Dear JAG: What Do I Do if I Get Unlawful Orders to Blow Up Civilian Boats
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This month saw another deadly U.S. military strike on a civilian vessel, suspected of drug trafficking, in international waters. As these strikes have escalated, questions have only increased around their lawfulness. At the same time, President Donald Trump last week accused Democratic lawmakers of "treason" for producing a viral video noting that members of the military must remain vigilant in the face of potentially unlawful orders from the commander in chief. On Monday, the Pentagon announced it was investigating Sen. Mark Kelly for the video about unlawful orders.
As a former judge advocate in the Coast Guard and a retired Air Force major general who served as deputy legal counsel to the chairman of the Joint Chiefs of Staff and deputy judge advocate general of the Air Force, we offer some perspective on how members of the military can and should respond to such orders.
The following "Dear Joe" email exchange is a hypothetical email colloquy between an expert in military law and a fictional service member seeking advice on how to deal with the current situation. The content is based on publicly reported facts, the Manual for Courts-Martial, the Uniform Code of Military Justice, and the authors' opinions.
Military law establishes a strong presumption that military orders are lawful and must be obeyed. We do not counsel any military member to disobey any order they may be given. Our purpose is simply to provide all readers insight into the laws and procedures associated with military orders and the challenges involved in identifying, questioning, and disobeying orders that are unlawful.
I hope this finds you well. It's been a while since we connected; I'm now a skipper of a great ship with a super crew. I can't tell you exactly where I am or what I'm doing, but it's the kind of weapons-on-target stuff we learned when we first qualified as surface warfare officers together -- before the Navy sent you to law school.
I'm reaching out today because I've read some of the stuff you've published recently on topics like illegal orders and using the military in "unconventional" ways, and I'm hoping you can help me understand the difference between lawful and unlawful orders and what I should advise my shipmates to do if they're ever ordered to do something they think may be illegal. I remember learning some of this at the Naval War College, but I pretty much slept through the class because it was all so theoretical and I never thought I'd really need to use it. Now that we're actually targeting boats and killing people, a lot of people have a lot of questions -- and I don't feel like I can answer them wisely.
Anything you can do to help me understand this part of the forest would be greatly appreciated. It's enough to worry about my ship, my crew, and our mission. I don't want to keep losing the little sleep I am getting worrying about whether the mission we're doing is legal.
Joe, it was great to get your email. We haven't been in touch for a while -- you stayed in the Navy; I went into private practice after wrapping up my obligated service in the JAG Corps. I see that you somehow got promoted (shocking!) and are now commanding USS Widget, on duty in the Caribbean. Your email gave me the impression that you might be involved in the ongoing operation against suspected drug-runners -- and that it was giving you some sleepless nights. I'm sorry to hear that. I can't give you legal advice, but I might be able to help refresh the lessons you slept through at Newport. Unfortunately, what I have to say is not necessarily going to entirely cure your current insomnia.
As you mentioned, I and a lot of other folks have written about the growing roster of boat strikes and fatalities. Maybe you've read some of this work on Just Security, Lawfare, Lawfire, and elsewhere. If those publications aren't on your reading list, what I suspect did grab your attention was the recent Washington Post report about a classified Office of Legal Counsel memo that concluded: "The strikes were ordered consistent with the laws of armed conflict, and as such are lawful orders. Military personnel are legally obligated to follow lawful orders and, as such, are not subject to prosecution for following lawful orders."
While the second sentence of this quote is generally true, the first sentence is a non sequitur. The laws of armed conflict (LOAC) have nothing to do with deciding whether the strikes are lawful. First, the U.S. is not in an armed conflict; as many commentators have observed, no country or organized group has attacked or used armed force against us. Nor can a plausible claim be made that such an armed attack is imminent. Consequently, most legal experts have concluded that the United States is NOT engaged in an armed conflict and that the strikes are NOT lawful. Once an armed conflict has been deemed lawful, LOAC applies to regulate the conduct and application of our armed forces. All of this is to say that the DOJ spokesman's suggestion that LOAC is applicable here is wrong. So is his second point suggesting that orders issued consistent with LOAC are legal. It incorrectly presumes that any order given in the LOAC context is per se lawful and hence must be followed, "no ifs, ands, or buts."
Of course, lawful orders must be followed, but simply stenciling "LOAC" on an order does not make it lawful, even if the label had been correct (which this one isn't). A LOAC-related order may be unlawful, as can an order that arises in the law-enforcement context, which I think is what you are currently actually dealing with.
The problem I suspect you and your crew are wrestling with is that, although the government says the operation is lawful, you're being ordered to target nonmilitary vessels and kill the civilians operating them. This is where the lawful v. unlawful orders discussion you slept through at the War College becomes critical. To help you and your sailors understand the legal principles at work whenever questions arise about the lawfulness of military orders, I will break them down:
First principle: Orders are presumed to be lawful, but that presumption is rebuttable rather than conclusive. Under the 2024 Manual for Courts-Martial, "an order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate." What this means for you and your shipmates is that all orders must be followed ... unless they are unlawful. This last part leads to the second principle.
Second principle: The Manual goes on to say the inference that an order is lawful "does not apply to a patently illegal order, such as one that directs the commission of a crime." Unfortunately, this principle seems to apply to the boat strikes.
Third principle: The Manual continues: "The lawfulness of an order is a question of law to be determined by the military judge." As a result, neither DOJ's statement, nor the still-unavailable OLC opinion, nor the say-so of the president, the attorney general, or the secretary of defense is the last word. Who will have the last word on whether the strikes are "patently illegal"? In your case, that would be the civilian U.S. Court of Appeals for the Armed Forces, subject to ultimate review by the Supreme Court.
Because military operations will never include a military judge who can opine on the spot about the lawfulness of orders, military personnel generally have little choice but to rely on the first principle, above, that all orders are presumed lawful. This means it is always far more likely that you and your crew will obey unlawful orders than disobey lawful ones.
Fourth principle: To address this likelihood, the Manual includes a fourth principle you need to be aware of in order to get a proper handle on your potential legal exposure based on involvement in the strikes.
Rule for Courts-Martial 916(l)(1), Ignorance or mistake of law, states: "Ignorance or mistake of law, including general orders or regulations, ordinarily is not a defense." Ah, you spotted the weasel word "ordinarily." Maybe that's the get-out-of-jail-free card that will improve your sleep. Maybe. Here's what the official "Discussion" to that rule says:
What to make of this? Unfortunately, the few court decisions that have applied this principle shed little light on the kind of issue you are confronting. Also, note the drafters' use of the permissive "may." How much comfort should that give anyone who thinks they might have been given an unlawful order?
If I were advising you and your crew, I'd also wonder about some other legal nuances. For example, is reliance on decisions or pronouncements from administration officials, like those in the yet-to-be-released OLC memo, subject to a "reasonableness test"; that is, would a "reasonable" service member agree with its legal conclusions? Is it reasonable to rely on policy pronouncements -- such as those reportedly contained in the OLC memo -- that simply assume the legality of unprecedented military action that might otherwise be criminal without offering any further details? Finally, what if the legal conclusions and policy pronouncements are simply wrong, as the lion's share of the expert commentary about the boat strikes concludes? If you're wondering why I took this detour, it's because you need to know that this stuff is also confusing for lawyers. It's easy for anyone to repeat the mantra "you have a duty to disobey unlawful orders"; it's hard for me, you, and your shipmates to know and decide when and how to do that.
I'm sure you've figured out by now that the burden that's been weighing on you has been placed on your shoulders by your superiors who should have been asking the same questions and who should have been pushing back against any orders they believe are unlawful. You stand in the same position vis-à-vis your crew. If you believe the orders you've been given are unlawful -- especially if you've come to that conclusion after talking with your JAG -- your best recourse is to express your concerns to your boss before you pass them to your crew. Ideally, those concerns will work their way up the chain to a level where something meaningful -- like having the orders changed or revoked -- can be achieved. If that doesn't work, your only remaining options are to follow your orders, resign, or disobey and make yourself a test case.
If you're hyperventilating at this point, calm down. All of this may be of little practical concern since the chances of your ever actually facing a court-martial for obeying these particular unlawful orders are slim to zero. History (e.g., the Nuremberg and Tokyo war crimes trials) suggests that personal responsibility for engaging in unlawful acts, especially pursuant to orders from the nation's most senior leaders and on a scale like we're seeing in the Caribbean and eastern Pacific, is generally limited to those most senior military commanders who should have known better but did not exercise their authority to do better. They are the ones most likely to be held accountable for obeying and transmitting unlawful orders because they are the ones who had the best chance of getting those orders changed or revoked.
While your practical legal liability may be minimal, we should all be concerned about where our nation is headed. The orders you've been given to destroy nonmilitary vessels are as problematic as the orders other military units have been given to engage in law enforcement activities on the streets of our cities. All reflect the increasing misuse -- illegal use in many cases -- of armed forces that are organized, trained, and equipped to defend us from foreign enemies. Further, we are on a trajectory toward firing the first shots in a war of aggression against another sovereign nation: Venezuela. What that means is that we are on the threshold of subjecting ourselves to the same international criticism and legal risk to which Russia exposed itself when it invaded Ukraine. That's not the United States you and I took oaths to defend. If there's something to lose sleep over, maybe this is it.
Get some rest, pal, and say hi to Susie for me. If you wind up needing a lawyer, let me know and I'll get you some names.