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What are historical examples where servicemembers were prosecuted or acquitted for following orders later found unlawful?
Executive summary
Historical precedent shows that U.S. service members have both been prosecuted and, in other cases, acquitted or excused when they followed superior orders later judged unlawful; the key legal touchstones include the “manifestly unlawful” test from US v. Calley and Nuremberg-era doctrine that superior orders are not an absolute defense [1] [2]. Courts and military rules treat orders as presumptively lawful but allow a narrow defense if an order is patently illegal — yet that determination is usually made after the fact at court-martial or in appeals [3] [4].
1. The long arc: from Nuremberg to Calley — why “just following orders” isn’t a get‑out‑of‑jail card
After World War II, Nuremberg rejected superior‑orders as an absolute defense, creating the modern baseline that individuals remain responsible for manifestly criminal acts even when ordered by superiors — a principle military law in the U.S. inherits and applies; military scholars point to Nuremberg as the moment the “just following orders” defense lost its automatic power [2] [4]. The Calley court‑martial in the Vietnam era is the leading U.S. case applying that approach: the Court of Military Review explained subordinates aren’t excused unless the order was one a “man of ordinary sense and understanding” would know to be unlawful [1].
2. Prominent prosecutions tied to following orders: My Lai and William Calley
The My Lai prosecutions, especially United States v. Calley, illustrate prosecution for carrying out atrocious orders: Calley was convicted for killing civilians despite his claim he was obeying orders, and subsequent appeals framed the test for when obedience might excuse criminal liability — essentially limiting acquittal to truly obvious illegality [1] [4]. That case became the exemplar the U.S. military and commentators use when explaining why following manifestly illegal orders can lead to prosecution [1].
3. Acquittals, partial acquittals, and the limits of liability — where leaders sometimes escaped conviction
Not all alleged issuers of illegal orders were convicted. A number of trials and appeals through U.S. military history produced acquittals or mixed results for commanders accused of ordering criminal acts; for example, some officers tried in the wake of Vietnam faced acquittals or narrow findings even as subordinates were punished, demonstrating courts’ fact‑intensive inquiry into what was ordered and what the accused actually knew [5] [2]. Military reporting and legal commentary stress that determining an order’s lawfulness is complex and often depends on whether the order was “patently” illegal, visible to a reasonable person [3] [4].
4. The rule on paper: presumption of lawfulness, but a post‑hoc judge decides
Under the UCMJ and the Manual for Courts‑Martial, orders are presumed lawful; the “inference of lawfulness” is rebuttable but whether an order was unlawful is a question of law for the military judge — which means service members face risk both if they obey and if they refuse, because lawfulness often is only settled later in court [3] [6]. Legal guides and military FAQs emphasize that a patently illegal command (e.g., an order to commit murder) is distinct from orders whose illegality is debatable — only the former reliably protects a follower from prosecution [3] [7].
5. Practical consequences: uncertainty for troops and uneven historical outcomes
Commentators and military law experts repeatedly note the operational reality: troops are trained to obey, legal standards are technical, and many historic cases show uneven outcomes — subordinates punished while some superiors are acquitted — because context, knowledge, and clarity of the order matter profoundly [7] [4]. Reporting since 2025 highlights renewed debate about unlawful‑order guidance for service members and how hard it is in practice to recognize “manifestly unlawful” commands in fast‑moving situations [8] [9].
6. Contemporary flashpoint: public talk about “refuse illegal orders” and institutional reactions
Recent episodes — a 2025 video by several lawmakers telling troops they can refuse illegal orders and the Pentagon’s investigation of a retired officer who appeared in it — underscore how political and legal questions about unlawful orders remain contested; coverage shows officials warn that orders are presumed lawful while legal voices say the law itself forbids following illegal orders, reflecting competing emphases [10] [11]. Analysts caution that urging blanket disobedience risks blurring who should decide lawfulness (individual troops vs. military judges) and may have political motives as well as legal ones [8] [12].
7. Bottom line for historical examples and lessons
Historical examples — especially My Lai/Calley and the Nuremberg legacy — show that following orders later deemed unlawful has led to convictions and to limited defenses; courts focus on whether orders were manifestly illegal and what the accused knew or should have known [1] [2]. Available sources do not attempt a comprehensive catalogue of every prosecution or acquittal but consistently underline the narrowness of the “obedience” defense, the presumption of lawfulness in ordinary orders, and the fact that many determinations are made only after prosecution or appellate review [3] [4].