What precedent-setting cases address following unlawful orders in U.S. military law?
Executive summary
The core U.S. military rule is that service members must obey lawful orders but must refuse clearly unlawful, criminal orders—especially those ordering atrocities—an idea reflected in precedents like the My Lai prosecutions (Lieutenant Calley) and long-standing UCMJ practice [1] [2]. Public debate exploded after six Democratic lawmakers urged troops to refuse unlawful orders; experts and outlets note the strong presumption orders are lawful, the difficulty of instant legal judgment in the field, and the risk of punishment for refusing orders that are in fact lawful [3] [4] [1].
1. Historic precedents: My Lai and the “patently illegal” standard
The most often-cited precedent for refusing orders comes from Vietnam-era prosecutions, notably Lieutenant William Calley’s court-martial for participating in the My Lai massacre; commentators say that prior cases suggest an order becomes “patently illegal” when it commands atrocities like killing unarmed women and children [1]. Legal commentary and military FAQs use My Lai as the touchstone showing that following an order is no defense when the order is a clear criminal command [1].
2. The Uniform Code of Military Justice: obligation to obey lawful orders, exception for unlawful ones
UCMJ Article 92 requires obedience to lawful orders while allowing refusal of unlawful orders; military and legal commentators stress that the UCMJ presumes orders are lawful but recognizes that an order violating the Constitution, statute, or regulations and directing a crime must be refused [5] [4]. Analysts emphasize the presumption of legality creates heavy practical consequences: refusing a lawful order can itself be a punishable offense [3] [4].
3. Who decides lawfulness in the heat of action? The practical problem
Multiple sources warn that whether an order is unlawful is often not “immediately obvious” in operational settings; servicemembers face split-second judgments and risk prosecution either way—if they follow a criminal command or if they disobey what is later judged lawful [3] [6]. Military commentators and veterans’ voices underline that identifying “patently illegal” versus merely questionable orders is central to any defense or duty to refuse [1] [7].
4. Recent political flashpoint: lawmakers’ video and the Kelly review
In November 2025 six Democratic lawmakers – many with service backgrounds – released a video urging troops to refuse unlawful orders, prompting public controversy and a Pentagon review into retired Navy Captain Sen. Mark Kelly’s participation; the DoD review illustrates how these incidents can create new test cases about retired officers’ speech and the reach of UCMJ discipline [3] [8]. Coverage shows both criticism that the lawmakers should cite specific unlawful orders and defense that reminding troops of their constitutional oath is lawful civic speech [4] [9].
5. Competing legal views and institutional incentives
Legal experts quoted across outlets present competing emphases: some stress the constitutional and international-law duty to refuse orders that mandate crimes [2] [1]; others stress institutional stability and the presumption of legality that guards command authority and discipline [3] [4]. Media outlets differ in framing—some depict the video as necessary citizen oversight (theconversation, bulwark summaries) while others treat it as politically dangerous or confusing for troops (Fox, CNN coverage highlighting partisan fallout) [6] [10] [9].
6. What counts as “precedent‑setting” in this area — and what reporting does not say
Available reporting identifies My Lai/Calley as the clearest precedent for criminal liability when following unlawful orders and points to UCMJ doctrine as the governing law [1] [5]. But available sources do not catalogue a single modern Supreme Court decision creating a bright-line rule on refusing orders in non‑wartime domestic settings; current debates revolve around administrative reviews (e.g., Pentagon’s review of Kelly) and long-standing military case law rather than a new landmark judicial ruling (not found in current reporting).
7. Practical takeaways for servicemembers and policymakers
Experts advise that when in doubt servicemembers should seek legal advice up the chain, because the system expects officers to exercise independent judgment and treat unlawful orders—those plainly violating the Constitution, U.S. law, or the Geneva Conventions—as non‑binding [2] [11]. At the same time the institutional reality is risky: obeying a patently illegal order exposes one to prosecution; refusing a lawful order can also bring punishment. That tension underpins why commentators urge clarity from civilian leaders when they publicly discuss disobeying orders [3] [4].
Limitations: this analysis relies solely on the supplied reporting, which emphasizes My Lai-era criminal prosecutions, the UCMJ, and recent political controversies; it does not cite a single new Supreme Court precedent because those are not present in the provided sources (not found in current reporting).