United States v. Jeffers

In my view, it is Congress who “make[s] Rules for the Government and Regulation of the land and naval Forces,” not the Manual drafters of the Discussion section of RCM 801(e)(5). U.S. Const., art. I, § 8, cl. 14. The majority continues to follow the lead of the Manual drafters in holding that the lawfulness of a disobeyed order is not an element of a criminal offense but a question of law to be decided by the military judge alone. I again must disagree and would hold that it is an element of the offense of disobedience of lawful orders under Article 92, UCMJ, which should have been decided by…