4:36Saluting American soldiers.STOCK PHOTO/Adobe Stock
U.S. armed forces personnel possess the lawful authority to decline commands deemed illicit; however, they risk contravening military regulations concerning obedience if the command is, in actuality, legitimate, according to authorities on military jurisprudence.
Active duty personnel are expected to consider their commands as legitimate — in the event that they pertain to military obligations and originate from a qualified supervisor inside the hierarchy — unless the commands fall under a "limited category" of flagrant directives that would be classified as war atrocities. That benchmark was established during the Nuremberg tribunals following the Second World War, where Nazis could not excuse their actions by stating they were merely following orders.
Nevertheless, the majority of orders that obscure the distinction between what is lawful and what is unlawful exist in a dubious realm in which soldiers, airmen, sailors, Marines and coast guard personnel are not required to defy. They retain the option to reject a command, but — by the time the directive has been given — a military attorney will probably have already assessed the legality of the command, as former attorneys for the armed forces communicated to ABC News.
Saluting American soldiers.STOCK PHOTO/Adobe Stock
In recent days, directives from the military have faced greater scrutiny in Washington, D.C., after a cohort of Democratic legislators — each one a military veteran or former employee of the U.S. intelligence community — shared a video asserting that the oath of enlistment necessitates that military personnel refuse "unlawful commands."
"At present, the threats to our Constitution are not solely originating from foreign lands, but also from within our nation," the legislators informed service members. "Our statutes are unambiguous: You are permitted to refuse illicit commands. … You must decline illegal orders. No individual is obligated to fulfill commands that contravene the law or our Constitution."
Sen. Mark Kelly, a Democrat from Arizona who dedicated 25 years to the Navy and worked as a NASA astronaut, stated that the group was merely "defending the Constitution."
"I believe it is vital to affirm that nothing is more fundamentally American than advocating for the Constitution; that is what we were doing. The President disagreed, and now he proposes we be hanged," Kelly conveyed to CNN.
Sen. Elissa Slotkin, a former CIA agent who participated in the video, informed ABC News' "This Week" on Sunday that legislators disseminated the video due to direct solicitations from military officers expressing apprehensions.
"Repeatedly, we have encountered reports of legal officials, JAG officers, stepping forward and expressing reservations. 'We are raising objections to this. We are uncertain whether this is compliant with the law,'" Slotkin remarked. "Unlawful commands do exist. That is the reason for its inclusion in the Uniform Code of Military Justice, drawing parallels with the Nuremberg principles. It is a fully harmless declaration."
According to retired Lt. Col. Rachel VanLandingham, a Southwestern Law School professor and past judge advocate general (JAG) in the U.S. Air Force, a service member "must" decline commands exclusively in instances of "obviously" unlawful actions, consistent with the Nuremberg doctrine.
The Department of Defense stated in a press release on Monday that it would initiate an inquiry into Kelly for his role in the video.
Military law, referred to as the Uniformed Code of Military Justice, encompasses military retirees, an arrangement achieved after 20 years of service that bestows a pension dependent on rank.
Defense Secretary Pete Hegseth, reiterating President Donald Trump, described the video as "seditious."
"Pressuring our armed forces to disregard directives from their Commanders undermines all elements of 'good order and discipline,'" Hegseth published on X Monday.
The Pentagon "is examining his comments and behaviors, which were communicated directly to all armed forces personnel while overtly employing his rank and affiliation — imparting the impression of authority to his statements," he further stated.
Vice President JD Vance also offered his perspective on social media: "Provided the president has not issued unlawful commands," he wrote, "the act of members of Congress instructing the military to defy the president is inherently illicit."
John Dehn, a professor at Loyola University of Chicago School of Law and former Army JAG officer, proposed that the administration may assert that the video prompts inquiries regarding the separation of powers.
"I surmise that the Vice President is suggesting that members of Congress ought not to preemptively judge the legality of directives that might be issued, and that such actions are prone to disrupting the military chain of command," Dehn clarified.
However, it "remains unresolved" whether the statute cited by the Pentagon — concerning an "intent to interfere" with military fidelity and morale — may be employed to prosecute "members of Congress reminding service members of their fundamental duty to refrain from executing unlawful commands," he appended.
Sen. Mark Kelly looks on at a press conference calling for the release of the Epstein files, on Capitol Hill, Nov. 18, 2025.Annabelle Gordon/Reuters
For military personnel, electing to disobey entails risk.
"The potential risk is the burden of the service member should they determine to defy an order that is later shown to be lawful," Dehn asserted. "They presume the risk that the order could be lawful when they defy, which provides another rationale for recommending that soldiers who inquire on this matter seek clarification, and legal consult if feasible."
"Disobedience is not the starting point," he stated.
A military judge — as opposed to a jury — would be responsible for establishing whether a defied command was lawful, according to experts.
"The law affords all commands the presumption of legitimacy, assuming it is issued by an appropriate authority and related to military obligations," VanLandingham emphasized. "The standard is adherence to all directives, under the assumption that all directives are lawful."
This standard is "comprehensible," VanLandingham remarked, "given that the military has historically been a hierarchical structure whose essence, its fundamental principle, is adherence to orders."
"My core objection to the congressional video was its failure to appreciate the predicament in which service members genuinely find themselves," VanLandingham included. "Strong adherence to orders is the norm … notably when you have individuals such as legal advisors attesting to its legality."
In recent interviews, legislators involved in the video have questioned the United States military actions in the Caribbean Sea and Eastern Pacific Ocean against purported drug traffickers — in which 21 strikes have led to 83 fatalities, according to the Defense Department — as well as the federal implementations of the National Guard to American cities such as Los Angeles.
The legislators did not include these specific references in the video. Since its publishing, Kelly and Slotkin have admitted that they cannot pinpoint an explicit recent military order that they deem illicit, despite Slotkin acknowledging to ABC News' "This Week" on Sunday that "there are undoubtedly legal technicalities surrounding these Caribbean strikes and issues pertaining to Venezuela."
Whether any service members have been ordered to contravene the law remains unclear.
VanLandingham claims service members have received "legal protection" from attorneys who have delivered judgments on lawfulness.
Concerning strikes as part of the military’s anti-narcotics initiative, a confidential memorandum from the Office of Legal Counsel at the Department of Justice, which was detailed to members of Congress, substantially impedes the capacity of service members to defy orders.
Service members can consult with a judge advocate, or military attorney, should they be uneasy with an order.
"One may consult a military attorney to request counsel on the legality, or absence thereof, and if one continues to believe that it is illicit, then one may defy it and evaluate the outcome," VanLandingham noted.
"Service members act at their own risk in cases of disobedience," she concluded.
Hegseth has openly disparaged military attorneys when recalling his interactions with JAGs during his Army service. In February, the secretary dismissed the most senior JAGs of the Air Force and the Army.
Sourse: abcnews.go.com
