What legal defenses are available to U.S. service members who claim they were following unlawful orders?
Executive summary
U.S. service members are legally required to obey lawful orders and to refuse unlawful ones; following a manifestly unlawful order is not an automatic defense under the Uniform Code of Military Justice (UCMJ) and can lead to prosecution, including for war crimes, as codified in U.S. practice and explained by multiple outlets [1] [2] [3]. Military leaders and commentators emphasize a strong presumption that orders are lawful, while legal doctrine and precedent (and international law inherited from Nuremberg) impose duty to disobey manifestly illegal commands [4] [3].
1. What the law says: obedience, presumption of lawfulness, and the manifestly unlawful standard
The UCMJ establishes a default duty of obedience to “any lawful general order or regulation,” creating a legal presumption that orders are lawful; but longstanding U.S. and international legal doctrine rejects the “just following orders” defense and requires service members to disobey orders that are manifestly unlawful — a threshold that is legally fraught and narrowly construed [4] [5] [1].
2. Key defenses a service member might raise in court-martial or prosecution
Available reporting identifies three defensive paths commonly discussed: (a) the order was not unlawful (challenge the characterization); (b) lack of mens rea or knowledge — the service member did not and could not reasonably have known the order was unlawful; and (c) duress or coercion in narrow circumstances — though these are fact-intensive and limited under military law. Reporters stress that claiming “I was just following orders” is not a blanket shield; courts and tribunals have rejected it when the illegality was manifest [1] [3] [5].
3. How “manifestly unlawful” is applied — judges, commanders, and reality on the ground
Sources show courts and military manuals require that an order be “manifestly” unlawful — meaning a person of ordinary sense and understanding would recognize it as illegal — before refusal is mandated and liability attaches for compliance. That high bar makes situations where refusal is clearly required relatively rare and legally hazardous to litigate after the fact [5] [1].
4. International law and Nuremberg’s continuing role
Reporting recalls Nuremberg’s rejection of superior‑orders as an automatic exculpation: international tribunals and legal commentators have treated obedience to manifestly illegal orders as no defense to atrocity, a principle the U.S. military and commentators reiterate in the modern context [3] [2].
5. Institutional pathways and non‑criminal remedies
The Pentagon and military institutions emphasize procedures and chains of command aimed at preventing unlawful orders reaching lower ranks; some sources argue officers are expected to screen and block illegal commands so enlisted personnel are protected, and guidance (e.g., DoD instructions and FAQs from defense-law groups) exists for service members considering refusal — though the FAQ materials come from advocacy/legal groups and reflect one viewpoint [6] [7] [8].
6. Political context and the risk of mixed messaging
Recent political events — a video by six Democratic lawmakers telling troops they can refuse unlawful orders, and strong denunciations from administration figures — illustrate how legal advice can be weaponized politically. The Pentagon opened reviews and the FBI sought interviews, showing how advice that is legally accurate can still generate administrative or criminal scrutiny when mixed into partisan confrontation [9] [10] [11].
7. Practical advice distilled from reporting: what service members face
Reporting consistently signals that a service member who believes an order is unlawful faces a high-risk decision: refusing a non‑obviously unlawful order can trigger disciplinary action for disobedience; complying with a manifestly unlawful order risks criminal liability later. The operative considerations are whether the illegality is clear to a reasonable person, whether lawful channels or clarifying guidance are available, and whether senior officers have an obligation to prevent unlawful commands from reaching subordinates [5] [1] [6].
8. Competing perspectives and limitations in the coverage
News outlets and legal analysts agree on core principles (duty to disobey manifestly unlawful orders; no blanket “just following orders” defense), but they differ on emphasis: some stress the practical harms of ambiguous advice to troops and the presumption of lawfulness [4] [11], while others and advocacy materials foreground soldiers’ rights and procedural guidance for refusal [7] [6]. Available sources do not mention detailed statutory text citations or specific court-martial outcomes post‑2025 that would further illustrate how courts applied defenses in recent cases; such specifics are not found in current reporting.
Closing note: The legal rule is clear in principle but risky in practice — obedience is presumed lawful, illegality must generally be manifest to justify refusal, and asserting you “were following orders” will not shield a service member from prosecution if a court finds the order was clearly unlawful [1] [2] [3].