Which U.S. cases established the duty to refuse manifestly unlawful orders?
Executive summary
U.S. military law recognizes a duty to refuse "manifestly unlawful" orders in narrow circumstances; courts and commentators tie that duty to historic precedents like Nuremberg and to Article 92 of the UCMJ, but there is no single Supreme Court case in the provided reporting that definitively established a clean, modern test (sources discuss principle, cases and commentary) [1] [2] [3].
1. The legal proposition: duty to refuse exists—but it’s narrow
Every mainstream report here describes a core principle: service members are expected to obey lawful orders but must refuse orders that are clearly criminal or “manifestly unlawful,” drawing on international law and the Uniform Code of Military Justice; following an unlawful order can produce criminal liability [1] [2] [4].
2. Where reporters and lawyers point for precedent: Nuremberg and My Lai
Contemporary commentators anchor the doctrine in older, high‑visibility precedents. Coverage cites the Nuremberg legacy as the foundation for refusing criminal orders and references the My Lai prosecutions — notably Lt. William Calley’s conviction — as an American example that obedience is not an absolute defense [1] [5].
3. Court and scholarly practice: courts set a high bar for “manifestly” unlawful
Legal practitioners and federal courts have repeatedly said the threshold is high: an order must be obviously criminal or in clear violation of law such that a “person of ordinary sense and understanding” would see its illegality. Recent federal decisions and legal analyses emphasize that not every questionable order qualifies; the unlawfulness must be plain [6] [2] [3].
4. Recent litigation and rulings that shaped the debate (reporting, not exhaustive case law)
Recent federal litigation about domestic deployments — including a cited Posse Comitatus ruling involving National Guard deployments to Los Angeles — has revived attention to when orders exceed legal bounds and when service members may refuse them, but reporters treat these as fact‑specific rulings rather than a single canonical test that supplants prior doctrine [6].
5. Practical guidance from military law experts and JAG commentary
Military-law commentators and former JAG officers stress caution: troops are presumed to accept orders as lawful unless the illegality is obvious; advisers note that servicemembers often rely on legal counsel or command legal opinions when uncertain, and that refusing a non‑manifestly illegal order risks Article 92 or related charges [4] [2] [3].
6. Political flashpoint: lawmakers’ video and federal inquiries put doctrine in public view
The November 2025 episode where six Democratic lawmakers urged troops to “refuse illegal orders” brought the issue into politics; media coverage shows both legal experts who backed the basic legal claim and government officials who threatened disciplinary review, illustrating how legal doctrine can become contested public theater [7] [5] [8].
7. Limits of available reporting: no single U.S. Supreme Court “bright‑line” case in these sources
Across the provided material, reporters and scholars repeatedly cite precedent and historical prosecutions, but available sources do not identify a single definitive Supreme Court case that alone “established” the modern duty to refuse manifestly unlawful orders; instead the rule is presented as the product of international law, the UCMJ, federal decisions and military practice [1] [2] [3].
8. Competing perspectives and institutional incentives
Sources show a split between those emphasizing constitutional and international obligations that require refusal of clearly illegal commands, and institutional voices (Pentagon officials, some commentators) warning that broad public admonitions can undermine discipline or be politically motivated; the disagreement is as much about boundaries and context as about the abstract rule [9] [10] [8].
9. What this means for servicemembers and policymakers
Practically, the safest act for troops is to seek legal counsel when in doubt and to presume orders lawful until illegality is plain; for policymakers and public figures, commentators warn against vague public exhortations that could confuse troops about what counts as manifest illegality and invite administrative or criminal reviews [4] [3] [9].
Limitations: this analysis uses only the supplied reporting and legal commentary. It identifies themes, cited cases and incidents referenced in those sources but does not purport to be a comprehensive survey of every judicial decision on superior‑orders doctrine; available sources do not list a single Supreme Court decision that conclusively established the modern duty in the U.S. system [1] [2].