Can Servicemembers Really Refuse an Unlawful Order?

Yes. But it can ruin your life if you get it wrong

Photo by the author. Arlington National Cemetery.

Just a note: I am not an attorney and this is not legal advice. I’m writing based on my experience as a noncommissioned officer who served in two branches of the US military.

Troops swear an oath to the Constitution. Not to a president. Not to a general. Not to the person screaming at you to hurry up because they’re late for their briefing.

The Constitution, as it’s stated in the oath of enlistment, includes our own laws, the Uniform Code of Military Justice (UCMJ), and every treaty the United States signs on things like torture and the laws of armed conflict.

That oath gives you the right, and in some cases the obligation, to refuse an unlawful order.

The problem is those two words: unlawful order.

The UCMJ doesn’t define it.

Commanders don’t brief it.

There is no guidance whatsoever on what makes an order unlawful.

And the reality is brutal: the only person who can actually declare an order unlawful is the military judge you’ll meet after you obey it or after you refuse it.

In other words, you don’t get clarity up front. You get clarity at your court-martial or war crimes tribunal.

I know, I know. It’s a crock of shite. It’s simply one of the many risks of enlisting in the military.

Most troops will never face a truly illegal order. But history reminds us it happens. The line is usually crossed when someone tries to drag you into a criminal act like killing unarmed civilians, mistreating detainees, attacking noncombatants, or using force that violates the “law of war.”

I’m using an old term for what is now called International Humanitarian Law (IHL) or the law of armed conflict. ‘Law of war’ just has fewer syllables and I’m writing this on my mobile device to get it out quickly.

But how will soldiers, sailors, airmen, Marines, and guardians know when something is unlawful?

For domestic deployments, Posse Comitatus and the Insurrection Act create a legal jungle where only military lawyers dare to tread. Orders to operate on US soil require very specific conditions.

But again, you won’t know whether a judge agrees with you until you’re already in front of one.

For overseas deployments, the question becomes whether the mission is even lawful in the first place. The Constitution says only Congress can declare war. Yet we haven’t actually declared war since 1942, and courts have never knocked down the modern “president sends troops wherever the hell he wants” model.

Orders to deploy are presumed lawful unless a military judge later says otherwise.

Wait, Wes! Hold the phone. You’re saying you can go on a lawful deployment, do military stuff, and come home and only later, after the fact, have the entire mission declared illegal… and still be buggered?

Ahem, yep, a military deployment can be declared unlawful after it ends through judicial review, legislative action, or international tribunal.

Once deployed, the focus shifts from the deployment to the behavior. A “patently illegal” order usually amounts to one thing: an order to commit a crime. Murder, torture, rape, execution of detainees, targeting civilians, or the like.

A lot of the public debate on “illegal orders” spins off into the ditch because people keep talking about the military as if it’s one big green mass wearing identical boots and carrying identical responsibility.

It isn’t. The system was built with two very different oaths: one for enlisted personnel and one for officers.

That split is the foundation of American civil–military relations, and ignoring it leads people to believe everyone in uniform shares the same burden when someone up the chain goes rogue.

They don’t. And that difference matters.

Just a quick aside, for those who may be unaware (oversimplified in the interest of not getting too far off topic): the officer class are individuals who complete a four-year degree program before joining the military. College is generally required to be commissioned as an officer. Let’s call these folks “white collar.”

The other class is “enlisted” and can join the military with a high school diploma or GED. And I would be remiss if I didn’t mention that a significant chunk of enlisted also have college degrees. I attended enlisted infantry basic training with a kid who had just graduated from Harvard with a bachelor’s in international relations. Could have been an officer, but decided to enlist instead. Stranger things have happened.

Just to complicate things, there are warrant officers and enlisted noncommissioned officers, but this digression is getting away from me, so let’s bring it back to orders.

Enlisted troops swear to support and defend the Constitution, and to obey the orders of the President and the officers appointed over them, as long as those orders are lawful. The UCMJ is blunt on this point: no enlisted service member is permitted to follow an unlawful order. But the oath also reflects reality. Enlisted troops exist inside a command structure where their accountability runs upward.

My enlisted job was to close with and destroy the enemy, not to act as constitutional referee on the fly.

Oath of enlistment:

I, _____, do solemnly swear (or affirm) that I will 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. So help me God.

Officers live under a different promise.

Their oath is shorter and heavier. They swear to support and defend the Constitution, to bear true faith and allegiance to it, and to faithfully discharge the duties of their office. They take that obligation freely, with no mental reservation.

I, ___, do solemnly swear (or affirm) that I will 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. So help me God.

What they don’t swear is just as important: nowhere in the officer oath does it say they must obey the President or the officers above them.

That omission is deliberate. Officers are the system’s circuit breakers. They’re expected, by law, by professional ethics, and by the very design of the republic, to exercise independent judgment when a directive comes across their desk that doesn’t smell right.

Officers are required to refuse unlawful orders. Required. Not encouraged. Not advised. Required.

So when lawmakers talk to “the military” as if every rank shares the same responsibility to stop an unlawful command, they flatten the structure that keeps the whole machine stable. Enlisted troops obey lawful orders. Officers ensure those orders are lawful before they ever reach the enlisted.

If I’m an enlisted squad leader, and an order comes down to secure that airfield, I would assume that my company commander, XO, and platoon leader (all officers) have vetted the order for its legality. My job is merely to take the airfield and keep my squad alive and healthy.

The real constitutional backstop has always been the officer corps.

In theory, then, this should mitigate some of the burden for enlisted who are just following orders. Alas, the Nuremberg defense has been rejected time and time again. Despite not getting paid the big bucks like your officer overlords, you’re still expected to know when an order reeks of illegality.

Wait, so what happens if I think an order is unlawful and refuse it, but it turns out to be lawful?

Penalties for disobeying a lawful order in the vary depending on the severity and can include non-judicial punishment like reprimands, extra duty, financial penalties, or more severe consequences like a court-martial.

A court-martial can lead to a dishonorable discharge, forfeiture of pay, confinement, reduction in rank, and in serious cases, imprisonment for years.

Okay, So How Do You Know If an Order Is Illegal?

You don’t. Not with certainty.

The law only gives you two options: obey or refuse. And whichever you choose, the legality gets sorted out later: by a court-martial, a civilian court, or, if things go very sideways, an international tribunal.

That’s the razor’s edge every troop stands on. It’s one of the hidden risks of the uniform no one mentions when you sign your contract.