In March 1968, the grim realities of war confronted the world when news broke of the My Lai Massacre. A U.S. infantry platoon, under the command of 2nd Lt. William “Rusty” Calley, executed a raid on a South Vietnamese hamlet, resulting in the deaths of hundreds of unarmed civilians. This horrific event sparked intense legal and ethical debates, particularly around the concept of “lawful orders” within the military framework, specifically the Uniform Code of Military Justice (UCMJ).
Calley faced court-martial for his role in the massacre, charged with multiple counts of murder. His defense hinged on the claim that he was merely following orders from his superior officer, Captain Ernest Medina, who allegedly instructed him to eliminate “every living thing” in My Lai. Calley testified that Medina had assured him there were no civilians present, only Viet Cong. Even when Calley reported rounding up civilians, he claimed Medina directed him to “waste them.” Essentially, Calley attempted to justify his actions by asserting he was adhering to orders from his superiors, a claim Medina vehemently denied.
However, the court rejected this defense, underscoring a fundamental principle of military service: the oath taken by every commissioned officer is not an oath of blind obedience. The oath is to “preserve, protect, and defend the Constitution of the United States against all enemies, foreign and domestic.” This oath highlights that a soldier’s primary obligation is to uphold the law, which unequivocally prohibits the deliberate killing of unarmed civilians. Therefore, the argument that Calley was obligated to follow any order, regardless of its nature, was legally untenable.
The challenge lies in the complexities of real-world combat scenarios. Soldiers often operate under immense pressure, making split-second decisions where the distinction between lawful and unlawful orders may not always be immediately clear. Expecting soldiers to navigate intricate legal nuances in the heat of battle, under threat of court-martial for misjudgment, presents a daunting dilemma. This precarious situation is akin to navigating between Scylla and Charybdis, the mythical monsters forcing sailors to choose between two equally perilous paths.
The Uniform Code of Military Justice, augmented by the Manual for Courts-Martial, provides the framework to resolve this tension. The Manual for Courts-Martial, an executive order that supplements the UCMJ, establishes procedural rules and offers interpretations based on case law. Specifically, Rule 916(d) of the Manual for Courts-Martial addresses the defense of “obedience to orders,” stating:
It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
Calley’s conviction rested upon this very rule. The court determined that regardless of Calley’s perceived level of understanding, any reasonable individual would have recognized the illegality of slaughtering defenseless civilians. The order was deemed “palpably illegal.” The court emphasized a century-old precedent in American law: “even in war the summary killing of an enemy who has submitted … is murder.”
Thus, the order Calley cited as a shield against criminal responsibility – the directive to massacre civilians – was so transparently unlawful that any person of ordinary intelligence would have recognized its illegality. This raises the critical question: what constitutes an unlawful order that a soldier is obligated to disobey? And what about orders that exist in the gray areas, where legality isn’t immediately obvious?
It is crucial to distinguish between disagreeing with the tactical wisdom of an order and recognizing its illegality. A soldier cannot refuse an order simply because they believe a different approach might be tactically superior. For instance, an order to advance along a specific route, even if a subordinate considers it ill-advised, is undoubtedly legal. The complexities arise when objections are rooted in fundamental legal or ethical principles, such as the legality of a military operation itself.
The President’s authority to deploy military force is a subject of ongoing legal debate. In recent decades, presidential administrations have engaged military forces against groups like al-Qaeda and ISIS in various countries, citing the 2001 Authorization for Use of Military Force (AUMF) as legal justification. However, the interpretation of the 2001 AUMF to encompass actions in disparate locations like Yemen, Somalia, Iraq, and Syria is arguably a broad interpretation, pushing the boundaries of its original intent. President Obama’s 2011 military intervention in Libya, launched without Congressional approval or reliance on the AUMF, further fueled this debate. Instead, the administration cited a U.N. Security Council resolution establishing a no-fly zone as legal authorization for what evolved into a regime change operation.
The contentious nature of presidential war powers makes it exceptionally difficult for a service member to refuse deployment based on a belief that a military action is unlawful. When credible legal arguments exist on both sides of an issue, an order to deploy cannot be considered “palpably illegal.”
Several service members have unsuccessfully challenged deployment orders based on the perceived illegality of military operations. In 2006, 1st Lt. Ehren Watada refused deployment to Iraq, arguing the war was illegal. His challenge was dismissed, and he was not even permitted to present his defense in court. The court asserted that “the order to deploy soldiers is a non-justiciable political question … an accused may not excuse his disobedience of an order to proceed to foreign duty on the ground that our presence there does not conform to his notions of legality.” The judiciary is not empowered to overrule policy decisions made by the political branches of government. Ultimately, Watada received an administrative discharge under other than honorable conditions for his refusal to deploy.
Similarly, in 2016, Captain Nathan Michael Smith deployed to Kuwait in support of the campaign against ISIS but simultaneously filed a lawsuit challenging the legality of the operation. His lawsuit was also rejected on similar grounds; the court ruled that the decision to wage war is the purview of the political branches. In both the Watada and Smith cases, the core issue was that the deployment orders were not demonstrably, or “palpably,” illegal.
However, the My Lai Massacre and subsequent legal proceedings clearly illustrate that certain orders are unequivocally illegal. An order to torture a detainee is another such example. Military training explicitly teaches that torture is illegal. The U.N. Convention Against Torture, ratified by the United States, prohibits cruel, inhumane, or degrading treatment of detainees. The U.S. Army Field Manual 2-22.3, governing human intelligence collection, also explicitly bans torture, permitting only 19 interrogation techniques, none of which constitute torture, and two requiring special authorization. The McCain Amendment to the 2006 National Defense Authorization Act further reinforces this by prohibiting Department of Defense personnel from using any interrogation technique not authorized by the Army Field Manual. DoD Directive 3115.09 also explicitly forbids torture.
Therefore, an order to torture a prisoner would be undeniably illegal. There is no defensible legal argument that techniques like waterboarding are permissible. No service member could plausibly claim ignorance of this prohibition. Any member of the military receiving such an order would not only be permitted but obligated to disobey it. Failure to do so would expose them to criminal charges under Article 92 of the UCMJ for dereliction of duty in failing to follow lawful regulations and for cruelty and maltreatment, and Article 134 for general misconduct. Officers could also face charges under Article 133 for conduct unbecoming an officer.
The Abu Ghraib prison scandal in 2004 starkly illustrated these principles. The exposure of widespread prisoner abuse, including sexual abuse and humiliation, led to court-martials for eleven soldiers and disciplinary actions against senior officers like Lt. Col. Steven Jordan and Col. Thomas Pappas for dereliction of duty.
Some soldiers involved in the Abu Ghraib abuses attempted to use the “superior orders” defense, but none succeeded. While Lt. Gen. Ricardo Sanchez, then commander of U.S. forces in Iraq, had authorized interrogation techniques such as the use of dogs, sleep deprivation, and extreme temperature exposure, these techniques were not authorized by the then-current Army Field Manual (FM 34-52). Sanchez’s memo constituted an illegal order, though he faced no disciplinary action. Soldiers assigned to detainee operations are expected to be knowledgeable about authorized interrogation techniques. Claiming ignorance of the rules to defend against dereliction of duty charges would essentially be admitting to dereliction by failing to learn the rules.
Moreover, much of the abuse at Abu Ghraib went far beyond any authorized techniques. Guards engaged in acts such as urinating on detainees, forcing simulated oral sex, compelling naked inmates to lie in piles, and even sodomizing them with broomsticks. There were also reported instances of U.S. soldiers raping female inmates. None of these actions were, or could have been, authorized at any level. Any soldier ordered to participate in such acts would have an immediate and unequivocal obligation to disobey and report the abuse.
This principle of disobeying palpably illegal orders extends to violations of the law of war in combat. Commanders must make difficult decisions regarding strikes that carry the risk of civilian casualties. The law of war does not demand the complete elimination of civilian casualty risk, but it does necessitate that strikes meet the criteria of necessity and proportionality. This means the military value of a target must outweigh the potential harm to civilians. When a commander makes a reasonable judgment regarding proportionality, subordinates are obligated to execute the order, even if they might have made a different assessment.
However, certain strikes can be palpably illegal. The Fourth Geneva Convention explicitly prohibits attacks targeting civilians (Article 27) and hospitals (Article 18). Reprisal attacks are also forbidden (Article 33). Therefore, an order to harm the relatives of a terrorist or destroy their property as retaliation would be clearly illegal, and subordinates would be required to disobey. The My Lai Massacre itself was, in part, a reprisal attack, motivated by revenge for the death of a popular sergeant.
The “superior orders” defense in cases of reprisal attacks is exceptionally weak. In 2008, soldiers from Alpha Company, 1-18th Infantry, executed four Iraqi prisoners near a canal. The prisoners, captured during a raid, denied knowledge of weapons found in a house. The company’s first sergeant ordered their execution as revenge for fallen comrades. While some soldiers refused, others participated. Those involved in the killings faced court-martial. One pleaded guilty, while another, who participated, argued combat stress but was convicted and sentenced to life. The first sergeant who issued the order denied the killings but was also convicted. Notably, none involved attempted to use the “superior orders” defense, recognizing its futility.
The military operates as a hierarchical organization, requiring obedience to lawful orders for functionality. However, U.S. service members are not automatons, relinquishing moral judgment upon enlistment. They defend a nation founded on laws, not on arbitrary power. Their duty to obey superiors is explicitly limited to lawful orders; palpably illegal orders must be disobeyed.
John Ford is a former military prosecutor and a current reserve U.S. Army Judge Advocate. He now practices law in California. You can follow him on twitter at @johndouglasford.
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