Ask the attorney: Do I have to obey an unlawful order?

ABOUT THE AUTHOR: Heather Tenney is a partner in Tully Rinckey PLLC’s military law, federal employment and national security law practice groups, and currently serves as the primary attorney for consultation in these areas. She brought her skills as an advocate and negotiator to Tully Rinckey after serving with the U.S. Army’s JAG Corps.

Reader question: If my commander issues me an unlawful order, do I have to obey it?

The short answer is no; you do not have to obey an unlawful order from your commander. The Law of War Manual clearly states that it is the duty of service members to “refuse to comply with clearly illegal orders to commit violations of the law of war.” However, to quote the Manual for Courts-Martial, an order “is disobeyed at the peril of the subordinate.”

The Uniformed Code of Military Justice (UCMJ) criminalizes willfully disobeying a superior commissioned officer. Failure to comply with a lawful order could result in prosecution (UCMJ Article 90 in this case; or Article 91, non-commissioned officer; or Article 92, failure to obey without proof of willfulness). But failure to disobey an illegal order could result in criminal liability.

This leaves service members with a very heavy question: How should a service member decide which orders are illegal and must be disobeyed? It is not a political or ethical question, but a legal one.

Here are some common points of misunderstanding on the duty to disobey unlawful orders: who determines an order’s lawfulness, the legal obligations of service members, and when following an unlawful order may result in criminal liability.

Military judges determine the lawfulness of an order

Commanders and judge advocates general are not the ones who decide if an order is ultimately lawful. A military judge (or panel) determines an order’s lawfulness. If a service member is court-martialed under Article 90 for refusing to follow an allegedly unlawful order, a judge would decide the lawfulness question after a hearing. Should the judge find that the order was unlawful, the service member may be exonerated. But if the order is found lawful, conviction is likely.

This would look different in the alternative scenario, where a service member is criminally charged for committing a crime pursuant to an unlawful order. The judge would be determining whether the service member is criminally liable for following the unlawful order. Liability is related to but distinct from the lawfulness question. In other words, it is possible for a service member to carry out an unlawful order and not be found criminally liable for doing so.

Orders are presumed to be lawful

Service members do have a duty to comply with lawful orders, as well as a duty to disobey manifestly unlawful orders. These duties are not evenly weighted, however. When a superior commissioned officer orders a subordinate to engage in a military duty or act, the presumption is that the order is lawful. This is the inference of lawfulness.

There are limits to the inference of lawfulness: it does not apply to a manifestly illegal order.

Following an unlawful order does not necessarily equal criminal liability in all cases.

Be assured that military judges don’t expect all service members to be legal experts. Military law accommodates the practical necessity of obedience. So, while military judges decide the legal fact of an order’s lawfulness, they also consider whether the situation triggered the service member’s duty to disobey it. This involves a two-part test:

Knowledge of unlawfulness

Courts have consistently recognized that not all service members are equally equipped to assess an order’s lawfulness. In addition to the situation on the ground, a military judge may also consider the individual service member’s experience, age, training, and educational background.

When questions of an order’s lawfulness arise, service members are expected to perform their duties as they’ve been directed and trained. For example, service members should be trained in the appropriate use of force in a range of contingencies prior to an operation. Orders to deviate from that training, or orders that go beyond the bounds of standard operating procedure (SOP) present more of a liability risk.

Information about SOP or an individual’s training may be used as evidence in court. Take Army Sgt. Michael J. Smith for example: a military working dog handler in Abu Ghraib who was prosecuted for maltreatment of prisoners. He claimed he’d been following an order that he believed to be lawful. The verdict didn’t hinge on whether the alleged order was unlawful—it was—but whether Smith should have known the order was unlawful. Knowledge of unlawfulness triggers the duty not to comply with an order and thus liability for compliance.

Both Smith’s specialized dog-handler training and the SOP were used as evidence to show that Smith had knowledge of the order’s illegality and was therefore obligated not to comply. He was found criminally liable for following that order because his extensive training gave him the tools to recognize its illegality.

Manifestly illegal standard

Even the least experienced soldier is expected to refuse to follow a manifestly illegal order. If an order involves committing an obviously illegal act, the service member is obligated not to carry out the order. This is a high standard. It is not enough for the lawfulness of an order to be “debatable.” It has to be clearly illegal.

Military judges apply the ordinary sense and understanding standard. An order must be disobeyed when a person “of ordinary sense and understanding” would recognize the order as illegal and that following the order would be a crime. If an order meets this standard and a service member follows the order, then the service member may be held criminally liable for doing so.

A notorious example is Lt. William Calley, who was convicted for the murder of 22 civilians in My Lai during the Vietnam War. In court, Calley did not contest that he’d killed defenseless civilians. His defense was the fact that his commander had ordered him to do it. But because the order involved committing an act so manifestly illegal that any reasonable person would recognize it as a crime, Calley had a duty not to obey the order.

A soldier is not expected to make a sophisticated legal judgment in the field, but there are cases in which an order’s illegality is not in question: killing unarmed civilians is an example.

Navigating the duties to obey or disobey

In ordinary circumstances, a subordinate is not expected to (let alone obligated to) question their commander’s orders. Unless they have knowledge otherwise, orders are presumed lawful. If there is a question of lawfulness, service members are expected to apply their training, consider relevant policy and regulations, common sense and reasonableness, and request clarification through appropriate channels.

This article is for informational purposes only. Its content is not intended to constitute endorsement or legal advice, nor does it establish a client-lawyer relationship with Tully Rinckey PLLC or any of its affiliates.