United
States v. Smith, 68 M.J. 316 (obedience to
lawful orders is an affirmative
defense on which the military judge has a sua sponte duty to instruct
if the
defense is reasonably raised).
(the essential attributes of a
lawful order
include: (1) issuance by competent authority - a person authorized by
applicable law to give such an order; (2) communication of words that
express a
specific mandate to do or not do a specific act; and (3) relationship
of the
mandate to a military duty).
(orders are presumed to be lawful).
(in this case, evidence was
insufficient to
support an instruction on an obedience to a lawful order defense in a
prosecution for maltreatment of a prisoner based on appellant’s use of
an
unmuzzled military working dog to interrogate a prisoner in Iraq,
where, while
there was some evidence that appellant received an order to use his
working dog
in the context of the interrogation, there was no evidence he received
an
order, lawful or otherwise, to remove his dog’s muzzle or have his dog
remove
the prisoner’s hood, or that such an order would have been lawful had
it been
given).
(a competent authority
necessary to issue a
lawful order is a person authorized by applicable law to give such an
order).
(in this case, the evidence
did not reasonably
raise the defense of obedience to orders regarding the offense of
maltreatment
of juvenile detainees in an Iraqi prison by using a military working
dog to
frighten them, where the evidence indicated that the use of working
dogs in aid
of interrogation, if authorized, was only authorized in the case of
certain
high-value detainees, where there was no evidence in the record that
appellant
mistook the juvenile detainees in question for high-value detainees,
where
appellant’s use of his dog in the manner alleged went beyond the
patrolling
duties that the SOP defined, where there was no immediate plan to
interrogate
the juveniles, and where appellant had the stated goal of making them
defecate).