Tag: Military Law Q&A

Yes, a commanding officer can absolutely be charged under Article 99 for failing to properly lead their troops during an engagement with the enemy. The UCMJ applies to all service members regardless of rank, and commanders are held to the highest standards, especially in combat. An officer’s failure of leadership before the enemy can be prosecuted under several clauses of Article 99.

The most likely charge would be “cowardly conduct,” which is defined as a failure to perform one’s duty as a result of fear. If a commander hides in a bunker or refuses to make tactical decisions because they are paralyzed by fear, that is cowardly conduct. Alternatively, they could be charged with “shamefully abandon[ing]” their command if their failure to lead effectively results in the unit’s collapse or surrender. They could also be charged with “willfully fail[ing] to do his utmost to encounter, engage…or destroy any enemy troops.” An officer’s primary duty in combat is to lead, and a willful failure to do so is a grave offense.

A military defense attorney defending a commander would have an incredibly difficult task. They would have to argue that the commander’s actions were not a result of fear or a failure of will, but were the result of a legitimate tactical assessment, however flawed it might appear in hindsight. They would need to present expert testimony on military tactics to show the commander’s decisions were reasonable under the extreme pressure and confusion of battle. The burden of command is heavy, and a failure to meet it in combat is treated with the utmost seriousness by military law.…

Even if an act of misbehavior before the enemy under Article 99 does not result in a loss of life or a catastrophic mission failure, the sentencing implications are still extremely severe. The law punishes the act of misbehavior itself because of its inherent danger and its potential to cause such a disaster. The fact that a disaster was luckily averted does not significantly lessen the gravity of the offense. The maximum authorized punishment for most violations of Article 99, such as cowardly conduct or running away, remains the death penalty, regardless of the outcome.

During the sentencing phase of a court-martial, the prosecutor would argue that the lack of casualties was a matter of pure luck, not a result of the accused’s actions. They would contend that the accused’s misconduct created a grave and unacceptable risk to every other member of the unit and that they should be punished for the potential harm they could have caused. The prosecution would focus on the breach of trust and the potential for the misconduct to have caused a catastrophic failure.

A military defense attorney would use the lack of actual harm as their primary mitigating factor. They would vigorously argue to the panel that while their client’s actions were wrong, the fact that no one was killed and the mission was not compromised should be given immense weight. They will argue that this demonstrates the misconduct was not as severe in its actual impact. While this argument will not save the soldier from a conviction, it can be a very powerful and persuasive reason for a court-martial panel to show mercy and to adjudge a sentence of confinement rather than the death penalty.…

The offense of “endangering the safety of any such command” under Article 99 is defined as an act of disobedience, neglect, or intentional misconduct, committed before the enemy, that places a military unit, place, or property in a position of danger. To prove this offense, the prosecution must first establish that the accused committed a specific wrongful act—either by disobeying a lawful order, by being negligent in the performance of their duties, or by engaging in intentional misconduct.

Second, and most critically, the government must prove a causal link between that wrongful act and the endangerment. They must show that the accused’s specific action or inaction directly and foreseeably created a dangerous situation for the command. For example, if a soldier who is on guard duty (an act of neglect) falls asleep, and as a direct result, an enemy force is able to infiltrate the perimeter and attack the command post, the element of endangerment is clearly proven. The soldier’s neglect directly caused the danger.

A military defense attorney will challenge this by attacking the element of causation. They might argue that their client’s action, while perhaps wrong, did not actually cause any danger to the unit. They could contend that the danger was already present or was caused by some other intervening factor. The attorney would argue that the government has failed to prove the direct link between their client’s specific act and the endangerment of the command. The prosecution must prove this causal connection beyond a reasonable doubt to secure a conviction.…

This is a developing and complex area of military law, but it is highly likely that Article 99 can be applied to actions taken during cyberwarfare. The key jurisdictional element of Article 99 is that the accused must be “before the enemy.” While this has traditionally been interpreted in a physical, geographical sense, the nature of modern warfare is changing. A service member engaged in critical cyber operations against an active, hostile nation’s military networks could be considered to be “before the enemy.”

The specific acts of misbehavior listed in Article 99 could be adapted to a cyber context. For example, a cyber operator who, out of fear, “runs away” by abandoning their station during a critical enemy cyber-attack could be charged with cowardly conduct. An operator who is ordered to launch a counter-attack and willfully refuses could be charged with “willfully fail[ing] to do his utmost to encounter [and] engage” the enemy. An operator who deliberately crashes a key defensive system could be charged with “endangering the safety of any such command” through intentional misconduct.

A military defense attorney would raise a novel legal challenge, arguing that the traditional definition of “before the enemy” requires a risk of physical harm that is not present in a cyber context. However, a prosecutor would counter that a catastrophic cyber-attack can cause very real physical destruction and endanger lives, and that a soldier at the forefront of that digital battle is just as much “before the enemy” as an infantryman. A military court would have to make a final determination based on the specific facts of the case.…

Article 99 and Article 88 are distinct offenses, but conduct that involves expressing disloyalty under fire could potentially be charged under either or both, depending on the specific words used and the context. Article 88 specifically punishes a commissioned officer for using “contemptuous words” against high-level civilian leaders. If an officer, while under enemy fire, were to make a public, contemptuous statement about the President, that would be a technical violation of Article 88.

However, it is far more likely that such conduct would be prosecuted under the more serious and contextually appropriate Article 99. The officer’s disloyal statements could be charged as a form of “cowardly conduct” if the words were used as an excuse to avoid fighting. More likely, they would be charged under the clause that punishes any act that “endanger[s] the safety of any such command.” The prosecution would argue that an officer expressing disloyalty and a lack of faith in the mission while in direct combat has a catastrophic effect on the morale and fighting spirit of their subordinates, thereby directly endangering the entire unit.

A military defense attorney would face a very difficult case. The attorney would likely argue that the statements, while inappropriate, were a result of the extreme stress of combat and do not reflect the officer’s true character. However, an officer’s duty to lead and inspire confidence in their soldiers is absolute in combat. An expression of disloyalty that undermines the unit’s will to fight would be seen as one of the most serious failures of leadership and would be prosecuted as a grave offense under Article 99.…

When an accused service member claims their action, such as a surrender or a withdrawal, was motivated by a desire to preserve the lives of their soldiers rather than by personal fear, the primary defense is that the action was a “military necessity” and a reasonable tactical decision. This defense directly attacks the “shameful” or “cowardly” element of an Article 99 charge. The argument is that the accused was not failing in their duty, but was in fact performing the highest duty of a leader: protecting their troops.

To present this defense, a military attorney would need to build a strong factual case about the tactical situation at the time. They would introduce evidence of the overwhelming strength of the enemy force, the unit’s own casualties, their low supply of ammunition, and the lack of any possibility of reinforcement or relief. The goal is to show the court-martial panel that any further resistance would have been futile and would have only resulted in the pointless death of every soldier in the command.

The attorney would likely call a military tactics expert as a witness. This expert would review the evidence and provide a professional opinion that the accused commander’s decision to surrender or withdraw was a reasonable and prudent one under the extreme circumstances. The defense is not that the accused was not afraid—fear is expected in combat—but that their final decision was based on a rational, tactical analysis aimed at preserving life, not on their own personal fear causing them to abdicate their responsibilities.…

To prove that an accused “causes false alarms” or incited panic under Article 99, the prosecution must meet a high evidentiary standard. They must prove beyond a reasonable doubt that the accused’s specific action was the direct cause of the panic and, crucially, that the accused acted either with a specific “intent to cause panic” or “without any reasonable cause.” This protects soldiers who make a good-faith mistake in the heat of battle.

The prosecution would need to present clear evidence of the accused’s act, such as testimony that they yelled “We’re surrounded, run for your lives!” or began firing their weapon wildly at a perceived but non-existent threat. They would then have to present testimony from other soldiers in the unit, describing the effect of this action: that it caused them to become terrified, to abandon their positions, or to cease fighting in a panicked and disorganized manner. This establishes the causal link between the act and the panic.

The most difficult element for the prosecution to prove is the accused’s state of mind. A military defense attorney would argue that their client did not act with an “intent to cause panic” but was themselves reacting to a reasonably perceived threat. They would present evidence about the confusing and terrifying nature of the battlefield at that moment to show that their client’s alarm, while ultimately false, was not unreasonable. The government must overcome this to prove that the false alarm was caused without any justification whatsoever.…

The maximum punishments authorized under Article 99 are among the most severe in the entire Uniform Code of Military Justice, reflecting the extreme gravity with which the military views misconduct in the face of the enemy. For many of the clauses of Article 99, including cowardly conduct, shamefully surrendering, casting away arms, and willfully failing to engage the enemy, the maximum authorized punishment is death. This places these offenses on the same level as premeditated murder or spying in wartime.

These punishments are significantly more severe than for other, related wartime offenses. For example, desertion with the intent to avoid hazardous duty or to shirk important service (Article 85) carries a maximum punishment of a Dishonorable Discharge and confinement for five years. Disobeying a lawful order from a superior commissioned officer in wartime (Article 90) carries a maximum of a Dishonorable Discharge and confinement for ten years. While these are very serious, they are not capital offenses like most of the Article 99 violations.

This stark difference in punishment highlights the unique nature of Article 99. The article is not just about punishing disciplinary infractions; it is about enforcing the fundamental duties of a warrior in combat, where a single individual’s failure can lead to the death of their comrades and the failure of the mission. A military defense attorney defending an Article 99 case is operating in the highest-stakes environment of military law, where their client’s very life could be on the line.…

A verbal order from a superior can be a defense to an Article 96 charge, but it is a risky and fact-dependent one. The legal defense would be “obedience to orders,” which states that a service member is not culpable for an act that was done in compliance with an order from a superior that they did not know, and could not have reasonably been expected to know, was unlawful. The key is the reasonableness of the subordinate’s belief in the order’s lawfulness.

If a junior enlisted guard receives a direct, in-person, verbal order from the known commander of the confinement facility to release a specific prisoner, it would be reasonable for that guard to obey. The guard is following a direct order from the person they know to be in charge. In this case, if the commander’s order was actually unlawful, the responsibility would lie with the commander, not the junior guard who was obeying it in good faith.

However, if the circumstances are suspicious, the defense weakens. If the verbal order comes from an unknown officer, or is delivered over the phone, or is for the release of a high-risk prisoner in the middle of the night, a reasonable guard would be expected to question it and to seek verification through the chain of command or by demanding written orders. A military attorney would have to present evidence to show that, under the specific circumstances, their client’s obedience to the verbal order was a reasonable act, not a negligent one.…

Article 96 applies fully to a situation where the prisoner being held was confined as part of a non-judicial punishment (NJP) under Article 15. The UCMJ allows for certain low-level forms of confinement, such as “correctional custody,” to be imposed as part of an NJP for junior enlisted members. A service member who is serving this NJP punishment is in a formal, lawful custody status and is considered a “prisoner” for the purposes of Article 96.

The confinement facility staff or the personnel tasked with overseeing the correctional custody unit have a legal duty to maintain custody over these individuals for the full duration of their sentence. An NCO in charge of a correctional custody platoon, for example, has these prisoners “committed to their charge.” If that NCO, without proper authority, were to release a soldier from correctional custody early, they would be in direct violation of Article 96.

The legal analysis is the same as for any other type of prisoner. The government would have to prove that the soldier was a “prisoner” (serving lawful NJP confinement), that they were committed to the accused’s charge, and that the accused released them without proper authority. A military defense attorney would advise any NCO in charge of such a facility that they are legally responsible for the custody of those being punished and that an unauthorized early release is a serious criminal offense, not just a minor administrative error.…