President Donald Trump has sparked a heated debate by asserting that Democratic senators’ video, which encourages service members to “refuse illegal orders,” should be “punishable by death.” This statement has sent shockwaves through both political parties and raised questions about the implications of such advice under federal law. The senators leading this initiative—Sen. Elissa Slotkin of Michigan, Sen. Mark Kelly of Arizona, among others—frame their message as a safeguard for the Constitution. However, military law presents a stark contrast to their interpretation of service members’ duties.
Under the Uniform Code of Military Justice (UCMJ), military personnel are required to follow orders from superiors, except in rare instances where the lawfulness of an order is “manifestly” clear. This means that unless an order is obviously unlawful—such as commands to commit acts of violence against civilians or engage in torture—service members must adhere to these directives. Rachel VanLandingham, a retired Air Force Judge Advocate General (JAG), emphasized the unfairness of placing the burden of legality on military personnel rather than policymakers. She stated: “You can’t expect a sailor to overrule Washington lawyers.”
The repercussions for disobeying a lawful order can be severe. Article 90 of the UCMJ outlines penalties that include confinement, forfeiture of pay, and potentially a dishonorable discharge. In wartime scenarios, the stakes can escalate to the death penalty. This framework underscores the importance of maintaining military discipline and the chain of command, both of which could be disrupted by the senators’ call to action.
Experts in military law note that disobeying orders carries considerable risks for service members. Geoffrey Corn, a Texas Tech law professor, pointed out that while there is no obligation to follow illegal orders, those who refuse orders based on a belief in their illegality do so at great peril. The onus is on the service member to demonstrate that the order was indeed illegal—a challenging and risky proposition.
The risks extend to those who act on illegal orders as well. Under Article 77, service members executing unlawful commands could face charges equivalent to those against the commander who issued the order. This principle, established after World War II, reinforces accountability at all levels of military command.
Current military order policies assume that most commands are lawful. Victor Hansen, a former Army JAG officer, explained that soldiers are not tasked with scrutinizing the legality of presidential orders regarding troop deployments or military strikes. Instead, they must operate under the presumption of legality. He advised that no changes should occur in response to the video’s message: “If a soldier came to me after seeing that video, I’d tell them: do nothing different than you’re already doing.”
The senators’ video, titled “Don’t Give Up the Ship,” lacks clarity on what constitutes an illegal order and stands in sharp contrast to existing doctrines that govern military conduct. Conservatives have critiqued the initiative, suggesting it promotes insubordination. Secretary Pete Hegseth referred to the video as a manifestation of “Stage 4 TDS,” alluding to a perceived irrational obsession with Trump among his detractors.
Callers to the military, including senior officials at the Pentagon, caution that asking troops to independently evaluate legality could undermine civilian oversight—a principle foundational to the American governance system. Military regulations endorse seeking legal advice through proper channels before refusing an order, except in cases of glaring illegality.
One former deputy JAG, Maj. Gen. Steven Lepper, remarked that while the video essentially echoes existing legal standards, it runs the risk of muddying the waters regarding who holds accountability for unlawful commands. He noted, “There’s a strong presumption that military orders are lawful…if the presumption ran the other way, our military would be hopelessly weakened.”
Historical context serves as a reminder of the legal and ethical dilemmas faced by service members. The My Lai Massacre in Vietnam exemplifies the perils of blind obedience leading to atrocities, while the Abu Ghraib scandal highlighted failures in oversight, with individual soldiers facing consequences while senior leaders largely escaped accountability.
VanLandingham voiced concerns over the video’s potential impact, arguing it presents a distorted view of the legal duty to refuse orders. She pointed out that the number of orders deemed manifestly unlawful is intentionally small, emphasizing the military’s dependence on obedience. She concluded, “Go after the policymakers who issue unlawful orders. Congress should be reining in the executive, not telling privates and lieutenants to decide what’s legal.”
For service members, the implications are grave. The choice to refuse a lawful command or obey an unlawful one can jeopardize not just careers but livelihoods and benefits that extend well into civilian life. The video’s proponents assert a commitment to constitutional duty, but the reality of military law suggests that individual interpretation is fraught with risk. The UCMJ clearly delineates where the responsibility lies, leaving little room for ambiguity amid the pressures of military service.
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