Prof. Dunlap on The Orders Project

10/28/2020

Blog post here. Interesting comments below.

10/27/2020 01:17:35 pm

I just want to say thank you for sharing this post. I realize some (many?) readers may disagree, but it says much about CAAFlog - all of it good - that it entertained this perspective. Thanks again, Charlie

Poster

10/27/2020 01:55:38 pm

Professor Dunlap.
This is well supported and reasoned. However, I would take issue with this statement:
"Military members have every reason to be confident in their commanders. Polls show that Americans rank military officers very highly in terms of honesty and ethics, and also believe they are among those professions most likely to act in the national interest."

I'd be hard pressed to assign polls of a non-descript population as a predicate for total faith. That is, unless we actually do want to put the legality of orders in the hands of a panel.

Charles Dunlap

10/27/2020 02:50:34 pm

Thank you so much for the comment! I do think that military commanders are worthy of trust, but you make a good point about being wary of polls (and my next post is going to have something to do with it). Again, many thanks! (And this is the kind of dialogue that a) is good for the public (and students!) to see, and b) will make CAAFlog a dynamic forum for real discussion. Respectfully, Charlie

Poster

10/27/2020 04:32:55 pm

From the horse's mouth everybody.

We need more commentary. I think that does more than poles or the project, at least until Clint gets his law license.

Poster2

10/27/2020 05:34:45 pm

Prof. Dunlap: is it your position that had the soldiers at Kent State refused to open fire as commanded that they would have been liable for disobedience (under a state military law analogue)?

Charlie Dunlap

10/27/2020 05:52:30 pm

Hi Poster2!

Thanks for the note, I don't know all the facts off of the top of my head, but I seem to recall that they thought the heard shots, yet they didn't have a specific shooter in sight. Thus, I can't imagine any circumstance where simply firing into an area filled with students (many weren't even demonstrators) could possibly be a lawful order,, (BTW, at Kent State they weren't actually given an order) The real problem with Kent States is that the Guard was completely unprepared for dealing with civil disorders, yet were thrown into a confusing and chaotic situation - circumstances which I'd bet were behind the dismissal of the charges (here's a NYT story about the dismissal of charges: https://www.nytimes.com/1974/11/09/archives/judge-acquits-guardsmen-in-slayings-at-kent-state-judge-acquits.html

Charlie Dunlap

10/28/2020 09:03:36 am

Hi Poster2!

Because of your excellent question, I updated the post to clarify the Kent State incident. Thanks!

Don Rehkopf

10/28/2020 12:50:40 pm

Charlie - two things and thanks for engaging here. First, there was indeed an Order at Kent State:

"This excerpt from a copy of Terry Strubbe's Kent State recording contains the order for the Guard to prepare to fire. The word "Guard!" can be heard at 9.3 seconds. "All right, prepare to fire" begins at 19.5 seconds. "Get down!" is spoken at 22.3 seconds. The final "Guard!" is at 23.7 seconds, and the gunshots begin at 26 seconds."

https://www.cleveland.com/metro/2010/05/new_analysis_of_40-year-old_re.html

Second, shortly after 9/11, I was activated as an IMA to augment a unit whose Deputy SJA was already deployed to the Balkans. My primary assignment was to research and brief commanders on the Posse Comitatus Act [PCA], which no one really understood, especially those who needed to understand it, Security Forces. As you know, the PCA is a complex piece of legislation, with numerous exceptions built into it, must be interpreted in pari material with the Insurrection Acts. Furthermore, there are other specific statutory authorizations that the PCA does not control, e.g., 16 U.S.C. § 23 (Secretary of the Army may detail troops to protect Yellowstone National Park upon the request of the Secretary of the Interior). At the time, there was no handy "checklist" for commanders, Security Forces personnel, etc., to consult, but the vast majority of the folks I briefed, did not have a clue about the scope of the PCA, and most of those who thought they did, were generally wrong about it.

And of course, National Guard troops have differing roles depending on their status, i.e., as under the State militia provisions under Title 32, or under Title 10 - something that we appreciate, but an E-7 may not.

Regards,
Don

Charlie Dunlap

10/28/2020 01:43:13 pm

Hi Don!

Thanks for the note. Candidly, I think the weight of the evidence doesn’t support the order-was-given claim. Among other things, I believe the Guardsmen would have raised it at the time. They built their defense on the notion that they feared for their lives, not that they heard an order.

As to the complexity of the PCA, we are in complete agreement (and there are a raft of statutory exceptions including some inscrutable ones, e.g, protection of the owners of guano islands!)

I also think you raise a key point about the specific status a Guardsman may be in at the time. As you know, he or she may be being paid by the Federal government but still in state status, but it isn’t impossible that he or she is working right next to a federalized Guardsman.

And, of course, there is the issue of state law. Guardsmen from another state my be working via the compact in state status in a state which is not their own and which may have different authorities (and limitations) than their home state.

It’s a law school federalism test question of the first order!! Thanks again, Charlie

Don Rehkopf

10/28/2020 04:35:58 pm

Charlie - we can agree to disagree, but I worked on the Kent State civil suit as an ACLU volunteer. The FBI seized the original tape [reel-to-real] a day or two afterwards and their report came back "inconclusive." The Judge would not order the FBI to allow an independent analysis of the tape, but did order that a copy be made - at the time, the evidentiary value was to demonstrate just how long the volley of shots lasted for the jury. After the civil settlement, things more or less stopped - with the exception of a couple of the wounded students.

In 2007, the copy provided by the FBI was located in the Yale archives and for the first time, forensically examined, with the claims about the orders first credibly surfacing. In 2010, the Cleveland Plain Dealer, paid 2 nationally recognized forensic audio experts to re-evalutate the tape vis-a-vis the "order" issue - both experts concurred in the language I previously quoted.

As to the "fear" defense, that worked as the day before Governor Rhodes had told the Ohio NG Commander that he was going to get an Order declaring Martial Law [add that to the mixture as well], which would impliedly authorize deadly force "if in fear." Only, that never happened - the supposition being that the Ohio AG said it didn't meet the standard for martial law. But, it was clear that the on-scene NG commander had ordered the Guardsman to "load and lock" with live ammo.

That is important for this dialogue because many, but unfortunately not all, of the Guardsman, fired into the air or ground as numerous photos show. One can infer that they had qualms about - assuming the order to fire was given - its legality in shooting unarmed American students.

The good news is that I think that we can agree on is that today's Guard - Army and AF - are far better trained, have far more discipline and the Commanders certainly most likely to insist on viable ROE's, than in 1970.

Regards,
Don

Brenner M. Fissell

10/28/2020 02:56:29 pm

Professor Dunlap,

Thank you for engaging with CAAFlog’s readers! Kent State is a useful thought experiment. While you and Don disagree about the existence of an order to shoot, let’s rewind the clock (hypothetically) to the night before the shooting. Members of the Ohio National Guard are unwinding at a local bar and a young officer who is their commander, after a few drinks, begins joking around about how he would like to just “shoot the commies.” He complains that he has been advised by a JA that he should not use deadly force unless absolutely necessary—say, in response to a threat of deadly force. An 18 year old E-1 under the officer’s command overhears this conversation and becomes very worried about what might transpire the next day. He calls the legal assistance office and asks if he must obey an order to shoot students who are not presenting a deadly threat. That office tells him they do not advise on such matters, and that he should call the trial defense shop. He does so. The trial defense shop advises him that they give no advice until there are criminal charges. He then calls Don Rehkopf who has taken a time machine back to 1970, but with all of his experience that he currently has now. Don Rehkopf explains to him the basic structure of the law on orders and when they may be disobeyed.

Are you “troubled” by this, and why?

You say “The Orders Project claims that ‘Military personnel have a right to consult counsel,’ but that is misleading.” You then say “Military personal do have a right to consult counsel in certain situations,” and go on to describe a situation in which the Sixth Amendment Right to Counsel attaches. Do you believe that the hypothetical E-1 has no right to call Don Rehkopf merely because the Sixth Amendment right has not yet attached? Does a corporation seeking to structure its transactions in a lawful way not have the “right” to consult counsel so as to avoid potential criminal liability—or must the corporation wait to consult a lawyer after the DOJ has initiated adversarial proceedings for money laundering?

Thanks,
Brenner

Charlie Dunlap

10/28/2020 04:06:53 pm

Hi Brenner!

Thanks! I think there is is a difference as to when a "right" accrues under military law, and whether an individual can choose to consult with counsel at a time and place that doesn't interfere with his duties. I would never tell anyone to miss an opportunity to consult with Don Rehkopf (all kidding aside, he is the master!) is he can, butt the soldier should (also) raise his concerns with his leadership, the IG, or the SJA - or even make an Article 138 or Congressional complaint. Importantly, there is no "right", per se, to suspend participation in an operation to consult with counsel except as I outlined in the post, but that doesn't mean an individual can't consult with counsel if there is an appropriate opportunity to do so. I really can't answer the corporate transaction question.

Scott

10/28/2020 03:41:29 pm

Thank you for posting this. I have to admit I had a bit of an uneasy feeling when I first read about the orders project. This post articulates some excellent points and adds to a wider perspective of the issue.

Your comment will be posted after it is approved.

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Prof. Dunlap on The Orders Project

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