## Facts

- Sergeant Michael J. Smith, a U.S. Army military working dog handler, served at the Baghdad Central Confinement Facility (Abu Ghraib) in Iraq.
- Applicable training and doctrine required military working dogs to be kept at a safe distance from people or to be muzzled when in close proximity.
- During a detainee interrogation, Smith used an unmuzzled dog in close proximity to a detainee; the dog barked in the detainee’s face and pulled coverings off the detainee’s head.
- In a separate incident, Smith independently brought an unmuzzled dog close to two juvenile detainees confined in a cell/cage to frighten them, intending to see if they would defecate on themselves.
- Smith asserted that, at least regarding the interrogation incident, he acted pursuant to an order from a colonel; the colonel denied issuing such an order, and the circumstances indicated any such directive would have lacked required authorization and did not permit departing from muzzling/distance requirements.
- A general court-martial convicted Smith of conspiracy to maltreat prisoners and two specifications of maltreatment, among other offenses; on appeal, the indecent-acts and dereliction findings were dismissed, leaving the conspiracy and maltreatment convictions and an approved sentence.

## Issues

1. Whether the military judge erred by failing to instruct on obedience to lawful orders as to the maltreatment specification arising from the interrogation incident.
2. Whether the military judge erred by failing to instruct on obedience to orders (lawful or unlawful) as to the maltreatment specifications involving the juvenile detainees.
3. Whether the evidence was legally insufficient for Article 93 maltreatment because the detainees were not “subject to” Smith’s orders and did not have a “duty to obey.”

## Decision

- The Court of Appeals for the Armed Forces affirmed the Army Court of Criminal Appeals.
- The court held there was no instructional error regarding obedience to orders.
- The court held the evidence was legally sufficient to support the Article 93 maltreatment convictions.
- The remaining findings (conspiracy and maltreatment) and the sentence as affirmed below were upheld.

## Legal Principles

- An obedience-to-orders instruction is required only when the evidence reasonably raises the defense; it is not required where the record does not support that the charged conduct was done pursuant to an order.
- Obedience is not a defense to a manifestly illegal order; illegality is assessed objectively—whether a person of ordinary sense and understanding would recognize the order as unlawful.
- Even absent a full superior-orders defense, evidence of orders or perceived authorization may be relevant to what the factfinder may consider on issues such as the accused’s state of mind, depending on how the matter is raised and instructed.
- For Article 93, “subject to his orders” does not require a formal military superior-subordinate relationship; persons in custodial control who must comply with guards’ directions as a practical matter can fall within the statute’s protection.

## Conclusion

C.A.A.F. upheld Smith’s maltreatment convictions arising from the use of an unmuzzled military working dog against detainees, concluding that additional obedience-to-orders instructions were not warranted on the record presented and that detainees held in U.S. military custody are “subject to” their custodians’ orders for purposes of Article 93.


United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010)