Under the UCMJ, when is following an unlawful order a valid defense versus criminal liability?
Executive summary
Under the UCMJ, service members are criminally required to obey lawful orders and may be punished for failing to do so, but they also have a duty to refuse orders that are unlawful — especially those that are “manifestly unlawful,” such as orders to intentionally target civilians or commit statutory crimes [1] [2]. Military law and commentators emphasize a strong presumption that orders are lawful, making refusal legally risky unless the unlawfulness is clear [3] [4].
1. The baseline rule: obey lawful orders — criminal liability for disobedience
The Uniform Code of Military Justice contains Article 92 and related provisions that make failure to obey lawful orders a punishable offense; service members “must ‘obey any lawful general order or regulation,’” and punishments can be severe [3] [2]. Practitioners and guides repeatedly note that a conviction for disobeying an order under the UCMJ requires that the order be lawful in the first place, which places the burden of that legal characterization at issue in many prosecutions [5] [2].
2. The exception: unlawful orders — when refusal can be a defense
Military commentators and legal experts say orders that are clearly illegal — for example, explicit violations of U.S. or international law such as deliberately targeting civilians or ordering murder, rape, or other crimes — are not lawful orders and therefore need not be obeyed; following them can lead to criminal liability for the subordinate [1] [4]. Historical court-martial examples (e.g., Lt. Calley in Vietnam) illustrate that carrying out an unlawful order can result in prosecution for the underlying crime rather than sheltering the subordinate [4].
3. The practical threshold: manifest unlawfulness and the presumption of legality
Multiple accounts stress that there is a “strong presumption” in military law that orders are lawful, and the doctrine of manifest unlawfulness is the pivot: only when illegality is obvious to a reasonable service member does the duty to disobey become practicable and defensible [3] [6]. That standard is not precisely defined in the UCMJ itself, making real-world decisions fraught — refusal can lead to punishment unless a court later finds the order was indeed unlawful [6] [4].
4. Which types of orders count as unlawful in practice
Legal analysts put unlawful orders into a narrow category: those that require clear violations of statutes or established international-law prohibitions (for example, intentionally targeting civilians or committing crimes long condemned by law-of-war principles) [1]. Orders that are politically controversial, reckless, or later deemed unwise do not automatically qualify as unlawful under the UCMJ [1].
5. Risk allocation: obey-and-argue versus refuse-and-defend
Practitioners and advocacy materials underscore a harsh reality: a service member often faces a choice between obeying and risking criminal liability for a potentially unlawful act, or refusing and risking punishment for disobedience — with the ultimate legal determination frequently only coming after investigation or trial [4] [5]. This creates a practical deterrent to on-the-spot refusal unless the illegality is clear.
6. Special problems at the top of the chain — civilian political orders
Scholars observe that questions multiply when orders come from civilian leaders at the top of the chain (e.g., a president or secretary of defense). The mechanics of prosecution, the presumption of civilian authority, and institutional checks make it legally and practically complicated to refuse such orders, even where critics argue they could be unlawful [7]. Lawfare analysis warns the UCMJ has limited, awkward tools for confronting extreme scenarios at the highest levels [7].
7. Competing viewpoints and legal uncertainty
Advocacy groups and legal commentators (e.g., Military Law Task Force materials) emphasize a servicemember’s duty to refuse illegal orders and urge robust protections for those who do [4]. Conversely, mainstream legal commentary and defense-oriented reporting emphasize the narrowness of the unlawful-orders exception, the presumption of lawfulness, and the rarity and high burden of proving manifest unlawfulness [1] [3]. This split produces policy tension: calls to teach and empower lawful refusal versus concerns about undermining discipline.
8. Takeaway for service members and policymakers
The settled principle is simple: obey lawful orders; disobey manifestly unlawful ones. The hard part — applying “manifestly unlawful” in real time — is unresolved in many contexts and is risk-laden for the individual [1] [3]. Available reporting and legal commentary urge clearer guidance and training, but available sources do not specify a single, bright-line test beyond existing case law and doctrine [6] [7].