulness of the order allegedly violated in this case is an element of the offense of disobedience of an order under Article 92(2), UCMJ. This criminal statute states:
§ 892. Art. 92. Failure to obey order or regulation
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
(Emphasis added.)
I conclude for several reasons that the lawfulness of the order allegedly violated in this case (the order to wear UN patches and cap) was an element of the charged offense and, accordingly, under Article 51(c), UCMJ, and United States v. Gaudin, 515 U.S. at 522-23, 115 S.Ct. 2310, should have been presented to the “military jury.”
First, I note that Article 92, UCMJ, as well as other codal provisions noted above, expressly prohibit failure to obey a “lawful” order, language recognizing the historical and political importance of requiring service-members to obey only lawful orders. See G. Davis, A Treatise on the Military Law of the United States 378-82 (1913 3d ed. rev.); C. Clode, The Administration of Justice Under Military and Martial Law 30-31 (2nd ed.1874); Winthrop, Military Law and Precedents 575 (2nd ed.1920 Reprint). See generally United States v. Gentle, 16 USCMA
Second, I note that the President in the Manual for Courts-Martial, United States, has repeatedly identified the lawfulness of the order as an element of this offense.
Third, this Court, in an opinion authored by then-Chief Judge Everett, unanimously stated that “[i]n a prosecution for disobedience, lawfulness of the command is an element of the offense.” Unger v. Ziemniak, 27 MJ 349, 358 (1989). See Articles 90(2), 91(2), and 92(1) and (2), UCMJ; United States v. Martin, 1 USCMA 674, 676, 5 CMR 102, 104 (1952); United States v. Young, 1 MJ 433, 437 (CMA 1976). See United States v. Trani, 1 USCMA 293, 295, 3 CMR 27, 29 (1952); see also United States v. Hill, 5 CMR 665, 669 (AFBR 1952) (presumption of lawfulness in Manual is “tantamount to saying that the lawfulness of the regulation was an element of the offense”).
Fourth, military law commentators over many years have consistently stated that lawfulness of an order in disobedience case is an essential element of this offense or those related thereto. See J. Snedeker, Military Justice under the Uniform Code §§ 2902-03 at 593-94, 597-99; Davis, supra at 380-81; cf. Winthrop, supra at 575-76 (suggesting it may be a statutory defense).
Finally, the majority opinion asserts that the lawfulness language in Article 92(2) is mere “surplusage” and that the word “lawful” simply reinforces the nature of the order without establishing a separate and distinct element of the offense.
7. For this proposition it cites Winthrop, supra at 575, who there states:
The word “lawful” [in AW 21] is indeed surplusage, and would have been implied from the word “command” alone, but, being used, it goes to point the conclusion affirmed by all the authorities that a command not lawful may be disobeyed, no matter from what source it proceeds.
(Most emphasis added (footnote omitted.))
This quote from the “Blackstone of Military Law” (see Reid v. Covert, 354 U.S. 1, 19 n. 38, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) (plurality opinion)) provides relevant background for interpreting A’ticle 92(2) and determining its essential elements. See Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994). Winthrop clearly recognized that if the statutory word “lawful” is used in the disobedience context, it has meaning in terms of the type of military order whose disobedience is punishable at a court-martial. It also shows that Congress could have enacted a statute prohibiting disobedience of orders without regard for the order’s lawfulness but chose not to do so. See Article 97, UCMJ, 10 USC § 897 (“except as provided by law”); cf. Article 95, UCMJ, 10 USC § 895 (arrest, custody, confinement); Article 96 (“whether or not the prisoner was committed in strict compliance with law”). Finally, his quotation clearly reflects the traditional Anglo-American view
VII
Lawfulness of Order is Not an Interlocutory Question or Question Of Law
The Court of Criminal Appeals held that the question whether a disobeyed order was lawful in this disobedience prosecution was “an interlocutory question.” 50 MJ 729, 738 (1999). An interlocutory question, however, is generally understood to be one that “does not bear on the ultimate merits of the case.” See United States v. Ornelas, 2 USCMA at 100, 6 CMR at 100. Moreover, we have expressly held that a question is not interlocutory where it is “concerned with disputed questions of fact regarding a matter which would bar or be a complete defense to the prosecution.” United States v. Berry, 6 USCMA 609, 613, 20 CMR 325, 329 (1956). Since a servicemember may not legally be found guilty of violating an unlawful order (see Winthrop, supra, and Unger v. Ziemniak, supra) and questions of fact were raised in this case concerning the lawfulness of the order, it cannot logically or legally be considered an interlocutory question within the meaning qf Article 51(b).
The majority of this Court further contends the lawfulness of an order is a “question of law” which must be decided by the military judge. See United States v. Carson, 15 USCMA 407, 408, 35 CMR 379, 380 (1965).
The majority’s position that the lawfulness of an order in a disobedience prosecution is “a question of law,” not to be decided by the members, is based on language in this Court’s opinion in United States v. Carson, supra at 408, 35 CMR at 380. The majority concedes this statement in Carson was dicta. 55 MJ at 101. Moreover, it recognizes that the dicta in Carson is inconsistent with subsequent pronouncements of this Court in Un-ger v. Ziemniak, 27 MJ 349. In addition, I note the Supreme Court in Gaudin expressly rejected the notion that members of a jury were incompetent to decide mixed questions of law and fact, the lynchpin of the Carson dicta noted above. See United States v. Gaudin, supra at 521, 115 S.Ct. 2310; cf. United States v. Carson, supra at 408-09, 35 CMR at 380-81. Accordingly, Carson is not persuasive authority for holding that the lawfulness of an order in a disobedience prosecution is a question of law for the military judge.
There is another reason why I disagree with the majority’s holding that lawfulness of an order in a disobedience prosecution is a
In this codal context, it is clear that a “question of law” for purposes of Article 51(b) does not include elements of an offense which raise mixed'questions of fact and law (e.g., United States v. Gaudin, supra) or pretrial motions which raise questions of fact “intermeshed with questions on the merits of a case” (United States v. Medina, 90 F.3d 459, 463-64 (11th Cir.1996); see United States v. Grimmett, 150 F.3d 958, 962 (8th Cir.1998)). To the extent that dicta in Carson suggests the contrary, it should be ignored. Accordingly, whether lawfulness of an order is an element of an offens