Legal military orders

One of the most positive moments of the last years was the video that Sen. Mark Kelly, Sen. Ellisa Slotkin and four other sitting Members of Congress released two months ago to remind everyone in the military and the intelligence services that they are not only not required to follow illegal orders, they have a distinct legal duty to refuse illegal orders. (1)

Nan Levinson explained in December:

On enlistment, everyone in the military takes an oath of loyalty not to a person, a party, or any form of politics, but to the Constitution. Enlistees in all branches also pledge to obey orders from their officers and the president. As stipulated in the Uniform Code of Military Justice (UCMJ), it’s clear that this means only lawful orders. Officers take a slightly different oath: they, too, swear to support and defend the Constitution, but their oath doesn’t include anything about obeying orders from their superiors or the president, presumably because they’re responsible for giving orders and ensuring that those orders are lawful. Officers reaffirm their oath whenever they’re promoted. Across the board, the UCMJ, the Nuremberg Principles, and the U.S. Constitution establish the right and responsibility of servicemembers to refuse illegal orders or to refuse to participate in illegal wars, war crimes, or unconstitutional deployments. [my emphasis] (2)

Refusing to participate in a war on the broad grounds that it is un-Constitutional is a trickier process than disobeying a specific illegal order, e.g., an order to deliberately murder civilian noncombatants.

I remember back in 1989 when Oliver North was a hero to conservative Republicans because of his legally dubious role in selling arms to the Iranian mullahs – who were supposed to be our deadly enemies of the day. I went to a speech he gave in San Carlos, CA in 1989, which attracted many of his admirers at the time. (3) During the question session, one of his fans stood up and said it was terrible that he was being charged with a crime because he was just following orders.

Quoting from memory here, North responded immediately by saying, “No! Of course no one should follow an illegal order!” And he went on to say, “My contention is that I was never given an illegal order.” It’s a safe bet that his attorneys had coached him on not screwing up his defense by signing on to an I-was-just-following-orders alibi. But what he said then was a straight-up statement of the law. Just like the Members of Congress who repeated the same legal truism that inspired Trump to threaten to hang them.

During the Nuremburg Trials back after the Second World War, the Allied prosecution of war criminals based itself on laws that were formally binding on German soldiers and officers. The pre-1933 Weimar Constitution had never been formally abolished (until V-E Day’s unconditional German surrender). And there were no charges made at Nuremberg based on ex post facto laws.

The defense lawyers tried hard to find instances in which German soldiers disobeyed illegal orders and were subsequently severely punished or executed. Amazingly enough, they couldn’t find any. And the German Wehrmacht kept stereotypically obsessive-compulsive records!

The same was true of the Einsatzgurppen (reserve police battalions) that Christopher Browning wrote about in his 1992 book on them.

The “I was just following orders” alibi was and is what is politely called “b******t”. Telford Taylor, the chief US prosecutor at Nuremberg wrote about William Calley’s massacre at My Lai (Vietnamese name: Son My).in his 1970 book Nuremberg and Vietnam. The US commander, Hugh Clowers Thompson, who first intervened to stop the massacre, gave his forces (legal) orders to fire on Calley’s troops if they didn’t stop murdering civilians. In 1998, Thompson was awarded the Army’s highest award for bravery, the Soldier’s Medal, for his actions to stop the mass murder at Son My. As Taylor described it:

It appears certain that the troops had been told to destroy all the structures and render the place uninhabitable; what they had been told to do with the residents is not so clear. However that that be, the accounts indicate that C Company killed virtually every inhabitant on whom they could lay hands, regardless of age or sex, and despite the fact that no opposition or hostile behavior was encountered.

This was murder, not collateral damage or the “fog of war.” It was a criminal act, and , Hugh Clowers Thompson who stopped the massacre were doing their duty under military law. The fact that the current Secretary of Defense Pete Hegseth – who prefers to called himself the Secretary of War – tried to misuse his office and the federal justice system to prosecute sitting Members of Congress who are also military veterans for publicly stating the plain nature of the law is a dramatic illustration of how much the Trump 2.0 regime hates the entire concept of the rule of law.

VA News carried a report on Thompson and his medal in 2022:

On March 16, 1968, Thompson and his crew members, Spc. Glenn Andreotta and Spc. Lawrence Colburn, were conducting a routine reconnaissance mission. When they saw U.S. soldiers shooting at unarmed civilians, they intervened. Thompson later recalled thinking, “I was pretty upset. What was going on wasn’t right.”

Thompson landed the helicopter in the area between advancing U.S. soldiers and Vietnamese civilians. He convinced the soldiers to stand down while he gathered a small group of women, children and elderly and escorted them to safety with the help of other UH-1 Huey pilots. However, about 500 Vietnamese civilians had already lost their lives.

Upon returning to base, Thompson reported what he witnessed, and the Army issued a cease-fire order preventing any further attacks on civilians. He was awarded a Distinguished Flying Cross for his actions but threw the citation away because it presented a fabricated version of events that occurred at My Lai. He continued to fly reconnaissance missions until his helicopter was shot down and crashed. He broke his back and had to be evacuated to a hospital in Japan. He returned to the United States in 1968. (4)

Notes:

(1) Sen. Elissa Slotkin and 5 more YouTube channel 11/18/2025. We want to speak directly to members of the Military and the Intelligence Community... <https://youtu.be/Fk9Gh3qwW4I?si=X4A2ycicVPG_Tm_r> (Accessed : 2026-17-02).

(2) Levinson, Nan (2025): Doin’-the-Right-Thing Rag: Who’s Responsible When a Military Order is Illegal? (Don't Ask Donald Trump!) TomDispatch 12/16/2025. <https://tomdispatch.com/doin-the-right-thing-rag/> (Accessed : 2026-17-02).

(3) Miller, Johnny (2014): North's speech draws cheers and jeers in San Carlos. SFGate 06/15/2014. <https://www.sfgate.com/entertainment/article/North-s-speech-draws-cheers-and-jeers-in-San-5548481.php> (Accessed: 2026-17-02).

(4) America250: Army Veteran Hugh Thompson Jr. VA News 11/17/2022. <https://news.va.gov/111176/america250-army-veteran-hugh-thompson-jr/> (Accessed : 2026-17-02).