A recent video featuring Democratic senators urging service members to “refuse illegal orders” ignited a firestorm of controversy, prompting former President Trump to call for punishments as severe as death. The debate isn’t simply political; it strikes at the heart of military law and the complex obligations of those in uniform.
The senators, including Elissa Slotkin of Michigan, intended their message as a defense of the Constitution. However, military legal experts warn that refusing orders, even those personally believed to be unlawful, carries significant and potentially devastating consequences under the Uniform Code of Military Justice (UCMJ).
The UCMJ prioritizes obedience, with exceptions only in cases of “manifest illegality” – orders so obviously criminal that any reasonable person would recognize them as such. This isn’t a matter of a sailor questioning Washington lawyers, as one retired Air Force JAG officer explained; it’s a system designed for decisive action and clear lines of authority.
Article 90 of the UCMJ allows for up to five years confinement, loss of pay, and dishonorable discharge for willfully disobeying a lawful command. During wartime, the penalty escalates to potentially include death. Article 92 adds further penalties for failing to obey any lawful order or regulation.
Military law doesn’t offer protection to those who simply follow orders, even with good intentions. The principle established after World War II rejects the notion of “just following orders” as a defense against criminal acts. Service members can be held accountable as “principals” if they carry out an illegal directive.
Orders violating the Constitution, the laws of armed conflict, or the rights of citizens offer no shield from prosecution. A service member could face charges of war crimes or dereliction of duty under Article 134, the UCMJ’s broad “general article.”
The standard for refusing an order is exceptionally high. It must be manifestly unlawful – akin to a command to kill civilians, torture detainees, or overthrow the government. Deployments, enforcement of federal authority, or presidential directives are presumed lawful unless specifically prohibited by law or court ruling.
Experts emphasize that service members aren’t expected to interpret the legality of presidential decisions. The advice to troops, one former Army JAG officer stated, should be to “do nothing different than you’re already doing.” It’s not their role to second-guess the political rationale behind a military operation.
The senators’ video, urging personnel to “refuse illegal orders,” lacks a clear definition of what constitutes an illegal order. This ambiguity fuels concerns about insubordination and undermines the critical principle of civilian control of the military.
Current regulations mandate that service members seek legal guidance through their chain of command or the Judge Advocate General’s office before refusing a directive, except in cases of clear criminality. This process ensures orders are vetted and accountability is properly placed.
History offers stark reminders of the consequences of unchecked obedience and ambiguous orders. The My Lai massacre and the Abu Ghraib prison abuses demonstrate that even following orders doesn’t absolve individuals of criminal responsibility.
The Nuremberg trials after the Holocaust solidified the principle that obedience can never excuse patently unlawful acts. Modern military law reflects this, emphasizing that some commands are so egregious they demand refusal, regardless of rank or position.
However, the line between unlawful and lawful remains blurry, particularly in modern conflicts. Strikes on suspected narcotrafficker boats, for example, may be unlawful under international law but wouldn’t necessarily appear manifestly unlawful to the troops carrying them out.
Refusing an order, even with a belief in its illegality, carries immense personal risk – potential court-martial, loss of career, and financial hardship. Obeying an unlawful order, however, could lead to accusations of criminal conduct. It’s a perilous catch-22 for those in uniform.
The core issue isn’t about empowering troops to defy orders, but about holding policymakers accountable for issuing lawful ones. As one expert stated, “Go after the policymakers who issue unlawful orders. Congress should be reining in the executive, not telling privates and lieutenants to decide what’s legal.”
For individual service members, the stakes are incredibly high. The UCMJ leaves little room for personal interpretation, offering no safe harbor for those who misjudge the legality of an order. The consequences of error can be life-altering.
