Are members of the military required to obey illegal orders? This question has made the headlines after Senator Mark Kelly and five other lawmakers released a video saying that members of the military “must refuse to obey illegal orders.” Less than seven percent of Americans have served in the military, so many do not understand the importance of what the lawmakers were saying or whether it was even true. What is an illegal order? Should it be disobeyed? What are the consequences for a soldier who does so?

Absolute obedience to orders is central to military discipline. Soldiers, sailors, airmen and Marines are taught to obey the orders of their superiors from their very first day in basic training. Obedience to orders becomes instinctive, which is often referred to as muscle memory. Commanders cannot allow those under their command to second guess every order. In order to defeat the enemy, it is essential that orders be obeyed quickly and without question. Nevertheless, illegal orders must be disobeyed. Not to do so will logically lead to war crimes.

The saying, “all’s fair in love and war” is not true. Certain activities are not acceptable on the battlefield. Most Christians accept St. Augustine’s Just War Theory. This theory is divided into two parts: jus ad bellum (justice in going to war) which lay out conditions that must be met before a nation can justly engage in war, and jus in bello (justice in conducting war) which include limits on what is acceptable in war. Jus in bello includes two principles: proportionality and discrimination. Nations engaging in war must use only the force necessary to accomplish the military objectives and must discriminate between warrior and civilians. Dropping an atomic bomb on Baghdad in order to kill Saddam Hussein would be a violation of the principle of proportionality; bombing a hospital would violate the principle of discrimination. Of course, in war things are not that simple, especially when fighting terrorists. When Hamas located their command headquarters underneath a hospital they put Israel in a very difficult position. While Just War Theory has no legal standing in the United States, it is the foundation of internal law, including the treaties signed at the various Geneva Conventions.

Both U.S. and international law require combatants to disobey illegal orders. The United States Code, Title X, §.890, art. 90 reads: “If a superior insists that his illegal order be obeyed, however, the soldier has an affirmative legal obligation to disobey the order and report the incident to the next superior commander, military police, CID, nearest judge advocate, or local inspector general.” According to U.S. law, members of the military are obligated to disobey an illegal order. International law also demands soldiers disobey illegal orders. In the Nuremburg trial of The United States of America vs. Otto Ohlendorf, et al., the court ruled that “the subordinate is bound only to obey the lawful orders of his superior and if he accepts a criminal order and executes it with a malice of his own, he may not plead superior orders in mitigation of his offense” (italics added). Military members have taken an oath to defend the Constitution. Their oath and their responsibility to the rule of law transcends their duty to obey the orders of their superiors.

Disobeying an illegal order is a serious matter. According to the Manual for Courts-Martial, a military order “may be inferred to be lawful, and it is disobeyed at the subordinate’s peril.” However, “this inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” The definition of a “patently illegal order” is not defined. The Manuel continues: “the lawfulness of an order is a question of law to be determined by the military judge.” In other words, the soldier who disobeys an illegal order takes a huge risk. The validity of their judgment is likely to be questioned by a military judge after the fact, and they could end up in a military prison. In the heat of battle decisions must be made quickly. The average combat soldier in the Vietnam War was 19½. Few adolescents are equipped to make such moral judgments.

But the laws against obedience to illegal orders are necessary. They help keep our servicemembers from committing war crimes. The My Lai massacre is an illustration of the kind of atrocity that can result from obedience to illegal orders. Only seven of the roughly 100 soldiers ordered by LT William Calley to shoot old men, women, and children who were crouched in a ditch disobeyed. The obedience of the others to the Lieutenant’s illegal order resulted in the most notorious atrocity of the entire war.

While obedience to unlawful orders can lead to atrocities, it can also harm the warrior. Members of the armed forces are one of the few populations allowed to violate the taboo against the taking of human life. Warfighters must know that when they take a human life it is the right thing to do. There is a difference between the nineteen-year-old who took a life in Vietnam and his high school classmate who killed a civilian on the streets of Detroit. Killing in Vietnam was done so under the rule of law; the murder in Detroit was a crime. Obedience to an illegal order turns the soldier into a criminal. Such activities lead to extreme PTSD and what has been called Moral Injury, a spiritual injury to their conscience. They have behaved dishonorably. Honor, not obedience, is the cardinal virtue of the soldier.

Targeting a civilian fishing boat, whether or not there are drugs aboard, is a violation of the Just War principle of discrimination (and probably proportionality). The United States has other options to stop the flow of drugs into our nation, including the Coast Guard. The Coast Guard was originally established in 1790 as the Revenue Cutter Service to capture smugglers seeking to avoid taxes. Thwarting smugglers remains a core mission of the U.S. Coast Guard. They regularly board and search vessels suspected of carrying drugs. I recall being aboard a Coast Guard vessel off the shores of Venezuela for this very purpose. This is law enforcement work. If the Coast Guard needs assistance in this work, U.S. Navy ships can be deployed to the area. Once they hoist the Coast Guard flag they fall under their sister service’s command. I often rode Navy frigates along the Pacific coast of Central America that fell under Coast Guard authority for counter-drug operations.

The rule of law is a central feature of democracy. In recent years there has been an eroding of this core element that governs our life together. Both national and international law must be obeyed. Members of the armed forces must retain the right to obey the law when given an illegal order, for their own protection and to prevent atrocities.