Author Topic: Acquisition Cards and Lawful Orders  (Read 4519 times)

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Offline CTD

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Re: Acquisition Cards and Lawful Orders
« Reply #50 on: April 19, 2017, 12:17:38 »
I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!

That would be interesting if in fact it was true.
The assumption that a order to shoot "civilians" assumes that they are civilians and not combatants to which the person giving the order may be privy to and not in a position or time to relay all the info.

As for breaking the law in terms of" financial" reasons those follow federal laws on appropriate spending of public funds. So a order which contravenes  any QR&O or federal financial laws would be chargable not under the CSD but also Civilian. When a person signs for that LPO Card etc they must fully understand their legal responsibilities with that card. Just because people get away with spending outside of the rules does not make it legal.
A case could be made in the case of an emergency to use the card outside of its intended use. But you would have to ensure the justification of its use did constitute an actual emergency with no other means to aquire the assets.

Take a room of 10 JAG Officers and ask the question and you will get 10 different spin offs of the answer.

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Re: Acquisition Cards and Lawful Orders
« Reply #51 on: April 19, 2017, 12:23:09 »
Furthermore, and I'm sure (or hope) that JAG types will back me up (I think I was paying attention during the multiple POCs I took over the course of my career), but my understanding was the "manifestly unlawful" pertains more to 'Rule of Law' situations, which in many cases are not based on law, per se, but compliance with conventions, precedent from previously accepted conduct, and in some cases the application of individual Nation's criminal codes, etc.   F.A.A. contravention is not "manifestly illegal", it's just illegal...full stop.

Regards

G2G 

Online Blackadder1916

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Re: Acquisition Cards and Lawful Orders
« Reply #52 on: April 19, 2017, 12:40:54 »
I wish we had a JAG to chime in here, because I had a discussion with a JAG officer a few years back about what constituted "manifestly unlawful". From what that JAG officer told me, "against regulations" is not "manifestly unlawful". Manifestly unlawful would be something that even a lay person would know was illegal, like shooting civilians. All other orders must be followed. So, from that perspective, I'd think the XO's orders in this case were legal, (albeit against regulations), and therefore must be followed.

Where's FJAG when you need him!

In the absence of a learned ambulance chaser, I'll (comfortably ensconced in the memory of a barracks room) post this link in which a military judge weighed in on the question and quoted a precedent.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB
Quote
[35]           The Court Martial Appeal Court stated at paragraph 12 of the R v Matusheskie 2009 CMAC 9 decision that:

... Notes B and C of Article 19.015 of the QR&Os... reflects the fact that obedience to orders is the fundamental rule of military life.  [And] there must be prompt obedience to all lawful orders [unless the command is manifestly unlawful.]

The court then states at paragraph 13:

The threshold for finding an order to be manifestly unlawful is, properly, very high...  [A manifestly unlawful order] must be one that offends the conscience of every reasonable, right-thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.

[36]           Defence counsel referred the court to the first sentence of Note (F) to article 103.16 of the Queen's Regulations and Orders when she argued the orders by Petty Officer 2nd Class Larouche were not lawful commands.  Notes are not to be construed as if they had the force and effect of law but should not be deviated from without good reason.  (see article 1.095 of Queen's Regulations and Orders)  The court must also pay attention to the second sentence of that note.  The sentences reads as follows:

A command, in order to be lawful must be one relating to military duty, i.e., the disobedience of which must tend to impede, delay or prevent a military proceeding.  A superior officer has the right to give a command for the purpose of maintaining good order or suppressing a disturbance or for the execution of a military duty or regulation or for a purpose connected with the welfare of troops or for any generally accepted details of military life....

I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.



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Offline Lumber

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Re: Acquisition Cards and Lawful Orders
« Reply #53 on: April 19, 2017, 14:49:32 »
In the absence of a learned ambulance chaser, I'll (comfortably ensconced in the memory of a barracks room) post this link in which a military judge weighed in on the question and quoted a precedent.

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99123/index.do?r=AAAAAQAOdW5sYXdmdWwgb3JkZXIB
I relooked at the OP to see what were the circumstances (if described) of the initial question to see if they met that high threshold and was reminded that it was solely a theoretical question.  So, the best that can be said is . . .  it probably depends . . . on the intent of the superior giving the order and the intent (and knowledge, and manner) of the LPO clerk refusing to do what he says.  Having a quick perusal through the court martial records, it seems that "lawfulness" of orders is often brought up in disobedience cases, usually with no joy to the defendant.


So, if I adjust my scenario slightly, and add to the XO's "written order":

 "I have listened to your objections and considered the applicable references which you have pointed me to. Nonetheless, I intend on carrying through with this purchase. I have reasons for carrying out with this acquisition; reasons which I am not at liberty to discuss with you. I accept full responsibility should this purchase be determined to be in contravention with standing rules and regulations. I hereby order you to conduct this purchase as directed by me using the acquisition card you currently posses."

Would this change anyone's mind in following the order?
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Online Good2Golf

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Re: Acquisition Cards and Lawful Orders
« Reply #54 on: April 19, 2017, 14:55:26 »
Nope.

If it's that important, then the XO could put his signature on the Requisition. :nod:


Regards
G2G

Offline ModlrMike

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Re: Acquisition Cards and Lawful Orders
« Reply #55 on: April 19, 2017, 14:59:47 »
I get where you're going, but I don't think we have the ability to absolve others of wrong doing. We're all responsible for our actions, and if the purchaser knew that the direction from the XO contravened orders etc, then they would still likely be on the hook for following through. Again, the just following orders defence.

I think that if you ask someone to do something, and they respond that they're prevented from carrying out your order due to XYZ direction, regulation etc, that should ring alarm bells for you.
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Offline Navy_Pete

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Re: Acquisition Cards and Lawful Orders
« Reply #56 on: April 19, 2017, 17:33:38 »
Good LogOs play in the grey, but also need to have the intestinal fortitude to stop their superiors from being *** hats and doing something illegal or in contravention of regulations, which are generally all backed up by high level standing orders somewhere.  (ie there is a standing order for all RCN ships to meet or exceed Canadian environmental and other regulations (barring real operational necessities), even though most of it specifically excludes the military in it's preamble for application).

Similarily good operational commanders, 2 I/Cs etc should know better than to abuse whatever authority they may or may not have by virtue of a posting message.

Sometimes you need to tell the CO to get out of the engine room and let you work, and you need your LogOs to be able to bend the rules as req to make operations happen but trust them to keep you out of trouble.

Buying stuff you shouldn't now can cause major issues later if you start getting DOAs revoked/limited, so it's a huge pain, and anyone who is an XO should know better anyway.

Offline donaldk

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Re: Acquisition Cards and Lawful Orders
« Reply #57 on: April 19, 2017, 18:24:23 »
Nice discussion... unless this is something that has to happen within the hour - give your RDAO a call (if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial).  If you have done the homework/research and can explain it in 30s or less (also mention urgent operational requirement if indeed such is the case), the RDAO will let you know whether to go ahead and advise how to note your records accordingly.  They prefer this instead of repeatedshenanigans getting caught on the PPV. Also, not all card holders have a DoA with section 32 or 34 authority (my unit card holder person doesn't but I and the LCdr do...).

P.S. If you are deploying (or a ship departing from home port) the rules change as your CO gains certain standing authorities (this is why they harp that financial authority matrix on the CDWT course).

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Re: Acquisition Cards and Lawful Orders
« Reply #58 on: April 19, 2017, 18:53:55 »
...(if you have a DoA for 32/34 or are a card holder your RDAO should be on your speed dial)...

^ this. Speed dial isn't just for your DJA.  :nod:


Offline Simian Turner

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Re: Acquisition Cards and Lawful Orders
« Reply #59 on: April 20, 2017, 18:14:54 »
Barrack room lawyer with access to QR&Os replies with:

QR&O 19.015 - LAWFUL COMMANDS AND ORDERS

Every officer and non-commissioned member shall obey lawful commands and orders of a superior officer.

(M)

NOTES

(A) The expression "superior officer" includes a non-commissioned member. (See article 1.02 - Definitions.)

(B) Usually there will be no doubt as to whether a command or order is lawful or unlawful. In a situation, however, where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.

(C) An officer or non-commissioned member is not justified in obeying a command or order that is manifestly unlawful. In other words, if a subordinate commits a crime in complying with a command that is manifestly unlawful, he is liable to be punished for the crime by a civil or military court. A manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal; for example, a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words or a command to shoot an unarmed child.

19.02 - CONFLICTING LAWFUL COMMANDS AND ORDERS

(1) If an officer or non-commissioned member receives a lawful command or order that he considers to be in conflict with a previous lawful command or order received by him, he shall orally point out the conflict to the superior officer who gave the later command or order.

(2) If the superior officer still directs the officer or non-commissioned member to obey the later command or order, he shall do so.


« Last Edit: April 20, 2017, 18:19:12 by Simian Turner »
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