The six well-intentioned congressional Democrats who recorded a video exhorting U.S. service members to disobey illegal orders likely did more harm than good. For those of us who appreciate the quandary our service members are actually in, the lawmakers’ video comes across as a political stunt that disrespects those in uniform. The video is disrespectful because it demands that military members disobey unlawful orders without specifying just what military orders they are to disobey and without acknowledging the grave risk that disobedience carries. Thus, the lawmakers who recorded it only added to the moral injury many of those in uniform are already experiencing.
The lawmakers only added to the moral injury many of those in uniform are already experiencing.
The senators and representatives in the video — all of whom served in the military, the intelligence community or both — say they are speaking directly to our military and intelligence community. They argue not only that military members “can” refuse unlawful orders, but that they “must refuse illegal orders.”
The video so perturbed President Donald Trump that he shockingly called to have the lawmakers hanged for treason, though he has since said that he wasn’t threatening them.
The lawmakers’ video is dangerously vague and dangerously wrong on the law, putting our service members in even more of a moral quandary than they are already face. We don’t know what military orders the lawmakers are referring to — since they glaringly fail to be specific — but it’s likely that such orders aren’t so patently unlawful that they carry a legal duty to disobey. That means such orders carry a presumption of legality, and disobeying them would come at a great risk to a service member’s career and liberty. That great risk is something the lawmakers blithely ignore.
If we assume the lawmakers are referring to the lethal boat strikes the administration has been ordering against alleged drug smugglers in the Caribbean and Pacific, even those seemingly unlawful orders are cloaked with a patina of legality thanks to a still-classified Department of Justice memorandum. So military members can obey orders directing lethal boat strikes, and do so without liability for the legal consequences, because such orders are presumed to be lawful.
Conversely, if a service member were to interpret the vague congressional demand to “refuse unlawful orders” as permission to not obey orders to strike such boats, then that service member would be refusing at the risk of having to prove the illegality of the order in a court-martial for disobedience (a military crime). A service member can choose to disobey, given the apparent illegality of killing people who don’t pose an imminent threat outside of wartime, but despite the lawmakers’ language, the “can” is not a “must.”
It’s awfully cavalier for lawmakers to urge that some unspecified order be disobeyed when they’re not the ones who’d be risking their career or even jail time for refusing.
To put a finer point on it, the lawmakers’ video ignores military members’ overarching legal duty to obey lawful orders, upon pain of military prosecution; it also ignores that military orders carry, per law, a presumption of legality, as long as the order relates to a military duty and is given by a proper authority. According to the “Manual for Courts-Martial,” an order is “inferred to be lawful, and it is disobeyed at the peril of the subordinate.” This presumption of lawfulness of orders makes sense, given that obedience to orders is the lifeblood of the most hierarchical organization in American society. Our military demands compliance with its orders to be effective.
It’s cavalier for lawmakers to urge that some unspecified order be disobeyed when they’re not the ones who’d be risking their careers or jail time.
While military members can refuse to obey orders they believe are unlawful, they can be court-martialed for doing so. And at that point, it would be up to a military trial judge to determine, as a matter of law, whether said orders were lawful or unlawful. The military also could always forgo court-martial and instead use what’s called adverse administrative action to force a discharge, which would make it more difficult for a judge to answer the question about a particular order’s legality.
Critically, there is a tiny subset of orders that military law refers to as “patently” or “manifestly” illegal — for example, an order “that directs the commission of a crime.” For these orders, there is no presumption of legality. If a military member carries out a patently unlawful order, then that member is criminally liable.
However, the bar for what constitutes a patently unlawful order is high and has, practically speaking, been largely reserved to obvious war crimes. The concept was forged during the famous Nuremberg trials, when the victorious Allies refused to allow the “superior orders” defense to excuse the worst industrial-scale atrocities witnessed by mankind. The Nuremberg legacy is that a “patently unlawful order” must be disobeyed, and the highest U.S. military appellate court has described such an order as “one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.”
The court applied this standard to uphold U.S. Army Lt. William Calley’s murder convictions for killing unarmed Vietnamese men, women and children at the hamlet of My Lai during the Vietnam War, despite his Nuremberg-esque defense that he was just following orders. The orders to strike alleged members of drug cartels — when they don’t pose an imminent threat and fall outside of any armed conflict the U.S. is engaged in — are unlawful. But the memorandum from the Justice Department’s Office of Legal Counsel provides enough legal cover, within the context of stretched legal theories of targeted killings developed during the global war on terror, that they do not rise to the level, for a service member, of “patently unlawful.” Hence, telling service members that they “must” disobey unlawful orders not only is legally wrong, it also exacerbates the moral injury already incurred by those who face the dilemma of being given unlawful orders that aren’t unlawful enough to trigger a legal duty to disobey. The predicament members of the military may find themselves in is far too complicated to be reduced to a video that generically encourages service members to “refuse unlawful orders” and tells them that the lawmakers will have their backs. This Congress, to which the Constitution grants the sole power to declare war, can’t even pass a resolution to order the president to stop the boat strikes. Nor was Congress able to pass a proposed resolution directing the president not to attack Venezuela. So the promise from these six lawmakers to protect service members who disobey orders is indeed a hollow one. The promise from these lawmakers to protect service members who disobey orders is a hollow one. It’s unreasonable, then, to demand that service members risk their careers and possibly their liberty by refusing orders that indeed may be unlawful, but are not patently so. Certainly, the execution of such orders carries moral risk and contributes to the moral injury to service members who suspect such orders are wrong but are assured by officials that they are lawful. Yet career jeopardy and risk of jail time typically outweigh the accumulating moral injury of obeying orders that are unlawful but deemed lawful by the administration. However, if U.S. service members are ordered to use lethal force against the American people peacefully exercising their First Amendment rights while U.S. forces are deployed to American cities, such patently unlawful orders must be, and hopefully would be, disobeyed by commanders who bear the responsibility to shield their troops from such orders. What these lawmakers should have done is work to get enough bipartisan support to stop the executive branch’s excesses. Instead, they confused the issue and wrongly put service members in the middle of a political struggle. The sooner lawmakers on Capitol Hill realize that the military is not going to save us — and that’s by design — the sooner they will acknowledge that that’s a job for civilians. Hopefully with Congress leading the way.
Rachel E. VanLandingham, Lt Col, USAF (ret.) is the Irwin R. Buchalter Professor of Law, Southwestern Law School, Los Angeles and president emerita of the National Institute of Military Justice. 
