Outside the Beltway

Just Following Orders

An oft-misunderstood legal principle.

James Joyner · Monday, January 5, 2026 · 12 comments

United States military officers are taught, from the time they are cadets and midshipmen, that they have a duty to disobey unlawful orders. That requirement, alas, is much narrower than commonly understood.

Writing for War on the Rocks in July 2017, Army Reserve Judge Advocate John Ford explained “When Can a Soldier Disobey an Order?“

[I]t’s not enough to assert that soldiers must follow all lawful orders and disobey unlawful ones. Not every case is clear-cut. Soldiers taking orders in combat must act quickly and don’t always have time to calmly deliberate on every decision. Asking soldiers to make fine legal distinctions in combat or else face court-martial is akin to asking them to sail between Scylla and Charybdis.

This tension is resolved by rules contained in the Manual for Courts Martial. The manual is an executive order that augments the Uniform Code of Military Justice by setting forth procedural rules and providing guidance based on case law for interpreting the code. Rule 916(d) of the Manual for Courts Martial says: “It 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.”

Ford cites Lieutenant William Calley’s actions in the Mai Lai massacre as a clear example of the latter. But he rightly notes that other cases are far more murky.

He cites an example relevant to the current debate:

[W]hat if that objection is rooted in a debate about the powers of the presidency? Can a soldier refuse an order to deploy in support of a military operation that Congress has not approved?

The president’s authority to use military force is a hotly debated legal topic. In recent years, presidents have used force against al-Qaeda and associated groups, and more recently against ISIL, in places as far-flung as Yemen, Somalia, Iraq, and Syria. These presidents relied for their authority on the 2001 Authorization for the Use of Military Force, a reading that stretches the meaning of the authorization to its logical limits, and arguably well beyond. In 2011, President Barack Obama went even further, launching a major military action in Libya without making any effort to get congressional approval or attempting to cite the Authorization for the Use of Militaƒry Force. Instead, he relied on a U.N. Security Council vote to create a no-fly zone as legal authorization for what became a forcible change of Libya’s regime. At any rate, the fact that the president’s war-making powers are hotly debated is why it would be virtually impossible for a servicemember to refuse to deploy because he believed the war was improperly commenced. When both sides have a plausible argument in their favor, the order is not “palpably illegal.”

A few servicemembers have tried unsuccessfully to disobey orders to deploy in support of these operations. In 2006, 1st Lt. Ehren Watanda refused to deploy to Iraq because he believed the war was illegal. His arguments fell on unsympathetic ears. In fact, Watanda was not even permitted to present his preferred defense because “[t]he order to deploy soldiers is a non-justiciable political question … an accused may not excuse his disobedience of an order to proceed to foreign duty on the ground that our presence there does not conform to his notions of legality.”

Courts are not empowered to second-guess policy decisions made by the political branches. In the end, Watanda was administratively discharged under other than honorable conditions for his refusal to deploy.

In 2016, Capt. Nathan Michael Smith deployed to Kuwait to support the fight against ISIL, but he also filed a lawsuit in federal district court challenging the legality of the order. The suit was rejected for the same reason Watanda’s defense failed: The judge ruled that the decision to wage war was reserved for the political branches. The fundamental problem in both the Watanda and Smith cases was that the order to deploy was not palpably illegal.

As we see, “palpably illegal” is a high standard. And rightly so. The Constitution vests enormous power in the President as commander-in-chief; it would be insanity to have his every order subject to veto by any of roughly a quarter million commissioned officers.

Doyle Hodges, a retired Navy commander and Princeton PhD who is now the Dean of Academics at the Naval War College, has also written extensively on the topic.

In a January 2020 War on the Rocks article titled “The Role and Rule of Law in the Military,” he hits the Nuremberg precedent head-on:

A popular misconception holds that the Nuremberg tribunals following World War II definitively discredited the notion that superior orders are a defense against war crimes. Indeed, in one of the more infamous cases, Otto Ohlendorf, who commanded a unit responsible for the murders of 90,000 Jewish civilians between June 1941 and March 1942, was convicted and executed, despite his defense that, “…it is inconceivable to me that a subordinate leader should not carry out orders given by the leaders of the state.” But the enduring legacy of the tribunal regarding the superior orders defense is far more nuanced. In the High Command Case, the tribunal held:

“Orders are the basis upon which any army operates. It is basic to the discipline of an army that orders are issued to be carried out. Its discipline is built upon this principle. Without it, no army can be effective and it is certainly not incumbent upon a soldier in a subordinate position to screen the orders of superiors for questionable points of legality. Within certain limitations, he has the right to assume that the orders of his superiors and the state which he serves and which are issued to him are in conformity with international law. … He has the right to presume, in the absence of specific knowledge to the contrary, that the legality of such orders has been properly determined before their issuance. He cannot be held criminally responsible for a mere error in judgment as to disputable legal questions.“

This language from the High Command Case is cited in the Department of Defense Law of War Manual as the guiding principle behind the U.S. military’s implementation and interpretation of the superior orders defense. The space between Ohlendorf’s shocking abdication of humanity and moral responsibility and the need to relieve soldiers of the legal burden of parsing each order for compliance with international law and norms created the category of “manifestly unlawful” orders. A manifestly unlawful order is one which an ordinary soldier would clearly recognize to be unlawful. Reminiscent of Justice Potter Stewart’s famous description of pornography (“I know it when I see it”), this standard of manifest unlawfulness applies only to the most egregious orders, such as orders to fire upon victims of shipwreck, or to kill unarmed prisoners who have surrendered and are under the control of U.S. forces.

Hodges then goes into a series of hypotheticals based on Tweets and the like from President Trump during his first administration:

As Mark Nevitt convincingly demonstrates, Trump’s threat to intentionally target Iranian cultural sites without any indication that they are being used for a military purpose, if framed as an order, would rise to the standard of manifest unlawfulness. Cultural sites are protected by customary international law; treaty law to which the United States is a state party, thereby incorporating the requirements of the treaty into U.S. domestic law under the Constitution’s supremacy clause; U.S. domestic law regarding war crimes; U.S. military law; as well as U.S. military policy. Short of the extreme examples identified in the Law of War Manual of machine-gunning helpless shipwreck survivors or summarily executing prisoners, it would be difficult to create a clearer example of a manifestly unlawful order. Confronted with direction to plan attacks that an ordinary soldier would understand to be unlawful, military leaders properly refused to follow that guidance.

[…]

[T]he idea that the military could serve as a bulwark against Trump’s most extreme impulses has been mooted at various times before and since he took office. For example, Gen. (ret.) Michael Hayden, who led the CIA and NSA, offered his view that the military would not obey orders to bomb the families of ISIL fighters. Gen. Joseph Dunford rejected then-candidate Trump’s calls to bring back waterboarding and other forms of torture, both because they were unlawful, and because they would “have an adverse effect … on the morale of the force.” Trump’s threats to rain “fire and fury” on North Korea in 2018 sparked a round of debate and discussion as to whether senior military and defense officials would or should follow an order to launch a preemptive nuclear strike on the hermit kingdom.

While these discussions often reflect the high level of confidence Americans have in their military as an institution, calls for the military to selectively disobey orders from the president pose a fundamental challenge to civil-military relations. As Rosa Brooks and I have each argued separately, selective disobedience of presidential orders, even orders that violate longstanding norms or values, poses an existential risk to the principles of democratic civil-military relations. To bestow on the military the duty and authority to decide which directives of the commander in chief should be disregarded as rash, unwise, or not in keeping with American values fatally undermines the principle of civilian control of the military.

As the confrontation over targeting Iranian cultural sites has shown, however, this does not mean that the military will be mindlessly obedient to every presidential whim. The military is institutionally reliant on obedience to law, policy, and regulation. But while the norm of obedience extends to most presidential directives, it does not extend to manifestly unlawful orders, as discussed above. The military’s reliance on law and legal interpretation has increased markedly since the Vietnam War, to the point where it is now routine for a commander to have a military lawyer at their side for almost every important decision. Even in the context of a president who may offer clemency to those who commit war crimes, the power of the law still serves as a guardrail against the most extreme presidential directives.

Cicero is supposed to have said that, “in times of war, the law is silent” (inter arma silent leges). The history of the U.S. military since Vietnam, and especially in the wars of the 21st century, suggests that the opposite is the case. Law continues to meaningfully shape the boundaries of military action by U.S. forces. But the boundaries imposed by the U.S. interpretation of the law are quite broad, and the scope of actions that are clearly prohibited by the concept of manifestly unlawful orders is quite narrow.

In an August 2022 essay for Lawfare (“A Duty to Disobey?“), Hodges examines the case of former Chairman of the Joint Chiefs of Staff Mark Milley’s various attempts to rein in what he believed to the the excesses of the commander-in-chief. He makes several pointss pertinent to the current discussion:

[T]he president’s war powers are broad and sweeping, and the determination of whether or not a military action is “necessary” is ultimately a determination of the elected president. While not directly comparable, this is similar to the position affirmed by the Court in Gillette v. United States that a person subject to military service claiming conscientious objector status must oppose all war on religious grounds, rather than limiting their objection to one particular war. The military doesn’t get to choose which wars it fights—that responsibility is left to civilians. As such, even the senior military officer doesn’t get to determine whether or not a war is “necessary.”

[…]

The military’s oath to “support and defend the Constitution of the United States against all enemies foreign and domestic” raises another possible source of legal objection to justify Milley’s efforts to stymie Trump. But the Constitution and federal law charge other offices and institutions—including the Supreme Court, the Office of Legal Counsel, the Department of Defense general counsel, and the legal adviser to the chairman—with determining the legality and constitutionality of orders. Milley’s expertise is in military matters, not constitutional law.

[…]

Disobeying unlawful orders is a critical element of military professionalism and the rule of law. But the nature of presidential powers and authority surrounding the use of force makes it unclear when a hypothetical order by President Trump to attack a foreign power or deploy troops into the streets would rise to the standard of manifest unlawfulness required to trigger disobedience. And, in fact, a large part of the chairman’s role (and that of the officials charged with ensuring the legality of executive action) would be to tailor the implementation of such an order to ensure that it complied with all relevant law.

[…]

Politicians are chosen and held accountable by election, impeachment, and political pressure. Generals are not. No one voted for Milley. So there are some decisions Milley didn’t have the authority to make. Choosing to “fight” the president, rather than allowing the constitutionally mandated mechanisms of impeachment or replacement under the 25th Amendment was just such a decision. While Trump could have fired or court-martialed Milley, had Milley’s insubordination been direct and clear, Milley’s attempt to hide it from the president meant that the general was intentionally short-circuiting even that extreme mechanism of accountability. Milley’s decision not to resign but, rather, to force the president to fire or punish him, was a stark departure from the military’s fundamental duty to follow and execute lawful orders from civilian authorities.

As noted in yesterday’s piece, “The Legality of the Maduro Raid,” there is widespread consensus among experts from across the political spectrum that the mission violated rather basic principles of international law to which the United States has committed itself through various treaties, including the United Nations Charter. But, as noted by Jack Goldsmith (and cited in that post), the same could be said for countless military operations undertaken over the decades under orders from many Presidents. Those orders were not “manifestly illegal” for our purposes here.

American military leaders could have refused to carry them out, but they would have had no legal standing to do so. They could have resigned in protest but, as Hodges rightly argues, that would create a crisis in civil-military relations. Absent manifest illegality, officers are expected to subordinate their policy preferences to those of duly elected civilian leaders. Which is why there have been only a handful of cases in the modern era of our officers refusing to carry out presidentially ordered missions.

It’s noteworthy that the only serious calls I’m aware of from the punditry for the generals to act as a bulwark against unwise presidential decisions have come during Trump’s two terms. The irony is that the brass over the last several decades has tended to be far more sympathetic to the policy preferences of Republican presidents. Indeed, they scarcely managed to hide their antipathy for President Clinton and, to a much lesser extent, Obama. Yet, aside from a lone lieutenant colonel who was rightly court-martialed, there was never a question of their carrying out orders from their commander-in-chief.