What precedent cases interpret illegal orders and obedience in U.S. military law?
Executive summary
U.S. military law draws a line between disciplined obedience and criminal responsibility: longstanding Anglo‑American precedent and modern Uniform Code of Military Justice (UCMJ) doctrine require servicemembers to refuse “manifestly” or “patently” illegal orders while still presuming orders lawful absent an obvious illegality [1] [2]. The controlling modern authorities—most notably the My Lai prosecutions (United States v. Calley) and the Court of Appeals for the Armed Forces decision in United States v. Smith—along with Article 90/92 doctrine and Manual for Courts‑Martial rules such as R.C.M. 916(d), together define when obedience becomes a crime [3] [4] [5].
1. Historical roots: old common‑law refusals to accept “just following orders”
Anglo‑American courts dating to the 18th and 19th centuries generally rejected blind obedience as an automatic defense, and early military instructions and treatises—cited in modern summaries—made clear that a soldier could be criminally liable if an order was illegal and apparent as such [1] [6]. These precedents inform the modern view that while orders carry an inference of lawfulness, that inference evaporates when an order is “so manifestly beyond authority” that its illegality is obvious to any ordinary person [1] [2].
2. My Lai and Calley: the paradigm of manifest illegality
The prosecution and conviction of Lieutenant William Calley for the My Lai massacre remain the paradigmatic U.S. example that executing orders to kill civilians can produce individual criminal responsibility; courts in that era emphasized that a patently illegal order is one “which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful” [2] [3]. Commentary and later practice treat Calley as demonstrating that obedience to manifestly unlawful orders offers no blanket immunity under U.S. or international law [7] [3].
3. United States v. Smith and the modern doctrinal framework
The Court of Appeals for the Armed Forces in United States v. Smith (68 M.J. 316) is described by practitioners as the most rigorous, contemporary articulation of the superior‑orders doctrine under the UCMJ: Smith refines how “manifest illegality” is defined, explains when obedience becomes criminal, and synthesizes Calley and later cases into a working test used in courts‑martial and appeals [4]. R.C.M. 916(d) in the Manual for Courts‑Martial places a key limit on superior‑orders defenses, reflecting both U.S. and post‑Nuremberg international law that a servicemember cannot rely on orders that are manifestly illegal [4].
4. Article 90/92 and case law: who decides lawfulness and how
Article 92 (failure to obey) and Article 90 (willful disobedience of a superior commissioned officer) apply only to lawful orders, and courts have held that the lawfulness of an order is a question for the military judge as a matter of law rather than a separate jury element in Article 92 prosecutions—illustrated in decisions like United States v. New and refined by doctrinal turns favoring contextual analysis in Womack [8]. Military courts therefore evaluate lawfulness in light of the order’s language, purpose, and the specific conduct charged, while recognizing the narrow carve‑out for manifestly illegal commands [8] [2].
5. Tension in practice and unresolved edges of the doctrine
Scholars and practitioners emphasize a practical tension: the need for near‑reflex obedience in danger‑filled operations versus the legal duty to refuse clear illegality; the law narrows required disobedience to “manifest” cases—intentional targeting of civilians, torture, or other plainly prohibited acts—because broader contests about policy or the legality of high‑level directives usually do not create a defense for frontline disobedience [9] [2]. Commentators also note gaps and risks in real‑time scenarios—seeking counsel may be impractical in combat and questions remain about gray‑area orders and presidential directives—areas the literature and courts continue to confront without definitive, universally applicable answers [2] [5].
6. Bottom line for precedent
The controlling line of precedent runs from old common‑law refusals to accept obedience as an absolute defense through My Lai/Calley, the UCMJ’s Articles 90 and 92, decisions like United States v. New and Womack on lawfulness as a legal question, and the modern synthesis in United States v. Smith together with R.C.M. 916(d) in the Manual for Courts‑Martial; cumulatively these authorities require refusal of manifestly illegal orders but preserve the presumption of lawfulness for orders that are not obviously unlawful [1] [3] [8] [4] [7].