As a member of the military, if you’re fortunate, you’ll never have to worry about whether you can or should disobey an unlawful order given by a superior (including the Commander in Chief). However, what if you are placed in that situation? How do you know for certain that an order is illegal? Are the consequences worse if you obey an unlawful order or if you disobey an order that is actually lawful?
In the oath that service members take, they pledge to “obey the orders of the President of the United States and the orders of the officers appointed over me…” The Uniform Code of Military Justice (UCMJ) specified that they are required to obey “the lawful orders of his/her superior.”
The case of the My Lai massacre
What about unlawful orders? Sometimes an unlawful order is clearly that. Perhaps one of the best-known examples occurred during the Vietnam War in what was known as the My Lai massacre. Army Lt. William Calley and some of the men in his command were court-martialed for killing hundreds of civilians.
Calley claimed was he was following an order from his superior, and the other men who were court-martialed claimed they were following his orders. The men under Calley who refused his order to round up and kill civilians of all ages who had survived a raid did not face court-martial.
In convicting Calley, the court described the order he and the others claimed to have been following as “palpably illegal.” It added, “For 100 years, it has been a settled rule of American law that even in war the summary killing of an enemy who has submitted … is murder.”
An order like this is easy to recognize as illegal. Others may not be. Even determining what a reasonable person might conclude can sometimes be difficult.
A military strategy you don’t agree with isn’t necessarily unlawful
It’s important to know that disagreeing with a military strategy is typically not grounds for disobeying an order. Some service members have tried unsuccessfully to do that. If you’re facing serious consequences for following or refusing to follow an order that you believed was unlawful, it’s crucial to know your rights and to seek experienced legal guidance.