                          UNITED STATES, Appellee

                                         v.

                       Michael J. SMITH, Sergeant
                          U.S. Army, Appellant

                                  No. 09-0169

                         Crim. App. No. 20060541

       United States Court of Appeals for the Armed Forces

                          Argued October 8, 2009

                        Decided February 4, 2010

BAKER, J., delivered the opinion of the Court, in which ERDMANN,
STUCKY, and RYAN, JJ., joined. EFFRON, C.J., filed a separate
opinion concurring in part and in the result.


                                     Counsel

For Appellant: Lieutenant Colonel Jonathan F. Potter (argued);
Colonel Mark Tellitocci, Major Grace M. Gallagher, and Captain
Alison L. Gregoire (on brief).

For Appellee: Major Karen J. Borgerding (argued); Colonel
Norman F. J. Allen III, Lieutenant Colonel Francis C. Kiley, and
Major Lisa L. Gumbs (on brief); Lieutenant Colonel Martha L.
Foss and Captain Michael G. Ponds.

Military Judges:    Paul H. McConnell and John W. Rolph




            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Smith, No. 09-0169/AR


       Judge BAKER delivered the opinion of the Court.

       A general court-martial composed of members convicted

Appellant, contrary to his pleas, of conspiracy to maltreat

prisoners, in violation of Article 81, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 881 (2000), two specifications of

maltreatment, in violation of Article 93, UCMJ, 10 U.S.C. § 893

(2000), dereliction of duty, in violation of Article 92, UCMJ,

10 U.S.C. § 892 (2000), and indecent acts, in violation of

Article 134, UCMJ, 10 U.S.C. § 934 (2000).    The members

sentenced Appellant to a bad-conduct discharge, confinement for

179 days, reduction to the grade of E-1, and forfeiture of $750

pay per month for three months.    The convening authority

approved the findings, but approved a sentence that included

confinement for three months, a bad-conduct discharge, reduction

to E-2, and forfeiture of $750 pay per month for three months.

On review, the United States Army Court of Criminal Appeals

dismissed the specifications alleging indecent acts and

dereliction of duty, affirming the remaining findings and the

sentence.    United States v. Smith, No. ARMY 20060541 (A. Ct.

Crim. App. Oct. 27, 2008).

       On Appellant’s petition, we granted review of the following

issues:

  I.      WHETHER THE MILITARY JUDGE ERRED BY FAILING TO
          INSTRUCT ON OBEDIENCE TO LAWFUL ORDERS AS IT
          PERTAINED TO MALTREATMENT BY HAVING A MILITARY


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United States v. Smith, No. 09-0169/AR


         WORKING DOG (MWD) BARK AT A DETAINEE WHEN THERE WAS
         NO EVIDENCE BEFORE THE MILITARY JUDGE THAT SUCH AN
         ORDER WAS ILLEGAL.

  II.    WHETHER THE MILITARY JUDGE ERRED WHEN HE DID NOT
         INSTRUCT THE PANEL ON OBEDIENCE TO ORDERS (LAWFUL OR
         UNLAWFUL) AS IT PERTAINED TO MALTREATMENT BY HAVING
         A MWD BARK AT JUVENILE DETAINEES.

  III. WHETHER THE EVIDENCE FOR ALL MALTREATMENT
       SPECIFICATIONS WAS LEGALLY INSUFFICIENT, BECAUSE THE
       DETAINEES WERE NOT “SUBJECT TO [APPELLANT’S] ORDERS”
       AND DID NOT HAVE A “DUTY TO OBEY.”

For the reasons set forth below, we conclude that the military

judge did not err and the evidence was legally sufficient.

                             BACKGROUND

     Appellant was a military working dog (MWD) handler at the

Baghdad Central Confinement Facility at Abu Ghraib, Iraq.      Prior

to deployment, Appellant was certified as a dog handler at the

Military Working Dog Handler Course, located at Lackland Air

Force Base.   As part of the dog handler course, Appellant was

instructed on proper use of his MWD.      Sergeant First Class (SFC)

Hathaway, the course chief, testified that the training received

at Lackland included how to manage a dog safely, including

keeping the dog fifteen feet away from people or dogs and, if

that is not possible, keeping the dog muzzled.      At Abu Ghraib,

the military working dogs were used primarily as a show of

force:   to deter detainees from attempting to escape or riot.

However, Colonel (COL) Pappas, commander of the 205th MI Brigade




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United States v. Smith, No. 09-0169/AR


in Iraq, testified he authorized the use of MWDs in conjunction

with one interrogation during December 2003.

       Appellant and his working dog participated in the

interrogation of detainee Ashraf Abdullah Al-Juhayshi.

Testimony indicated that during this interrogation Appellant

allowed his unmuzzled MWD to bark in Mr. Al-Juhayshi’s face and

to pull a sandbag off his head with its teeth.   On January 13,

2004, Appellant was seen by Sergeant (SGT) Ketzer with his

unmuzzled, barking MWD in the doorway of the cell of two

juvenile detainees.    The detainees screamed with fear, and

Appellant was overheard saying shortly thereafter:   “my buddy

and I are having a contest to see if we can get [detainees] to

shit themselves because we already had some piss themselves.”

       In response to these two incidents, Appellant was charged

with maltreatment and conspiracy to maltreat.1   Before trial, the


1
    Specification 3 of Charge 1 states:

       In that Sergeant Michael J. Smith, U.S. Army, at or near
       Baghdad Central Correctional Facility, Abu Ghraib, Iraq,
       between or on about 29 December 2003 and on or about 3
       January 2004, did maltreat Mr. Ashraf Abdullah Al-Juhayshi,
       a person subject to his orders, by harassing and
       threatening Mr. Al-Juhayshi with his unmuzzled barking and
       growling military working dog.

Specification 5 of Charge 1 states: “In that Sergeant Michael
J. Smith, U.S. Army, at or near Baghdad Central Correctional
Facility, Abu Ghraib, Iraq, on or about 13 January 2004, did
maltreat two juvenile detainees, persons subject to his orders,
by harassing and threatening them with his unmuzzled barking and
growling military working dog.”

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United States v. Smith, No. 09-0169/AR


defense filed a motion to dismiss the maltreatment

specifications for failure to state an offense.     The military

judge denied this motion and later, after the Government’s case

on the merits, denied a motion for a finding of not guilty for

lack of sufficient evidence under Rule for Courts-Martial

(R.C.M.) 917.    At the close of the evidence, the military judge

gave an agreed upon, albeit complex set of instructions to the

panel members.   Regarding Specification 3 of Charge I, where

Appellant was charged with the maltreatment of Mr. Al-Juhayshi,

the military judge instructed that, “An order to use military

working dogs to aid in military interrogations, if you find such

an order was given, would be an unlawful order.”2    Regarding



Specification 1 of Charge 2 states:

     In that Sergeant Michael J. Smith, U.S. Army, did, at or
     near Baghdad Central Correctional Facility, Abu Ghraib,
     Iraq, between on or about 15 November 2003 and on or about
     15 January 2004, conspire with Sergeant Santos Cardona, to
     commit an offense under the Uniform Code of Military
     Justice, to wit: maltreatment of subordinate detainees,
     and in order to effect the object of the conspiracy the
     said Sergeant Smith directed, encouraged, or permitted his
     unmuzzled military working dog to bark and growl at
     detainees in order to make the detainees urinate or
     defecate on themselves.
2
  The parties do not agree on what, if anything, Appellant was
ordered to do with his MWD. They do agree that the record does
not reflect what if anything he was ordered to do and indeed the
military judge properly put to the members the factual question
as to whether an order was given. In our view, the military
judge’s descriptor “use of military working dogs to aid in
military interrogations” encompassed any possible “order” as
argued by Appellant at trial.

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United States v. Smith, No. 09-0169/AR


Specification 5 of Charge I, the maltreatment of the juvenile

detainees, the military judge did not instruct on obedience to

orders, lawful or otherwise.

                               ANALYSIS

Issue I:   Failure to Instruct on Obedience to Lawful Orders

     “‘The question of whether a jury was properly instructed

[is] a question of law, and thus, review is de novo.’”   United

States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (alteration

added in McDonald) (quoting United States v. Maxwell, 45 M.J.

406, 424 (C.A.A.F. 1996)).   “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.    See

United States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000); R.C.M.

916(d); R.C.M. 920(e)(3).

     Specifically, “[i]t is a defense to any offense that the

accused was acting pursuant to orders unless the accused knew

the orders to be unlawful or a person of ordinary sense and

understanding would have known the orders to be unlawful.”

R.C.M. 916(d).   The prosecution bears the burden of proving

beyond a reasonable doubt that the defense does not exist.

R.C.M. 916(b).   “The test whether an affirmative defense is

reasonably raised is whether the record contains some evidence

to which the court members may attach credit if they so desire.”

Davis, 53 M.J. at 205.   “This Court reviews the question of


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United States v. Smith, No. 09-0169/AR


whether the military judge correctly determined that an order

was lawful on a de novo basis.”   United States v. New, 55 M.J.

95, 106 (C.A.A.F. 2001).

     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.

United States v. Deisher, 61 M.J. 313, 317 (C.A.A.F. 2005); see

also Manual for Courts-Martial, United States pt. IV, para.

14.c(2)(a) (2005 ed.) (MCM).    Orders are presumed to be lawful.

Deisher, 61 M.J. at 317.   Additionally, Appellant contends that

if he reasonably believed an order was lawful, even if in fact

it was unlawful, then the members should have been instructed on

the defense of lawful orders.   However, some evidence must still

be presented that a lawful order was given.

     Appellant argues that an obedience to lawful orders

instruction should have been given to the panel regarding the

use of his dog against Mr. Al-Juhayshi as some evidence was

presented at trial that Appellant received an order to use his

working dog to aid the interrogation.    Such an instruction would

have informed the members that Appellant had an absolute defense

to the charged conduct if he was acting pursuant to a lawful

order.   As Appellant acknowledges, entitlement to the

instruction required some evidence that there was a lawful



                                  7
United States v. Smith, No. 09-0169/AR


order, or an order he might reasonably believe was lawful, given

to Appellant to engage in the conduct charged.   See Davis, 53

M.J. at 205.   That means that in this case, some evidence would

have to show that a lawful order was issued to Appellant to use

his MWD in the interrogation of Mr. Al-Juhayshi in the manner in

which the dog was used.

     The parties stipulated that Steve Stefanowicz, a civilian

contractor and interrogator at the prison, wrote in his notes

that working dogs were being used during interrogations and

“this program has been approved by COL Pappas and Chief [Petty

Officer (Chief)] Rivas, as of 31 DEC 2003.”   Appellant cites

this fact as evidence that he received an order to use his

working dog to aid interrogation.    In response, the Government

points out that “this program” appears to pertain to the general

use of a MWD, rather than the specific manner in which Appellant

used his MWD during Mr. Al-Juhayshi’s interrogation.   Mr.

Stefanowicz was not a witness at trial and, accordingly, no

clarifying questions were asked of him.3

     COL Pappas testified that he did not know why the

interrogator’s notes stated that the use of MWDs had been

approved for Mr. Al-Juhayshi’s interrogation because the only

approved use of the dogs he remembered was for one of three

3
  Appellant does not allege that he was denied access to Mr.
Stefanowicz as a putative defense witness or to prepare his
defense.

                                 8
United States v. Smith, No. 09-0169/AR


other high-value detainees.   Staff Sergeant (SSG) Fredrick, who

had been the noncommissioned officer in charge of the

confinement block, testified that Mr. Stefanowicz told him that

the use of dogs during the Mr. Al-Juhayshi interrogation had

been approved.   SSG Fredrick, in turn, told Appellant to use his

MWD during Mr. Al-Juhayshi’s interrogation.   The record does not

reflect what actions SSG Fredrick authorized; neither does it

indicate that SSG Fredrick directed Appellant to remove the

muzzle or to allow close contact between the dog and the

detainee.   Thus, while there is some evidence that Appellant

received an order to use his working dog in the context of Mr.

Al-Juhayshi’s interrogation, there is no evidence he received an

order, lawful or otherwise, to remove his dog’s muzzle or have

his dog remove Mr. Al-Juhayshi’s hood.

     A lawful order instruction would have been required only if

the order given had been lawful or could reasonably have been

believed to be lawful.   See United States v. Calley, 22 C.M.A.

534, 544, 48 C.M.R. 19, 29 (1973) (upholding the military

judge’s instructions that an order to shoot unarmed, detained

civilians could not be believed to be lawful by “a man of

ordinary sense and understanding”).   In this case, if an order

was given as Appellant argues it was, it did not issue from

competent authority.




                                 9
United States v. Smith, No. 09-0169/AR

        A competent authority is “a person authorized by applicable

law to give such an order.”    Deisher, 61 M.J. at 317; see United

States v. Wilson, 53 M.J. 327, 332-333 (C.A.A.F. 2000) (holding

that a state official was not a competent authority to discharge

someone from federal National Guard service).    In the context of

U.S. military operations in Iraq, Lieutenant General (LTG)

Sanchez, CJTF-7 commander, directed that his express approval

would be necessary to use MWDs for interrogations.

Specifically, LTG Sanchez listed the interrogation and counter-

resistance technique of using the presence of military working

dogs to “exploit Arab fear of dogs while maintaining security

during interrogations” as one of the techniques that “must be

approved by me personally prior to use” on “enemy prisoners of

war.”    As a result, the record reflects LTG Sanchez was the only

officer within Appellant’s chain of command in Iraq competent to

give that order.    This limitation was recognized by COL Pappas,

since he sought such approval to use MWDs in an interrogation,

even after an October 12, 2003, memorandum regarding the CJTF-7

policy.4    However, there is no evidence in the record of trial




4
  COL Pappas testified that he thought he had the authority to
approve the use of MWDs, and later discovered he was wrong and
needed to seek approval from LTG Sanchez.



                                  10
United States v. Smith, No. 09-0169/AR

that this approval was sought or obtained in Mr. Al-Juhayshi’s

case.5

     To the contrary, the CJTF-7 policy, both the September 14,

2003, and October 12, 2003, versions, required that MWDs be

muzzled and under control of a MWD handler at all times.     Part

of Appellant’s duty as a MWD handler was to act in compliance

with MWD policies, which called for “all reasonable efforts to

use all lesser means of force” and for “[h]andlers [to] be able

to control their dog.”   Appellant’s MWD was not muzzled and,

although arguably under Appellant’s control, came in close

contact with the detainee when it removed the bag from his head.

     In short, neither COL Pappas, Chief Rivas, nor SSG Fredrick

were authorized to give such an order without LTG Sanchez’s

approval.   Since neither COL Pappas nor Chief Rivas could

lawfully order a subordinate to act contrary to CJTF-7 policy,

it would have been unlawful for them to order Appellant to use

his MWD as he did.   Thus, any order in this regard issued

without LTG Sanchez’s authority would have been unlawful.

     In summary, (1) there was no evidence introduced that an

order to use dogs in the way alleged was given, and (2) such an



5
  Even for the other three high-value detainees for whom COL
Pappas did seek approval to use MWDs, COL Pappas stated that
those requests never reached LTG Sanchez and were, therefore,
never approved.



                                11
United States v. Smith, No. 09-0169/AR

order, had it been given, would have been unlawful.6    Therefore,

the military judge did not err by not giving an instruction on

obedience to lawful orders.

Issue II:    Instruction on Obedience to Orders

       The military judge gave an instruction for obedience to

orders for several of the offenses.7   However, the military judge

did not provide such an instruction regarding the specification

for maltreatment of the juvenile detainees.   Appellant contends

that the military judge erred in this regard.     Here too, the

predicate question is whether some evidence was reasonably

6
  In the context presented, we need not reach a conclusion as to
whether LTG Sanchez, or higher officials within the chain of
command, could have issued such a lawful order.
7
    The military judge stated:

       The evidence has raised an issue of obedience to orders in
       relation to Specifications 1, 3, and 4 of Charge I;
       Specification 2 of Charge II; the sole specification under
       Charge III; and Specifications 2 and 3 of Charge IV. An
       order to use military working dogs to aid in military
       interrogations, if you find such an order was given, would
       be an unlawful order. Obedience to an unlawful order does
       not necessarily result in criminal responsibility of the
       person obeying the order. The acts of the accused if done
       in obedience to an unlawful order are excused and carry no
       criminal responsibility unless the accused knew that the
       order was unlawful or unless the order was one which a
       person of ordinary common sense under the circumstances
       would know to be unlawful. . . . . [Y]ou must first decide
       whether the accused was acting under an order to use his
       military working dog to aid in military interrogations. If
       you are convinced beyond a reasonable doubt that the
       accused was not acting under such orders, then the defense
       of obedience to orders does not exist. If you find that
       the accused was acting under . . . orders, you must next
       decide whether the accused knew the orders to be illegal.

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United States v. Smith, No. 09-0169/AR

raised by the defense of obedience to orders, as opposed to

lawful orders.

     Appellant makes three arguments as to why “some evidence”

exists in the record that he was ordered to use his MWD against

the juvenile detainees.   First, Appellant argues that the dog

handlers had previously been ordered to frighten detainees with

their MWDs.   Thus, in Appellant’s view, it follows that use of

his MWD in the manner alleged was an extension of the command’s

effort to frighten and control detainees.    However, this

argument reaches too far.   As recounted above, the use of MWDs

in aid of interrogation, if authorized, was only authorized in

the case of a certain high-value detainee.   There is no evidence

in the record that Appellant mistook the juvenile detainees in

question for high-value detainees.   Neither does the record

reflect that these juvenile detainees could reasonably have been

mistaken for the high-value detainee for whom COL Pappas

testified he authorized the use of MWDs in aid of interrogation.

Additionally, Appellant’s use of his dog against the juveniles

in the manner alleged went beyond the patrolling duties to which

SSG Fredrick testified and the standard operating procedure

(SOP) defined.

     Appellant also argues that he could not have been where SGT

Ketzer described without a guard allowing him access.   In

related manner, Appellant argues that “[his] barking MWD and the


                                13
United States v. Smith, No. 09-0169/AR

yells from detainees were in earshot of the MP guards, who did

not respond, indicating that they were fully aware of what

Appellant was doing.”   The implication is that Appellant’s

conduct was condoned, if not authorized, by the command or at

least his immediate chain of command.    While other personnel may

have acquiesced or even condoned Appellant’s conduct by their

actions, it does not follow that a guard opening a gate or door

is equivalent to issuing an order to use a MWD to frighten

detainees, nor is it “some evidence” of such an order.

Moreover, SGT Ketzer testified that there was no immediate plan

to interrogate the juveniles and that Appellant had the stated

goal of making them defecate.

     In view of the fact that Appellant’s actions were neither

authorized nor ordered, the military judge did not err by

failing to instruct on the defense of obedience to orders.

Issue III: Legal Sufficiency of Evidence for Maltreatment

     “The test for legal sufficiency of the evidence is

‘whether, considering the evidence in the light most favorable

to the prosecution, a reasonable factfinder could have found all

the essential elements beyond a reasonable doubt.’”   United

States v. Ober, 66 M.J. 393, 404 (C.A.A.F. 2008) (citing United

States v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).    This Court

“review[s] de novo the question whether the evidence is legally

sufficient to support a finding of guilty.”   Id.


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United States v. Smith, No. 09-0169/AR

     Article 93, UCMJ, states:

     Cruelty and maltreatment[.] Any person subject to this
     chapter who is guilty of cruelty toward, or oppression or
     maltreatment of, any person subject to his orders shall be
     punished as a court-martial may direct.

The elements of maltreatment as defined in the MCM are:

     (1) That a certain person is subject to the orders of the
     accused; and

     (2) That the accused was cruel toward, or oppressed, or
     maltreated that person.

MCM pt. IV, para. 17(b).     The dispute in this case focuses on

the first element of the offense, specifically, whether the

detainees were subject to Appellant’s orders for the purposes of

Article 93, UCMJ.

     Appellant makes three arguments.     First, the detainees were

not subject to his orders.    Second, as a junior MWD handler he

was not competent, in any event, to issue the orders alleged.

Additionally, Appellant claims that while others may have been

in a position of authority over the detainees, he was not

because he did not have access to detainees on his own and did

not direct their daily activities.     Third, the detainees had no

duty to obey his orders.   Quoting Mynda G. Ohman, Integrating

Title 18 War Crimes into Title 10:     A Proposal to Amend the

Uniform Code of Military Justice, 57 A.F. L. Rev. 1, 61 (2005),

Appellant argues, among other things, that the detainees were




                                  15
United States v. Smith, No. 09-0169/AR

“‘not required to take an oath promising to obey the lawful

orders of the belligerent forces assigned to guard them.’”

     Our analysis begins with the text of the article.       Article

93, UCMJ, does not specifically address the context of

detainees, however, it is intended to protect persons outside

the U.S. military.    This is evident in the juxtaposition of the

first clause, which applies to “[a]ny person subject to [the

UCMJ],” and the second clause, which is addressed to “any person

subject to his orders.”    This interpretation is supported in the

nonbinding explanation in the MCM.       A person is subject to

orders, whether “subject to the code or not,” when “by reason of

some duty [he is] required to obey the lawful orders of the

accused.”   MCM pt. IV, para. 17(c)(1).      It is also supported by

persuasive authority found in the limited case law addressing

the maltreatment of persons outside the military.      In United

States v. Dickey, for example, the United States Army Board of

Review found that Article 93, UCMJ, extended to the accused’s

treatment of a Korean Service Corps member subject to the

accused’s orders as an employee.       20 C.M.R. 486, 489 (A.B.R.

1956).   The Board of Review noted that it was “immaterial

whether or not such maltreated persons be subject to the

[UCMJ].”    Id.   The essential qualification from the victim’s

perspective, therefore, is whether or not the victim is subject




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United States v. Smith, No. 09-0169/AR

to the orders of the accused, not whether the victim is a member

of the U.S. armed forces.

        The evidence in this case reflects the following.   Chief

Petty Officer Kimbro, who managed three Navy dog teams for the

entry control point at Abu Ghraib, testified that an SOP for

military working dogs at Abu Ghraib was approved in December

2003 and provided to all dog handlers, including Appellant.

Among other things, the SOP tasked Appellant to “reduce escape

attempts, encourage detainee compliance, and improve the

effectiveness of compound searches and inspections.”    The SOP

indicated that detainees were subject to his orders.    Under the

“Use of Force” section on “Rules of Engagement,” dog handlers

were instructed to yell “stop” prior to any release of a MWD,

with the expectation that any detainee will follow the order to

stop.    It is self-evident that these procedures would only be

effective if detainees were subject to the orders of MWD

handlers.

        Additionally, SSG Fredrick testified that the detainees

were subject to his and Appellant’s orders in their capacity as

military policemen.    According to SSG Fredrick, if an MP told a

detainee to do something or to stop doing something, the

detainee would have to follow orders or face consequences.

        Finally, in our view, the relationship between a prison

guard and prisoner or guard and detainee implies that the


                                  17
United States v. Smith, No. 09-0169/AR

prisoners are subject to the guards’ orders.   See United States

v. Finch, 22 C.M.R. 698, 701 (N.B.R. 1956) (“A brig prisoner,

until discharged, is a member of the military service and

regardless of his status . . . is not to be subjected to acts of

cruelty, oppression, or maltreatment even though no physical

harm ensues.”).   This relationship is recognized in the Third

and Fourth Geneva Conventions as well.8

     Based on this analysis, we hold that Article 93, UCMJ,

applies to detainees in U.S. custody or under U.S. control,

whether they are members of the U.S. armed forces or not.

Further, we conclude that viewing the evidence in a light most

favorable to the prosecution, a reasonable juror could have

found that Mr. Al-Juhayshi and the juvenile detainees had a duty

to obey Appellant as their prison guard.   Similarly, the

prisoner status of the detainees and Appellant’s role in

controlling them imparted a duty for them to obey Appellant.


8
 The Government did not introduce the Geneva Conventions into
evidence at trial, nor did it brief or argue its view as to
whether, how, and if the Third or Fourth Geneva Convention
applied in the context of Abu Ghraib at the time of Appellant’s
conduct. Therefore, we cite the Geneva Conventions for the
proposition only that as a general matter detainees are obliged
to follow the lawful orders of their captors and not as a basis
for finding legal sufficiency. See, e.g., Geneva Convention
Relative to the Treatment of Prisoners of War art. 82, Aug. 12,
1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Third Geneva Convention)
(appearing to include within its parameters a confined person’s
duty to follow orders); Geneva Convention Relative to the
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6
U.S.T. 3516, 75 U.N.T.S. 287 (Fourth Geneva Convention).

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United States v. Smith, No. 09-0169/AR

                           CONCLUSION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                               19
United States v. Smith, No. 09-0169/AR


     EFFRON, Chief Judge (concurring in part and in the result):

     I agree with the principal opinion that the military judge

did not err with respect to Issue I because the claimed order

was not issued by a competent authority.   See United States v.

Smith, __ M.J. __ (10-12) (C.A.A.F. 2010).   I also agree with

the treatment of Issues II and III.   With respect to Issue I, I

write separately to identify several additional considerations

regarding the reasons for rejecting Appellant’s position.

     First, Appellant raises claims now that he did not make at

trial.   The record contains no instructions proposed by the

Appellant.   Appellant did not object to the military judge’s

instructions as given.

     Second, in the assigned issue, Appellant contends that the

military judge erred in not providing an instruction on the

lawful orders defense.   Under the lawful orders defense, an act

“done in the proper performance of a legal duty is justified and

not unlawful.”   Rule for Courts-Martial (R.C.M.) 916(c); see

R.C.M. 916(d) Discussion (referring to R.C.M. 916(c) as

providing the defense with respect to an act done pursuant to a

lawful order).   In contrast to the defense of obedience to

orders under R.C.M. 916(d) and United States v. Calley, 22

C.M.A. 534, 48 C.M.R. 19 (1973), the lawful orders defense does

not entail consideration of whether an accused reasonably

believed that an order was lawful.    Compare R.C.M. 916(c) and
United States v. Smith, No. 09-0169/AR


R.C.M. 916(d); see also Dep’t of the Army, Pam. 27-9, Legal

Services, Military Judges’ Benchbook ch. 5, § 8, para. 5-8-2

(2002) (setting forth the instruction applicable to R.C.M.

916(c)).   The beliefs of an accused, even if reasonable, cannot

transform an unlawful order into a lawful order under R.C.M.

916(c).    As noted in the principal opinion, the record in this

case establishes that the orders Appellant claimed to receive --

to use his military working dog in aid of interrogation -- were

not issued by a competent authority.   __ M.J. at __ (10-12).    As

such, the orders were not lawful, and the military judge had no

duty to instruct as to obedience to lawful orders.   See id.

     Third, the military judge properly determined that for the

specifications related to Appellant’s use of a military working

dog on Mr. Al-Juhayshi, “The evidence has raised an issue of

obedience to orders . . . .”   The military judge then instructed

the members, consistent with R.C.M. 916(d) and our decision in

Calley, 22 C.M.A. at 541-43, 48 C.M.R. at 26-28, regarding the

defense of obedience to orders.   The instruction given by the

military judge enabled the members to evaluate whether Appellant

“knew the orders to be unlawful or a person of ordinary sense

and understanding would have known the orders to be unlawful.”

R.C.M. 916(d).   In a particular case, there may be significance

under R.C.M. 916(d) to the distinction between an order that is

unlawful because of an administrative defect, as in this case,


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United States v. Smith, No. 09-0169/AR


and an order that is unlawful because it commands the commission

of a crime, as in Calley.   In the present case, however,

Appellant has not contended that the military judge should have

given additional instructions in that regard.   Under the

circumstances of this case, the military judge did not err with

respect to the manner in which he instructed the members under

R.C.M. 916(d).




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