The Reality of Lawful and Unlawful Military Orders

How to know when to obey, and when to stand your ground.

Credit: The Orders Project

By Franklin Rosenblatt and Colby Vokey

Much of the recent discussion about military orders has been simplistic: Is a given order lawful or unlawful? The reality is that military members more regularly face dilemmas about questionable orders. In many of these cases, resolving the question of lawfulness isn’t the main point.

We write based on our actual experience advising service members. We both served careers as military judge advocates, and continue as civilians representing military members. We have defended them at courts-martial, disciplinary proceedings, and separation boards. We have given legal advice to many more to help them navigate difficult situations and stay out of trouble. We are both part of The Orders Project, a group of military law experts who assist military members who have questions about lawfulness of orders.

First, the basics: Military members have a duty to obey lawful orders. Orders are presumptively lawful. Military members have a duty to disobey manifestly unlawful orders. US military law does not permit a Nuremberg defense—“I was just following orders”—especially if it involves the commission of atrocities.

Some members of the public might assume that orders issues arise when someone in the military is given an order and must make an instantaneous decision. The reality is different. First, soldiers in many cases are able to anticipate issues with questionable orders far in advance. Second, many of the complex issues that arise from questionable orders are beyond questions of their lawfulness.

To illustrate, we will use three scenarios. Because of the confidences we owe to clients we have counseled, these are presented as hypotheticals, but are close to real issues we have addressed with The Orders Project.

Scenario #1: “We’re deploying to Chicago”

A National Guard member calls. He is not currently mobilized but is told that his unit may receive orders soon for a deployment to a US city, possibly Chicago. He has been watching the news, has concerns about the legality of military deployments to US cities, and wants to know his options.

Addressing his concerns deals with more than deciding whether a deployment to Chicago is legal or illegal. After all, that answer seems to change by the day based on flurries of federal court actions imposing injunctions, stays, and activity on the US Supreme Court’s emergency docket. It would take a crystal ball, not legal advice, to determine whether in two months this question will be resolved.

What we can say is that the deployment is legally contestable, part of President Trump’s norms-pushing assertion of the use of the military domestically. It may not be what our client had in mind when he joined the military, but that is no excuse. We will advise him to follow orders, including an order to deploy to a US city, unless the order is manifestly unlawful.

Still, the client has options. If nearing the end of an enlistment term, he can choose to not re-enlist. He may have the chance to request schooling, reassignment, or duties consistent with where he believes he can make a more positive contribution than on this mission. If that doesn’t work and he is ordered to deploy to Chicago, he can ask questions, seek clarification, and attempt to positively influence his unit’s professional performance of its duties.

Scenario #2: “Change Your Recommendation from ‘Non-Concur’ to ‘Concur’”

A military staff officer in an operational command is asked to apply her expertise in reviewing plans for a new application of drone strikes. Applying her usual standards, she writes “non-concur” on the proposed action. She is told that this recommendation, though not a veto, is deeply unpopular because political appointees want to be able to say that there were no military objections to the plan. She feels pressure to be more of a “team player” or face ostracism, and possibly worse.

She is concerned enough to seek legal advice. What to tell her? It would be a mistake to fixate solely on the lawfulness of the strikes, which at the moment is the central topic of public discourse. This client’s concern is not with the lawfulness of any order but instead with pressure she feels to bend her professional standards and lend her credibility to a boundary-pushing use of force.

We could counsel this officer about how she could best achieve the objectives she has set out for herself. On the one hand, she would like to preserve what to that point has been a successful military career. Continued non-concurrence may be enough to change her supervisor’s subjective evaluation of her performance from “#1 out of 10 officers” to something less sterling, which would put her at risk of not being promoted.

At the same time, she does not want to live with the moral injury of compromising her integrity and doing something she knew was not right. She is allowed to memorialize the pressure she faces (and who is bringing it), seek clarification, stand her ground, relent, or seek new duties where she does not face this pressure. In addition to these options, we would advise that she must continue to obey lawful orders, including rules protecting classified information from unauthorized disclosure.

Scenario #3: “Shoot Protestors in the Legs”

This is a much-discussed vignette that is also based on reality. Here’s the scenario: a senior elected official dealing with protests in American cities says to his senior military advisor that the US troops on the ground should “shoot protestors in the legs.”

Unlike the first two scenarios, this may require an instantaneous decision and no time to call a lawyer. It is a test of the military leader’s judgment and mettle.

The military leader could respond, “Sir, that is an unlawful order!” That would be correct, of course, but it might not be the most realistic option in the circumstance. It would probably draw negative attention and get the military leader pulled from any further decisions that might be even more consequential. There is no obligation to self-sideline.

The leader could engage in minor acts of disobedience. He could ignore the order. He could interpret the guidance in a way that removes the illegal element. For example, he could advise: “Our elected official wants us to demonstrate firmness. As we do, we must at all times follow the law.” This guidance tries to meet the spirit of the politician’s intent while excising the unlawful demand of shooting protestors in the legs.

True, the military leader could face negative consequences for applying such interpretive license. If the elected official follows through on his instruction and demands specific compliance with shooting protestors, the military leader could be removed from his position and face an allegation of disobeying an order. In our view, the military leader would almost certainly prevail on the merits in the military justice system. That is because the order is manifestly unlawful, meaning that a person of ordinary sense and understanding would understand that it is not permitted. Still, we concede that being suspended and placed under investigation in the military is a deeply unpleasant experience that our clients will seek to avoid whenever possible. With military justice, sometimes the process is the punishment.

What we would not expect to see in this scenario is direct compliance; that is, the military leader parroting the instructions he received about shooting protestors back to his subordinates. If he did, we would expect his junior leaders to engage in the same sort of interpretative analysis above: seeking clarification, interpretive license, or outright disobedience. And at every level down the chain of command.

This example of less-than-complete obedience is not a weakness of the American military but a strength. American non-commissioned officers and junior officers are the envy of the world’s militaries for how they are empowered to take the initiative to accomplish their missions. US military members are not like the automatons in a Bertolt Brecht play, ready to carry out atrocities unthinkingly just because they are told to do so.

One of the most popular books read by junior military members in the United States is “A Message to Garcia.” It is a story of a young soldier who is given a difficult task and takes ownership to overcome obstacles and accomplish his mission. Like the character in the book, US military members are empowered to exercise initiative, self-reliance, and accountability to accomplish their tasks. Obedience to lawful orders is part of this equation, keeping leaders accountable and subordinates emboldened.

It is not the fault of our men and women in uniform that we occupy a unique historical moment, one in which they face a greater likelihood of being issued an unlawful order than most of them had ever imagined. But it is incumbent on us as a civil society to ensure they have the resources needed at their disposal to properly handle the situation if and when that unfortunate eventuality comes to pass.

Franklin Rosenblatt and Colby Vokey are both part of The Orders Project, a group of military law experts who assist military members who have questions about lawfulness of orders. If you are a service member seeking support, please contact them at ordersproject@nimj.org.