The Uniform Code of Military Justice applies to members of the armed forces. The Code sets out the laws that each member of the services is bound to follow. It enumerates offenses and punishments much like the Penal Code does for non-military citizens, and includes Article 92, which criminalizes the failure to obey an order or regulation.
Often, commanders issue general orders to those in their command. The person receiving the order must carry it out. If they do not carry out the order, they could then be charged under the Article 92 provisions and would be subject to court-martial.
Sub Chapter X. Punitive Article
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; [emphasis added]
(2) having knowledge of any other lawful order issued by any 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.
“I was only following orders.” We’ve historically heard that argument so often that we’ve almost become immune to it. From Nazi Germany to Abu Ghraib, soldiers have heralded the defense for all sorts of atrocious acts of human rights violations. Even Hollywood has adopted the defense for some of their greatest hits, like A Few Good Men.
On June 1, 2009, President Barack Obama, the Commander and Chief of the U.S. Armed Forces, issued a proclamation declaring June Lesbian, Gay, Bisexual and Transgender Pride Month. The proclamation outlined laws and inequities suffered by LGBT people, including a call for “ending the existing ‘Don’t Ask, Don’t Tell’ policy in a way that strengthens our Armed Forces and our national security.”
Twenty-eight days after that statement, on June 29, 2009, the President reiterated his support for the repeal of the Don’t Ask, Don’t Tell policy:
And finally, I want to say a word about ‘don’t ask, don’t tell.’ As I said before — I’ll say it again — I believe ‘don’t ask, don’t tell’ doesn’t contribute to our national security. In fact, I believe preventing patriotic Americans from serving their country weakens our national security. Now, my administration is already working with the Pentagon and members of the House and the Senate on how we’ll go about ending this policy, which will require an act of Congress.
On October, 10, 2009, the Commander of the United States Armed Forces, Barack Obama, issued his “order.”
If we are honest with ourselves we’ll admit that there are too many who do not yet know in their lives or feel in their hearts the urgency of this struggle. That’s why I continue to speak about the importance of equality for LGBT families — and not just in front of gay audiences. That’s why Michelle and I have invited LGBT families to the White House to participate in events like the Easter Egg Roll — because we want to send a message. And that’s why it’s so important that you continue to speak out, that you continue to set an example, that you continue to pressure leaders — including me — and to make the case all across America.
Captain James Pietrangelo and Lt. Dan Choi heard the order of the President and acted by chaining themselves to the fence in front of the White House. For “following orders” they were arrested. Now, as the two prepare to confront the criminal charges at trial, the President’s testimony has become relevant in their defense. They have issued a subpoena for the President to appear and testify; however, service of the subpoena on the President was not made as guards at the White House refused the process server entry.
Attorneys for Pietrangelo and Choi issued a memo explaining the rational for the subpoena:
[Pietrangelo and Choi] seek to compel the testimony of President Barack Obama who has, on several occasions as President and Commander in Chief (and previously as a Senator and Presidential Candidate) called on the LGBT community to “pressure” him to change the DADT law and policy, thus allowing gay servicemembers to serve their country openly and honorably.
The subpoena of the President is necessary for the defense to prove that Defendants were following and obeying lawful orders or directives by their President and Commander in Chief, and were therefore under an obligation and authority to act as they did in order to pressure him – in a non-violent, visible way – on this important public issue. In addition, these statements support the contention that Defendants were acting out of necessity, in order to prevent discrimination and greater harm to gay servicemembers now serving.
Obviously, there are problems with a subpoena issued to a sitting president and, generally, presidents have not complied with or have made other arrangements to testify when a subpoena is issued for their appearance. It is highly unlikely that, even if served, Obama would be subject to the subpoena. However, regardless of your feelings toward the “gay rights movement” or more direct action type activism such as that employed by Pietrangelo and Choi, you must admit that it was a pretty smart maneuver and an interesting use of the “following orders” defense.