ORDERS: lawful and illegal

Military law draws a sharp but sometimes difficult line between lawful orders that you must obey and unlawful orders that you have a duty to refuse. Understanding that line—and the consequences on both sides—protects you, your unit, and the Constitution you swore to support and defend.

1. The basic rule: obey lawful orders, refuse unlawful ones

The Uniform Code of Military Justice (UCMJ) creates a general duty to obey lawful orders. Article 92 makes it a crime to violate or fail to obey any “lawful general order or regulation” or any “other lawful order” that you have a duty to obey. USCode.gov

At the same time, American military law and international law reject “I was just following orders” as a blanket defense. The My Lai prosecutions and later commentary make clear that obedience to a manifestly unlawful order does not shield a service member from criminal responsibility.

The Manual for Courts-Martial (MCM) provides the key bridge between these two ideas: an order is presumed lawful unless it conflicts with the Constitution, federal law, lawful superior orders, or otherwise exceeds the issuer’s authority.

2. What is a lawful order?

Neither the UCMJ nor the MCM offers a single sentence definition of “lawful order,” but they set out a consistent framework.

a. Presumption of lawfulness and source of authority

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.” JSC+1

In practice, a lawful order typically:

1. Comes from competent authority – a commissioned officer, warrant officer, NCO, or petty officer acting within the scope of their position and duties.
2. Falls within that authority – the order must involve a matter reasonably connected to military duties, mission accomplishment, discipline, or good order.
3. Does not conflict with higher law – the order cannot require conduct that violates the U.S. Constitution, statutes, lawful regulations, or clearly applicable international law.

The Court of Appeals for the Armed Forces (CAAF) has adopted a widely cited formulation. In United States v. Sterling, the court quoted the MCM and held that a lawful 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.” Midpage+1

In United States v. New, CAAF and later federal courts upheld a conviction for refusing an order to wear United Nations insignia as part of a peacekeeping deployment. The courts treated the order as lawful because it came from competent authority, related directly to the mission, and did not require the soldier to violate higher law or surrender his constitutional rights. Quimbee+1

b. Clarity and specificity

Lawful orders must be sufficiently clear that a reasonable service member can understand what the commander requires. Vague expressions of preference or informal guidance usually do not qualify as “orders” for Article 90–92 purposes; they may support other theories (e.g., dereliction) but not disobedience of a specific order.

3. What happens if you disobey a lawful order?

Disobedience of a lawful order can lead to serious criminal exposure:

• Article 90, UCMJ – willful disobedience of a lawful command of a superior commissioned officer. This offense carries the most severe range of punishment, particularly in time of war. JSC
• Article 91, UCMJ – insubordinate conduct (including disobedience) toward a warrant officer, NCO, or petty officer. U.S. District Court for the Armed Forces
• Article 92, UCMJ – failure to obey a lawful general order or regulation; failure to obey “other lawful orders”; and dereliction of duty. USCode.gov

Conviction under these articles can result in confinement, reduction in grade, forfeitures, and a punitive discharge. Article 92, for example, authorizes “such punishment as a court-martial may direct,” and military appellate decisions routinely affirm bad-conduct or dishonorable discharges for serious disobedience. Legal Information Institute.

A moral, political, or personal disagreement with an otherwise lawful order is NOT a reason to disobey a lawful order and is not a defense. A Gulf-II prosecution is an example of the consequences of disobeying a lawful order because you disagree with the basis for military actions in Iraq or Afghanistan.

Medical and operational cases illustrate the point. In litigation surrounding mandatory anthrax vaccination, courts and commentators noted that refusal to follow a valid vaccination order could lead to demotion, discharge, or imprisonment for disobeying a lawful order. Journal of Ethics+1

4. What is an unlawful order?

An order becomes unlawful when it directly conflicts with higher law or exceeds the issuer’s authority. Common categories include:

• Orders that require a war crime or clear violation of the law of armed conflict (e.g., targeting civilians, torturing detainees, executing prisoners). casebook.icrc.org+1
• Orders that require violation of the Constitution or federal statute (e.g., summary punishment without due process, clearly illegal domestic law-enforcement tasks).
• Orders outside the commander’s lawful authority (e.g., personal errands with no military nexus, purely private financial schemes).

The MCM’s lawfulness paragraphs, read together with the obedience-to-orders defense materials and ICRC commentary, support a “manifestly unlawful” standard: a subordinate cannot rely on superior orders when he knows an order is unlawful or when “a man of ordinary sense and understanding” would recognize its unlawfulness under the circumstances. casebook.icrc.org+1

The Calley/My Lai litigation remains the canonical U.S. example. The court-martial rejected Lieutenant Calley’s reliance on alleged orders to “waste” Vietnamese civilians because he either knew the order was unlawful or any ordinary person would have recognized its illegality. casebook.icrc.org+1

5. What happens if you obey an unlawful order?

Obedience to a manifestly unlawful order does not guarantee immunity. U.S. and international practice treat blind obedience as no defense when the illegality is obvious.

A subordinate who carries out such an order can face prosecution as:

• a principal under Article 77 (for example, as a co-perpetrator of murder, assault, or cruelty),
• a conspirator or aider and abettor under Articles 81 or 77, or
• an offender under Article 134 or specific war-crime statutes, depending on the conduct.

The ICRC’s case study on United States v. Calley summarizes the rule: acts done in compliance with an unlawful order are excused only if the order was not obviously unlawful to a person of ordinary understanding and the subordinate did not in fact know of its unlawfulness. casebook.icrc.org+1

In extreme cases—such as deliberate attacks on civilians or torture—service members may also face foreign or international prosecution, as seen in the post-World War II tribunals and in subsequent war-crimes jurisprudence. Scholarship@Cornell Law+1

6. What happens if you refuse an unlawful order—and what happens to the person who gave it?

When an order is truly unlawful, military law treats refusal as not only permissible but required. A common example is an order to commit a crime like murder or torture. The MCM, modern scholarship, and command-law guidance all emphasize this dual obligation: service members must obey lawful orders and must disobey unequivocally unlawful ones. NYU Journal of Legislation+2JAG Legal Center+2

a. Consequences for the subordinate who refuses

In theory, a service member who correctly refuses a manifestly unlawful order should not face criminal liability. In practice, however, the line may not be obvious in real time. A member who refuses an order that commanders later insist was lawful may:

• face charges under Articles 90, 91, or 92,
• receive adverse administrative action, or
• endure career consequences even if ultimately vindicated.

b. Consequences for the person giving the unlawful order

The individual who issues an unlawful order faces several layers of exposure:

• Direct criminal liability for the underlying offense (e.g., murder, assault, maltreatment of subordinates under Article 93, cruel or abusive treatment under Article 128, etc.).
• Liability for unlawful orders or dereliction under Article 92, if the order directs subordinates to violate law or regulation or reflects willful neglect of duty. JSC+1
• Status-based offenses, such as conduct unbecoming an officer under Article 133 or service-discrediting conduct under Article 134, when the unlawful order betrays the standards of officership or undermines public confidence.

Command-responsibility doctrines in both U.S. military law and international law also recognize that senior leaders may bear responsibility when they order, encourage, or knowingly tolerate unlawful acts by their subordinates. NYU Journal of Legislation+1

7. Practical guidance for service members

This framework yields several practical, legally grounded rules of thumb:

1. Assume orders are lawful unless something is clearly wrong. Military courts and the MCM start from a presumption of lawfulness; the burden to show unlawfulness typically falls on the member challenging the order. JSC+1
2. Check the source and scope of the order. Ask whether the person issuing the order has authority over you and whether the subject matter has a clear military connection, as described in Sterling and the MCM. Midpage+1
3. Identify obvious conflicts with law. Orders to target civilians, torture detainees, falsify official records, or engage in plainly criminal conduct cross the “manifestly unlawful” line. casebook.icrc.org+1
4. Document concerns appropriately. If you must refuse an order you believe is unlawful, articulating your legal and ethical basis at the time can matter later in both criminal and administrative proceedings.

Key primary sources and references

• UCMJ, Article 92 – Failure to obey order or regulation, 10 U.S.C. § 892. USCode.gov+1
• Manual for Courts-Martial, United States (2019 & 2023/2024 eds.), Part IV, paras. 14–16 (lawfulness of orders). JSC+2JSC+2
• United States v. Sterling, 75 M.J. 407 (C.A.A.F. 2016). Midpage+1
• United States v. New, 55 M.J. 95 (C.A.A.F. 2001), and related collateral review. Quimbee+1
• United States v. Calley (My Lai), and associated federal habeas litigation in Calley v. Callaway, 382 F. Supp. 650 (M.D. Ga. 1974). casebook.icrc.org+2Justia Law+2

Together, these authorities and cases articulate a coherent law of military orders: a profession grounded in disciplined obedience, but also in the personal duty to say “no” when the law and conscience demand it.

The experienced court-martial lawyers at Cave & Freeburg stand ready to represent you if you are accused of violating an order.