Following Orders Redux

Anybody who follows my musings on the blog or knows me personally also knows that I never served in the military.  Nevertheless, that universal fact does not disqualify me from having an opinion on military matters that are of interest to me or in the news.

This business of following orders has risen to the level of discussion here a couple of times already.  April 21, 2024 and, again on August 31, 2025.  

 

This week, there was a kerfuffle over Democratic lawmakers reminding the military to refuse illegal orders.  Between you and me I think they were trolling the president and, predictably, he rose to the bait.

All of this melodrama about sedition, treason and death by hanging is gonna bump-up against the First Amendment; you know, that business about freedom of speech.  Besides, everyone knows that the video was only addressing (without defining) an obligation to defy illegal orders.

I am told that, generally speaking, orders are presumed to be lawful and that a service member who disobeys a potentially questionable order does so  at their own peril.  The final determination of an order's lawfulness is ultimately a question of law decided-upon by a military judge in a court-martial.  That is a high bar.

A critical tenet of U.S. and international military law, established by principles like those from the Nuremberg Trials, is that "just following orders" is not a valid defense for committing crimes.  Service members have an affirmative obligation to refuse orders that are "patently illegal" or "manifestly unlawful". 

An order is considered unlawful if it:

• Requires the commission of a crime or a criminal act.
• Violates the U.S. Constitution, federal law, or applicable international law.
• Is contrary to a lawful superior order or regulation.
• Is beyond the authority of the official issuing it. 

Examples of clearly unlawful orders include orders to target or intentionally harm civilians, torture detainees, or falsify official records. 

 

A walk down memory lane would offer-up these examples:   

 

1968 — The My Lai Massacre (Vietnam)

U.S. soldiers were ordered to “kill anything that moves.”  That resulted in the slaughter of over 500 unarmed Vietnamese civilians.  Many soldiers refused.  Some tried to stop it.  Lt. William Calley was convicted for issuing illegal orders.  A helicopter pilot, Hugh Thompson Jr., famously ordered his crew to fire on fellow Americans if they continued killing civilians — because the laws of war required him to intervene.

2003–2004 — Abu Ghraib Prison Abuse (Iraq)

Some military personnel were ordered, encouraged, or pressured to commit acts of torture on detainees.  Several refused and reported it.  The Taguba Report (2004) confirmed illegal orders and systemic abuse.  Eleven soldiers were convicted.

2004 — Pat Tillman Cover-Up (Afghanistan)

After Army Ranger Pat Tillman was killed by friendly fire, military leadership pressured soldiers to falsify witness statements.  Several refused.  Investigations in 2005 and 2007 confirmed illegal directives to hide the truth and deceive his family and the public.

2007 — The Haditha Killings (Iraq)

24 unarmed Iraqi civilians were killed after Marines were ordered into a “search and destroy” posture inconsistent with rules of engagement.  While convictions were rare, the Pentagon acknowledged violations of the law of armed conflict and improper commands.

1944–1945 — The Dachau Killings (WWII)

U.S. troops were ordered by rogue officers to shoot unarmed SS prisoners after the liberation of Dachau.  Some soldiers refused; some complied.  Investigations documented the illegal order.

 

Illegal orders are a real thing.  And while all sorta people have all sorta opinions on this  week's news on the subject; the folks you don't hear from are those who are currently serving.  It's not that they're disinterested. It's not because they're uninformed.  It is a consequence they cannot legally enter the public debate.  Don't take my word for it - you can read all about it here.   

 

In my view the US military is the most professional on the planet.  I don't lose much sleep over the matter of those who serve understanding right from wrong. 

 

 * This blog post was in the queue before the events of yesterday afternoon when two West Virginia Army National Guard troopers were shot in Washington, DC.  More on that rapidly-developing situation as more solid details are known.   As I have said before; political violence is wrong.