What steps must a service member take to challenge or refuse an order deemed unlawful?
Executive summary
Service members are legally required to obey lawful orders and to refuse patently unlawful ones; Article 92 of the Uniform Code of Military Justice (UCMJ) and the Manual for Courts‑Martial frame that tension and make lawfulness a legal question often decided after the fact [1] [2]. Recent public debate—sparked by a Nov. 18, 2025 video by six Democratic lawmakers urging troops to “refuse illegal orders”—has highlighted confusion about what practical steps an individual service member can take when they believe an order is unlawful [3] [4].
1. What the written rules say: obedience, illegality and who decides
The UCMJ and military rules presume orders are lawful but carve out an obligation to disobey “patently illegal” commands, such as orders to commit crimes; whether an order is lawful is officially a question of law typically determined by a military judge, often only after a member has refused or followed the order and the matter reaches courts‑martial or tribunal review [1] [2].
2. The operational reality: presumption of lawfulness and risk
In practice, orders are presumed lawful and refusing an order that a commander reasonably saw as lawful can itself be a punishable offense under Article 92; that means service members face real disciplinary and criminal risks when they decide not to obey while the legal status of the order remains unresolved [3] [1] [2].
3. Immediate, practical steps service members can take when in doubt
Available reporting and legal FAQs advise seeking clarification through the chain of command, asking for the order in writing when possible, and consulting available legal counsel (Judge Advocate General (JAG) officers) before refusing—though specific step‑by‑step checklists vary and scenarios can be time‑sensitive or dangerous, limiting options in real time [5] [1]. The MLTF FAQ explains that lawfulness determinations are legal questions and emphasizes contacting counsel and documenting circumstances [1].
4. What “patently illegal” means — examples and limits
Military guidance and analysts say the clearest illegal orders are those that direct commission of crimes or violate the Constitution, the law of war, or settled international law; historic examples like My Lai are cited as the kind of unmistakably unlawful orders that should have been refused [1] [6]. But the line is often murky in modern operational contexts, so many orders fall into a gray area where legal review after the fact determines culpability [1] [5].
5. Legal and career consequences of refusing or following
Following a lawful order is required; following an unlawful order can expose a service member to prosecution in U.S. courts‑martial or international tribunals, while refusing a lawful one can result in court‑martial under Article 92. Because determinations are frequently made after conduct occurs, members weigh potential criminal liability against career and immediate safety risks [1] [2].
6. The political controversy and its effect on guidance
The lawmakers’ video urging refusal of illegal orders prompted intense political pushback, Pentagon statements about discipline, and media coverage discussing whether the message was legally correct but poorly framed; critics said the video lacked concrete legal context, potentially sowing confusion in a system that relies on clarity and order [3] [7] [8]. The Pentagon has warned that public exhortations can be construed as undermining good order and discipline and has opened inquiries into at least one participant [8] [9].
7. Where service members and commanders disagree: who to trust?
Commanders, JAGs, and service‑member conscience may diverge. Military leaders emphasize obedience unless an order is obviously unlawful; legal experts and some veteran lawmakers stress the duty to refuse illegal orders and to consult legal counsel when possible. Reporting shows some senior military lawyers privately questioned the lawfulness of certain recent strikes, illustrating how professional legal opinion inside the chain can differ from operational commands [4] [5].
8. Limits of current reporting and what’s not answered
Available sources outline the legal framework, recent political debate, and general procedural advice, but they do not give a universally applicable, moment‑by‑moment playbook for every circumstance; they also do not resolve specific contested cases (e.g., the legality of particular strikes) outside of formal legal proceedings [1] [3] [4]. For specific, case‑by‑case guidance, the reporting points to contacting JAG counsel and following internal regulations rather than public pronouncements [1] [5].
Bottom line: law and precedent impose a dual duty—obey lawful orders and refuse clearly illegal ones—but the determination is often legal and retrospective, so service members seeking to challenge an order should document, seek clarification, consult JAG counsel when possible, and understand they may face grave personal and professional risks either way [1] [2] [5].