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How have appellate courts ruled on refusal to follow unlawful orders in recent courts-martial (last 10 years)?
Executive summary
Appellate courts in the military and civilian systems over the last decade have treated refusal to follow orders as fact-specific: courts repeatedly emphasize that orders are presumed lawful but that manifestly unlawful orders (those a person of ordinary sense would know illegal) are not obligating — a principle found in multiple summaries and expert accounts [1] [2] [3]. Recent reporting shows debate, high-profile political friction, and some appellate precedent affirming jurisdiction over retirees and confirming that following or refusing orders can each produce liability depending on the circumstances [4] [5] [6].
1. Appellate law’s baseline: orders presumed lawful but manifest illegality defeats the presumption
Military appellate and doctrinal sources make a clear, repeated point: an order is presumed lawful, and that presumption can be rebutted if the order is “patently” or “manifestly” illegal — i.e., of such a nature that “a man of ordinary sense and understanding would know it to be illegal” [1] [2] [6]. Reporting and legal guides cite the Manual for Courts‑Martial and long‑standing case law to explain that this is the touchstone appellate courts use when reviewing prosecutions for obeying or disobeying orders [1] [6].
2. Appellate outcomes are fact‑driven — no bright‑line rule
Across courts-martial and appellate decisions, the decisive factor is what the accused knew or should have known about the order’s illegality. That makes appellate outcomes highly fact‑specific: if an order clearly commands criminal conduct, appellate courts have said following it provides no defense; if the illegality is ambiguous, refusing may be unlawful and punishable [1] [3]. Commentators and legal analyses emphasize that appellate review typically asks whether the evidence supports a finding that the order was manifestly illegal or that the accused knew it was unlawful [6] [3].
3. Recent appellate signals on retirees and jurisdictional issues
Military appellate decisions in recent years have affirmed that certain retired personnel remain subject to the UCMJ and can be subject to court‑martial review — a jurisdictional point that can matter in high‑profile cases where retirees (or former officers) advise troops to disobey orders [4]. Legal reporting cites cases such as Dinger [7] and Larrabee [8] as precedent military appellate courts used to confirm jurisdiction over some retirees, which appellate practitioners continue to rely on [4].
4. Practical appellate hurdles: judge decides legality after the fact
The Manual for Courts‑Martial and appellate practice place the ultimate legal determination of an order’s lawfulness in the hands of military judges and appellate tribunals — not the subordinate at the scene. That creates a practical problem highlighted in reporting: refusing a command and hoping an appellate court later vindicates you risks conviction if the court finds the order was not manifestly illegal [1] [6] [3]. Analysts warn appellate reversal is possible, but depends on whether the trial record supports a finding that the order’s illegality was obvious [6] [3].
5. Public cases and political pressure shape appellate attention but do not change legal standards
Recent media coverage of lawmakers urging troops to refuse “illegal orders” has provoked Pentagon probes and public threats of recall and court‑martial, but reporting shows those developments do not alter the appellate legal standard: courts still analyze manifest illegality and jurisdictional predicates, even amid political controversy [9] [4] [3]. News outlets stress that while the admonition to disobey illegal orders restates a valid legal duty, it can create confusion because appellate courts will still apply the usual presumption‑of‑lawfulness test [10] [3].
6. Competing perspectives in reporting — caution vs. constitutional duty
Legal advocacy groups and defense‑oriented commentators emphasize a constitutional duty to refuse unlawful orders and note that appellate precedent supports refusing manifestly illegal commands [11] [12]. Conversely, conservative and military‑establishment voices warn that advising preemptive refusal risks disorder — they stress appellate courts typically will not excuse disobedience unless illegality is obvious, and that refusing lawful orders can bring harsh punishment [13] [10]. Both perspectives cite the same underlying appellate framework but differ on how often courts will find an order truly “manifestly” illegal [11] [13] [3].
7. What the sources do not show — no sweeping recent appellate trend overturning the test
Available sources do not mention any recent appellate decision in the last ten years that abandons the presumption‑of‑lawfulness or replaces the “person of ordinary sense” test with a different standard; instead, reporting and legal guides show continuity in appellate doctrine even as high‑profile facts produce heated litigation [1] [6] [5]. If you need specific case law applying the manifest‑illegality test to particular 2015–2025 facts, available sources do not list a comprehensive set of such opinions — you would need to consult the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces databases directly [14] [15].
If you want, I can pull and summarize specific appellate opinions (C.A.A.F. or service Courts of Criminal Appeals) from the Justia and official court opinion sites cited in reporting to illustrate how courts applied these principles in named cases [14] [15].