What steps should a service member take if they believe an order is unlawful under the MCM?
Executive summary
When a service member suspects an order is unlawful, the Manual for Courts‑Martial (MCM) frames the legal test and procedures that govern response: an order is presumed lawful unless it conflicts with the Constitution, federal law, or exceeds the issuer’s authority, and "manifestly unlawful" orders impose a duty to refuse (MCM guidance) [1] [2]. Practical steps flow from that framework: attempt clarification, seek legal counsel, use commanded reporting channels, carefully document contemporaneous reasoning, and understand the disciplinary risks under the UCMJ if an order is disobeyed or followed without adequate basis [2] [3] [4].
1. Identify whether the order meets the MCM’s “manifestly unlawful” threshold
The starting point is legal, not emotional: the MCM and related commentary interpret unlawfulness as a clear conflict with constitutional or federal law or as exceeding lawful authority, and doctrine emphasizes that an order is presumed lawful absent such a conflict [1] [2]. Legal practice and scholarship stress a "manifestly unlawful" standard—one recognizable to “a person of ordinary sense and understanding” under the circumstances—meaning ambiguous or debatable orders rarely meet the refusal threshold [3] [5].
2. Seek immediate clarification and record the interaction
Before refusing, the MCM and practice materials advise asking the issuing officer to clarify or restate the order so the factual and legal bases are explicit; contemporaneous requests for clarification and written or witnessed notes create critical evidence of the servicemember’s state of mind and intent [1] [2]. The guidance across military legal sources underscores that articulating one’s legal and ethical basis at the time matters later in administrative or criminal proceedings, so documenting the exchange and the reasons for doubt is essential [3] [6].
3. If doubt remains, consult Judge Advocate (JAG) or other legal counsel promptly
The MCM and service legal infrastructure provide counsel and procedures for rapid legal advice; seeking JAG counsel protects both the individual and the unit by obtaining an authoritative legal view and creating a formal record of reliance on counsel [1] [7]. Independent legal support and resources, including off‑installation clearinghouses promoted by advocacy campaigns, may supplement but not replace official counsel—campaigns stress education rather than reflexive disobedience [8].
4. Refuse only when an order is manifestly unlawful and do so clearly and respectfully
If legal advice or the facts show the order is plainly illegal—e.g., a mandate to commit a criminal act that is clear under federal law—the MCM’s framework and historical precedent place a duty to refuse; case law such as My Lai reinforces that obedience to manifestly unlawful orders is not a defense [3] [2]. Refusal should be communicated unambiguously, recorded, and accompanied by the legal rationale relied upon at the time, because such contemporaneous articulation is material in later proceedings [3] [6].
5. Use formal reporting channels and protections but be mindful of command dynamics
The MCM and service regulations set out reporting mechanisms—through chain of command, inspector general, or legal offices—and require supervisors to report certain detention or misconduct matters in writing, creating institutional accountability [9] [6]. Advocacy groups and informational campaigns encourage using lawful reporting options and independent resources, but servicemembers should weigh potential command‑level repercussions and seek counsel before public or external disclosures [8].
6. Understand the disciplinary risk under the UCMJ and the evidentiary burden if prosecuted
Failure to obey a lawful order is punishable under Article 92 of the UCMJ, so service members who disobey face potential criminal and administrative consequences unless they can demonstrate the order was unlawful or they reasonably relied on legal advice or circumstances that justified refusal [3] [4]. Conversely, following a manifestly unlawful order offers no absolute shield from liability; the MCM and legal commentary make clear that manifest unlawfulness negates the superior‑orders defense [3] [2].
7. Practical takeaway and competing perspectives
The practical pathway mandated by the MCM is procedural: evaluate legality against federal/constitutional standards, seek clarification and JAG advice, document, and report through official channels—with refusal reserved for clear, manifest illegality; advocacy campaigns that promote awareness can inform personnel but may carry implicit agendas to broaden reporting options beyond command structures [8] [10]. The sources consulted establish what the law requires and what prudent practice looks like; gaps remain in public reporting about how commanders actually adjudicate ambiguous refusals, and that uncertainty counsel favors documented legal steps before disobedience [7] [10].