Without clear definitions, commanders risk issuing unlawful orders, and troops risk obeying them.
.jpeg?sfvrsn=e13b9854_7 "Congress Must Define ‘Unlawful Order’ Under Military Law")
On Nov. 18, 2025, six members of Congress appeared in a video posted to X, urging members of the military and intelligence community to disobey illegal orders: “The American people need you to stand up for our laws and our Constitution. Don’t give up the ship.” This had two immediate consequences. First, President Trump accused the members of Congress of “seditious conspiracy” and treason (it wasn’t), calling for their arrests and later suggesting their execution. White House Press Secretary Karoline Leavitt responded afterward that Trump did not mean what he wrote.
Second, the “don’t give up the ship” message sparked a national debate about the members’ motives, what exactly an unlawful or illegal military order is, and what a service member can or should do when receiving one. The importance of this question reached a fever pitch when CNN and the Washington Post reported on Nov. 28 that Secretary of Defense Pete Hegseth ordered chain-of-command to “kill them all” during the very first boat strike on alleged narco-traffickers. We don’t know yet whether this was interpreted by Adm. Frank Bradley, who directed the mission, as authority to launch another missile to finish off the two survivors.
If Hegseth did say this, it was an order that can only be understood to give “no quarter” to the survivors, an order that is illegal under the laws of armed conflict that the administration claims to follow, and an order that Adm. Bradley should have disobeyed. In light of this reporting, there has never been a more pressing need for definitional clarity of what it means for a command to be “unlawful.” This article suggests six ways in which Congress may exercise its constitutional authority to “make rules for the land and naval forces” by clarifying conditions that make a military order illegal, and what to do when illegality is uncertain. Events are quickly forcing Congress’s hand.
In the video, Sen. Mark Kelly (D-Ariz), a retired Navy captain, said: “Our laws are clear. You can refuse illegal orders.” But are the laws about what makes an order “illegal” all that clear? In a limited way, they are. An order to kill the first vessel’s shipwrecked crew should never have been obeyed because those men were clearly not a threat. But an order that unlawful on its face is rare; most problematic orders are in shades of gray. As commentators and scholars have explained, what distinguishes a lawful command from an unlawful one is much blurrier than a bright line in all but the most obvious cases—like an order to shoot unarmed women and children. One reason for this lack of legal clarity is the dearth of case law, which means that “only the very easiest cases which involve obvious atrocities tend to be prosecuted,” as professor Mark Osiel writes in his book “Obeying Orders.”
Other sources are needed to fill the gap. Army doctrine explains, “Soldiers are bound to obey the legal and moral orders of their superiors; but they must disobey an unlawful or immoral order.” Further:
If the question is complex, Soldiers … should seek legal counsel. If circumstances do not permit that, Soldiers make the best judgment possible based on their understanding of the Army ethic and their conscience, as applied to the immediate situation.
But what informs their judgment under uncertainty? And what if they are wrong? What is the line between “excusable and inexcusable error?” As the Army’s doctrine continues:
Under normal circumstances, Soldiers … trust their superior’s orders and execute them to the best of their ability. However, making an ethical choice and acting on it when faced with an ethical or moral issue can be difficult. Sometimes it means standing firm and disagreeing with a leader. These occasions test character. If Army professionals perceive that an order is unlawful or immoral, they seek situational understanding regarding the order and its original intent. This may include asking for clarification from the person who issued the order.
But are these “normal circumstances?”
In February, Secretary Hegseth fired the Army’s and Air Force’s senior judge advocate general (JAG) officers, claiming they would be “roadblocks” to the administration. Despite the objections of senior military counsel, the United States conducted at least 35 boat strikes on alleged narco-traffickers in the Caribbean and eastern Pacific in 2025. Perhaps influenced by his legal counsel, the head of U.S. Southern Command, who had expressed reservations about the strikes, opted to retire early. Most expert commentators, including former JAGs (with only one or two exceptions), concluded the strikes are illegal.
In 2020, military justice expert Gene Fidell wrote:
It is tempting to suggest that Congress or the executive branch should clarify the law regarding unlawful orders, but military law is probably as clear as it can be considering the vagaries of military operations, Mr. Trump’s indifference to previously accepted norms of governance, the nation’s contemporary turbulence, and the sheer number of individuals who are authorized to give military orders. Although the precedents may not be known to the average soldier, every judge advocate is trained on these issues and any soldier who seriously doubts an order’s lawfulness should seek legal advice unless immediate action is demanded.
The “nation’s contemporary turbulence” is perhaps as obvious today as it was in the fall of 2020 in the prelude to the presidential election interference lawsuits and the height of the coronavirus pandemic. But several facts suggest that the law governing unlawful orders is not “probably as clear as it can be.” In fact, no exact definition of an illegal or “unlawful” order exists in military law—not in the Uniform Code of Military Justice (UCMJ), service regulations, or even in the explanation of the “lawfulness of orders” found in the Manual for Courts-Martial (MCM). This does, true to Fidell’s prediction, tempt one to consider whether legislation might “clarify the law regarding unlawful orders.”
The Current Legal Explanation of an “Unlawful Order” Is Too Subtle
Beyond the absence of a definition for unlawful orders, under the UCMJ, there is no affirmative duty backed by criminal sanction to disobey unlawful orders despite there being a strong professional norm and expectation to do so. Instead, there is only a duty to obey lawful orders. However, the UCMJ expressly proscribes two types of disobedience: In the MCM’s discussion of the first of these crimes, “Willfully disobeying superior commissioned officer” (10 U.S.C. § 890), it states that the “[l]awfulness of the order” is presumed and that “[a]n order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”
If a service member is court-martialed for disobeying an order, she can raise a defense that the order itself was illegal, but this is a question of law “to be determined by the military judge.” However, not all instances where an order’s legality is questioned will make it to court. As military doctrine cautions, soldiers are frequently faced with commands that raise moral, ethical, and perhaps even legal concerns. Officers, moreover, swear an oath of office distinct from enlisted members. Officers swear to:
support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.
In contrast, enlistees swear to:
support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.
Writing in the wake of the “don’t give up the ship” video, retired Lt. Gen. Mark Hertling emphasized that the officer’s oath—with its distinct lack of “obey the orders of the President … and the orders of the officers appointed over” her—conveys a long-recognized custom and professional expectation:
That omission is not an oversight. Officers give orders, evaluate legality, and act as the constitutional circuit breakers the Founders intended. They are expected—by law, by professional ethic, and by centuries of tradition—to exercise independent judgment when presented with a questionable directive. Officers are duty-bound to refuse an unlawful order. It is not optional. It is not situational. It is their job.
In other words, the legality of an order is always at issue whenever an order is given, meaning all the time. In this view, the first line of defense against an unlawful order is the first officer to receive it, who must gauge—tacitly usually—whether that presumption of legality holds.
But what follows in the MCM regrettably fails to provide adequate guidance for the “hard cases” in which an order is not patently unlawful. It goes on to say that:
the commissioned officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, custom of the Service, or applicable order to direct, coordinate, or control the duties, activities, health, welfare, morale, or discipline of the accused.
With a bit more refinement, the MCM continues:
The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the Service.
[And] “[t]he order must not conflict with the statutory or constitutional rights of the person receiving the order.”
The Military Judge’s Benchbook, providing the judge with an explanation by which to determine the lawfulness of an order, states: “A command is illegal if, for example, it is unrelated to military duty, its sole purpose is to accomplish some private end, [or if] it is arbitrary and unreasonable.”
So far, “lawfulness” depends on the order’s source: Did he or she have authority to give the order? It also depends on the object of the order: It must be a non-arbitrary and reasonable military duty or purpose, broadly defined. Further, it must not violate the rights of the order’s recipient. An order to execute detained, unarmed civilians who were directly participating in hostilities during a raid is patently unlawful, in that it clearly violates the Geneva Conventions and prohibitions on targeting noncombatants who are hors de combat. What about an order to fire a missile from an unmanned drone to kill alleged narcoterrorists on a boat who present a “threat” only in terms of the illicit narcotics they allegedly carry into the United States? Nothing in the MCM’s description of an order from a superior commissioned officer would say such an order is unlawful, let alone patently unlawful (a distinction with legal significance, explained below). It comes to the drone operator having received the order, and explicated with more detail, through the chain-of-command; it relates to a military mission; and it does not appear to violate the drone operator’s rights (or the rights of anyone else in the chain-of-command above him).
Is there anything else in the MCM that might provide guidance? Hardly. In its discussion of the crime of “failure to obey an order or regulation” (10 U.S.C. § 892), the MCM states that a “general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.” Therefore, for a general order that comes from, say, the president or defense secretary to a broad audience of subordinates—like the overall direction to conduct drone strikes on vessels in the Caribbean or eastern Pacific—we must add other conditionals on an order’s legality. It cannot violate the Constitution or federal law, and, like with the more specific order, an order cannot exceed the order-giver’s authority. In the case of drone strikes, the question of whether they exceed the president’s Article II authority, violate federal murder statutes, or conflict with international treaties that are part of the “supreme law of the land” is not necessarily obvious to the lay service member “of ordinary sense and understanding,” even if it ought to be to a JAG . If it is not so obvious, the service member has a legal defense under the Rule for Court-Martial should he ever be charged under the UCMJ with the underlying offense he was ordered to commit.
Whether a particular order is obviously unlawful (“patently” or “manifestly” unlawful) is not defined explicitly. Osiel describes it as an order that is criminal regardless of any tactical circumstance or condition, and in which a recipient’s “situational judgment” is unnecessary—the order’s “moral gravity, its procedural irregularity, and the clarity of the legal prohibition it violates” make it obvious. But contrasting these against orders that are not manifestly unlawful matters only if the recipient obeys a command and ends up prosecuted for committing an act that itself was criminal, like torturing a prisoner of war, and wishes to raise an “obedience to orders” defense. This categorization of “patently” or “manifestly” unlawful orders, in other words, does not have anything to do with a service member’s professional duty to disobey unlawful orders as a matter of course or help establish when such an order has been given.
Influences on the Obedience to Orders
An important, but not the only, function of military law is to keep the use of force within bounds of international law of armed conflict—to avert war crimes. The requirement of obedience to lawful orders plays a supporting role in that objective but clearly has the additional benefit of supporting a commander’s expectation for compliant subordinates. As military ethics expert Pauline Shanks Kaurin wrote in “On Obedience,” “in the military, disobedience is seen as undermining good order and discipline, unit cohesion, and ultimately combat effectiveness, as it produces chaos and unpredictable behavior in stressful situations such as combat.” Sociological and psychological evidence suggests certain factors predict compliance with orders (generally, not specifically military orders).
As one team of researchers wrote about obedience to military orders, “In bureaucratic organizations, a predisposition to obey is based on the assumption that the authority being exercised is legitimate … and is reinforced by the power of a superior to allocate rewards or sanctions.” In surveying more than 700 paratroopers in the late 1970s, post-My Lai, the researchers found that “those most committed to the military bureaucracy—highest ranking, getting more satisfaction from it, etc.—are the most likely to agree with compliance to legal orders (even if immoral) but not to agree with compliance to definite illegal orders, such as participation in war crimes” (emphasis added).
But predicting whether a person obeys a “definite illegal” order or a study of how and why a soldier disobeys a manifestly unlawful order are not the same as asking what factors influence a non-lawyer service member’s belief or conclusion that the order is lawful or unlawful. No such study or survey has been conducted. As someone who has been on the receiving end of orders long before I ever provided legal counsel on orders as they were developed, intuition and experience suggest three predominant influences: (a) rank: by this, I mean the rank of the order-giver relative to the order-receiver; (b) regularity: how routine or expected the task or mission is (the object of the order); and (c) trust: how much confidence the junior recipient has for the senior order-giver’s judgment, which includes a presumption that the senior order-giver has access to legal advice. This is a reasonable presumption given that military doctrine prescribes that judge advocates play integral roles in planning operations.
In other words, the higher the rank of the order-giver and the lower the rank of the order-recipient, the more routine or expected the subject of the order is, and the more trust the recipient has in the order-giver, the more likely it is that the order’s legality will not be questioned and will be followed.
A legal definition of what constitutes an illegal order can influence whatever psychological factors are subtly influencing a soldier’s good-faith but mistaken conclusion that an order is lawful or unlawful. Coupling that legal definition of “unlawful order” with a new affirmative duty to disobey unlawful orders will, in Osiel’s words, “encourage the exercise of deliberate judgment” rather than rote order-following that can have catastrophic consequences.
Framing Possible Legislation
Providing greater clarity to the professionals who frequently interpret the legality of orders and make difficult choices in the morally ambiguous conditions of combat, or when an order seems to come directly from the president or the secretary of defense, is imperative. If Congress were to amend the UCMJ with that end in mind, it’s reasonable to suggest that an amendment should be designed with a few key parameters.
First, it should not depart from the existing discussion of lawfulness in the MCM because its chief demerit is not its unfairness but its elusiveness; an amendment should refine and clarify it. Second, it should preserve the “inference of lawfulness”—little discussion is needed to explain the practical necessity of presumed lawfulness when orders may place service members in positions of danger when the mission demands it. Third, an amendment should reduce the legal haze that surrounds an order when its reasonableness is questionable—it should explain the conditions making it “unlawful.” Fourth, it should acknowledge that the more novel the order, or the higher the rank of the superior giving the order, the less clear the division between lawful and unlawful will be from the subordinate’s perspective. Fifth, the amendment should encourage or require the uncertain subordinate to seek clarification about the legality of the order from a superior and reinforce the role of the judge advocate in reviewing the order’s lawfulness.
Amending military law to give adequate notice to service members of what constitutes an “unlawful order” requires a package deal. The UCMJ punitive articles, the Rule for Court-Martial related to defenses, the discussion of “patently unlawful” in Part IV of the MCM, and the existing statute outside of the UCMJ that requires “exemplary conduct” by leaders would all need to be amended. The most important of these is the UCMJ punitive articles, but all others are logically and prudentially implied by it.
Recommendation 1: Define “Unlawful Order”—Preferably as an Addendum to Article 90, UCMJ (“Willfully Disobeying a Superior Commissioned Officer”)
Draft Art. 90a. Unlawful order defined
For the purposes of any investigation or court-martial of any offense under this chapter, or for the purposes of the “obedience to orders” defense in Rule for Court-Martial 916(d), an “unlawful order” is any order, direction, command, dictate, instruction, mandate, or any other demand, oral or written that—
(1) directs the commission of any crime or the violation of any other law or treaty of the United States or law of an individual State, or
(2) conflicts with the statutory or constitutional rights of the person receiving the order, or
(3) is beyond the organizational, regulatory, statutory, or constitutional authority of the person purporting to give it, or
(4) is contrary to the U.S. Constitution, including the powers vested in the branches of the federal government and the individual rights protected, or
(5) is not clear, specific, and narrowly drawn to accomplish a valid military purpose or duty. A valid military purpose or duty is one reasonably necessary to accomplish a military mission or, directly connected to the maintenance of good order and discipline, is reasonably necessary to safeguard or promote the morale, welfare, discipline, and usefulness of members of the command.
For an order to be legal, it must therefore not fall within any of these five conditions.
Recommendation 2: Make “Giving an Unlawful Order” an Offense Under the UCMJ
Draft Art. 90b. Willfully issuing an unlawful order
Any person subject to this chapter who, with knowledge of an order’s unlawfulness or with reckless disregard for its lawfulness—
(1) willfully directs, commands, dictates, or otherwise conveys, communicates, or expresses an unlawful order as defined in this chapter to an individual subordinate subject to this chapter, or to a subordinate unit or organization of any size; or
(2) having knowledge of any unlawful order issued by a person subject to this chapter or by any military or civilian court-martial convening authority identified in 10 U.S.C. §§ 822(a), 823(a), or 824(a), willfully transmits, forwards, communicates, or otherwise endorses the order to an individual subordinate subject to this chapter, or to a subordinate unit or organization of any size,
shall be punished as a court-martial may direct.
The language in (2) is designed to acknowledge that a particular order—like the boat strikes in the Caribbean and eastern Pacific—may originate with the president or secretary of defense, civilians who are also “court-martial convening authorities.”
Recommendation 3: Make “Failing to Disobey an Unlawful Order” an Offense Under the UCMJ
Article 92 currently states:
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
Add: to (3) is derelict in the performance of his duties, including the duty to disobey unlawful orders.
Recommendation 4: Amend Rule for Court-Martial 916(d)
The current text describing the affirmative defense of “obedience to orders” states, “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.”
Add: “Unlawful” is defined in Article 90a., UCMJ.
This language intends to put the onus on the superior to make clear an order’s lawfulness and on the subordinate to clarify its lawfulness when uncertain. By looping back the definition of “unlawful” in the UCMJ, it also would render this affirmative defense available for orders that are not necessarily only “unlawful [to] a person of ordinary sense and understanding.”
Recommendation 5: Amend the Manual for Courts-Martial, Part IV., Discussion and Explanation in Para. 16.c. (Article 90, UCMJ) and 18c. (Article 92, UCMJ)
This part of the MCM states: “[l]awfulness of the order” is presumed, and “[a]n order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”
Add: “Patently illegal” means no situational judgment is necessary to conclude it is a crime because its criminality either known to the subordinate or is so flagrant that its criminality would be obvious to civilians and non-lawyers; it is a subset of “unlawful” as defined in the Uniform Code of Military Justice. A subordinate’s inference of lawfulness shall not be based solely on (1) the rank or position of the superior issuing the order, except as an indicator of the person’s lawful authority to issue the order; (2) the regularity or precedence of the task, duty, or mission; or (3) the degree of confidence and trust the order recipient has for the order-giver’s judgment.
Under its constitutional power, Congress can direct the president to amend the MCM in the same way it used Article 33 of the UCMJ to direct the president to ensure that nonbinding prosecutorial guidance is promulgated and used Article 36 to authorize the president to “prescribe” rules of trial procedure and evidence for courts-martial.
Recommendation 6: Amend the Existing Statutory “Requirement for Exemplary Conduct”
Outside of the UCMJ, Congress has also enumerated several expectations it has for the decisions and actions of those uniformed personnel in leadership and command positions. This, too, should be amended to account for the proper reliance upon JAG officers in determining the lawfulness of an order.
Each service has its own “requirement for exemplary conduct.” The Army’s is 10 U.S.C. § 7233, which states (amended language italicized or crossed out):
All commanding officers and others in authority in the Army are required—
(1) to show in themselves a good example of virtue, honor, patriotism, and subordination, including obedience to lawful orders and rejection of unlawful orders;
(2) to be vigilant in inspecting the conduct of all persons who are placed under their command;
(3) to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; and
(4) to take all necessary and proper measures, under the laws, regulations, and customs of the Army, to promote and safeguard the morale, the physical well-being, and the general welfare of the officers and enlisted persons under their command or charge.; and
Conclusion
Clarifying the definition of an “unlawful order” and making the disobedience of an unlawful order an affirmative duty is both legislatively feasible and a practical imperative, considering the contemporary challenges facing the military under an administration that routinely pushes on the boundaries of legality. The six recommendations above do not contradict any existing military case law or any existing provision in the UCMJ. Instead, they preserve the necessary “inference of lawfulness” while acknowledging the real-world influences that inform a soldier’s inferences, and they add a duty to seek confirmation of legality when in doubt. These recommendations together refine and codify language already found scattered across relevant provisions in the MCM. In other words, the only new thing Congress would create is clarity in a notoriously opaque area of military law at a time when definitions are essential to ensure the military itself remains subordinate only to lawful commands by civilian authority.
It is difficult, at this point, to speculate on whether Congress would actively consider such recommendations. However, it is not so speculative to say that President Trump would not sign such legislation into law, nor approve of these amendments to the Manual for Courts-Martial. These recommended reforms should spark an overdue conversation and serve as a template from which to build such reform when the political winds are more favorable.
– Dan Maurer is a retired Army lieutenant colonel and judge advocate, with combat tours in Iraq as a combat engineer officer and later as legal counsel. Published courtesy of Lawfare.
