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 

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

CONCLUSION 

The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
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 

2

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

3

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).