What legal tests do courts-martial use to determine if a military order was lawful?
Executive summary
Courts-martial test the lawfulness of a military order primarily as a question of law for the military judge, applying a presumption that orders are lawful unless they contradict the Constitution, federal law, lawful superior orders, or exceed the issuer’s authority, with a narrow exception for “patently illegal” or “manifestly unlawful” orders a reasonable person would recognize as illegal [1] [2] [3]. Case law and the Manual for Courts‑Martial (MCM) frame this as a legal determination distinct from the jury’s factfinding, while the accused’s reliance on superior orders remains a limited defense only when the accused did not know and a person of ordinary understanding would not have known the order was unlawful [4] [5].
1. The statutory baseline: Article 92 and the presumption that orders are lawful
Article 92 of the UCMJ criminalizes willful disobedience of a lawful order, and the statute’s plain text and implementing materials treat “lawful” as the crucial qualifier—orders are presumed lawful and service members have a duty to obey unless legal criteria show otherwise [1] [6]. The Rules for Courts‑Martial and the MCM adopt that presumption and instruct that an order 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,” placing the initial legal weight on obedience [2] [7].
2. Who decides lawfulness: the military judge, not the panel
Military precedent holds that the lawfulness of an order is a question of law to be decided by the military judge, not the court‑martial panel, meaning judges rule on whether an order is legally valid before the panel weighs intent or other factual elements [4]. Decisions such as United States v. New and related authority make clear that the Constitution does not require a jury to determine the legal validity of the order underlying an Article 92 charge [4].
3. The “patently illegal” and “manifestly unlawful” carve-outs
The MCM, international commentary, and military jurisprudence recognize two narrow exceptions to the presumption: orders that are patently illegal (for example, directing the commission of an obvious crime) and orders manifestly unlawful under the circumstances—those a person of ordinary sense and understanding would recognize as illegal—where obedience cannot excuse criminal responsibility [2] [3] [5]. The My Lai/Calley litigation remains the canonical example in U.S. law, where the court rejected reliance on orders to “waste” civilians because the illegality was or should have been obvious [3].
4. The subordinate’s mental state and the “following orders” defense
Acting “pursuant to orders” can be a defense, but only if the accused neither knew the orders were unlawful nor was the unlawfulness so obvious that a reasonable person would have recognized it; this dual subjective/objective formulation shapes both prosecutorial strategy and defense planning [5] [2]. Military practice therefore analyzes whether the accused had knowledge or whether the unlawfulness should have been apparent, rather than mechanically accepting any superior’s instruction as lawful [3].
5. Relation to military duty and limits of the legal framework
The MCM and precedent also emphasize that an order is presumed lawful especially when it relates to military duties, but that presumption does not extend to acts clearly outside the authority of the issuing official or beyond service‑connected functions; complex questions—such as the lawfulness of deployment orders absent a declaration of war—are matters for judicial determination at trial [4] [2]. Sources underscore that although the system provides rules for refusing illegal orders, those determinations typically occur only after a refusal or in a court‑martial context, which can leave service members in a fraught position in real time [2].
6. Advocacy, messaging, and practical friction
Outside actors and advocacy campaigns have sought to shape how troops interpret these legal tests—billboards and hotlines urging servicemembers to “Obey Only Lawful Orders” are framed as reminders of existing law and as practical guidance to seek counsel, but they also reveal an agenda to mobilize legal resources and public opinion around high‑profile political controversies [6]. The reporting shows a tension between clear doctrinal rules in the MCM and the messy realities faced by service members interpreting orders amid operational pressure and political debate [6] [5].
Limitations: the provided sources do not specify precise burdens of proof or step‑by‑step judge instructions in every context, nor do they include recent appellate decisions post‑2025 refining nuances of “manifestly unlawful,” so some procedural specifics cannot be asserted from these materials [7] [4].