How do the defenses of superior orders and duress apply under the UCMJ and pertinent case precedents?
Executive summary
The UCMJ presumes orders are lawful, but service members have a duty to disobey “patently illegal” commands that direct crimes; the Manual for Courts‑Martial places the question of lawfulness with the military judge [1]. Courts and commentary emphasize that following an unlawful order is not an automatic defense — historic prosecutions (e.g., Lt. Calley) and modern guidance make clear that obeying criminal orders can result in liability [1] [2] [3].
1. The legal baseline: presumption of lawfulness and who decides
Military rules treat orders as lawful by default; the Rules for Courts‑Martial say an order is lawful “unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders” and that the inference does not apply to a patently illegal order — but crucially the military judge determines lawfulness as a question of law [1]. That presumption frames almost every refusal-or-obedience dilemma because service members face consequences whether they obey or disobey [1].
2. Superior‑orders defense: limited and often rejected in practice
The historic lesson is stark: “I was only following orders” is a weak defense for criminal acts. The Manual’s framework and case history (notably Lieutenant Calley’s Vietnam conviction) demonstrate that following an order to commit murder does not automatically excuse criminal liability; tribunals have rejected superior‑orders defenses for clear crimes [1] [2]. Contemporary reporting reiterates that federal law does not permit breaking criminal law even when ordered by a superior [3].
3. Duress and coercion: not a free pass, factual and legal hurdles
Available sources do not give a step‑by‑step statutory checklist for duress under the UCMJ, but they indicate that defenses based on coercion face high bar: the order must be patently illegal and the servicemember’s circumstances are weighed in a court‑martial by judges or triers of fact [1]. The Manual and commentary treat duress as context to be assessed after the fact; the Rules make clear that lawfulness is decided in court, which means duress will be scrutinized in relation to whether the commanded act was a crime [1].
4. Article 90 vs. Article 92: different charges, different contours
Disobedience can trigger Article 90 (willfully striking or offering violence against a superior commissioned officer) or Article 92 (failure to obey a lawful order) depending on form and delivery of the command; Lawfare explains that the way an order is delivered matters and that different UCMJ articles apply in different factual scenarios [4]. Article 92’s reach is broad, covering general orders and regulations; penalties range from non‑judicial punishment up to court‑martial [5] [4].
5. Practical guidance for service members: obey, refuse, but know the risks
Multiple sources stress the harsh reality: the only way to get a definitive ruling on an order’s lawfulness is through later adjudication — obeying may lead to war‑crimes or criminal charges, disobeying may trigger UCMJ offenses or disciplinary action [1] [3]. Military commentary and legal guides therefore urge careful assessment: an order that clearly directs murder, rape, or other statutory crimes is patently illegal and must be disobeyed; ambiguous or politically fraught orders that are merely controversial will generally be treated as lawful [1] [6].
6. Political and institutional pressures: competing narratives shape advice
Public statements and advocacy vary: some lawmakers and advocates emphasize the legal duty to refuse unlawful orders, while official statements often remind troops of the presumption of lawfulness and the obligation to obey [2] [4]. Journalistic and military outlets underscore competing agendas — leaders stressing discipline and lawmakers emphasizing limits on political misuse of military authority — which complicates frontline decision‑making [2] [6].
7. What reporting does not settle — and what to watch in court
Available sources do not provide a single, codified definition of “patently illegal” or a comprehensive catalogue of successful duress defenses under the UCMJ; instead, case law and courts decide on facts in individual prosecutions [1]. Practitioners and scholars advise watching military judicial rulings where judges apply the Manual for Courts‑Martial language to specific conduct; those opinions will continue to define the boundary between lawful obedience and criminal compliance [1] [4].
Limitations: This analysis relies on recent doctrinal explanations, legal commentary and news reporting in the provided sources; it does not cite primary statutes or specific recent court‑martial opinions beyond the historical examples and summaries in those sources [1] [3] [4].