Nov 29, 2025
Responsible officials in Washington are suddenly and very publicly reminding American service members of a principle as old as the Uniform Code of Military Justice itself: you must refuse illegal orders. On the surface, it sounds like an unimpeachable rule—clear, settled, beyond debate.
But that civics-book clarity hides a harsher truth, one that has surfaced in every modern American war zone from Vietnam to Iraq to Afghanistan: when conscientious officers refuse illegal orders, the very system that taught them that duty often punishes them for honoring it. Integrity is celebrated in theory and penalized in practice.
The tension has sharpened as the Trump administration probes ways of expanding military authority beyond long-standing legal limits. Senior aides have floated the idea of deploying Army and Marine units to enforce federal immigration directives inside resistant states. According to press reports, the administration has also drawn up legal opinions providing immunity for troops in drug-boat strikes south of the border. Critics warn such a shift amounts to a dangerous expansion of military authority into realms traditionally handled by law enforcement.
Into this thickening fog have stepped six lawmakers with extensive national-security experience. Senator Mark Kelly draws on his years as a Navy combat pilot and Senator Elissa Slotkin on her service as a CIA analyst and senior Pentagon official. Representatives Jason Crow, Chrissy Houlahan, Chris Deluzio, and Maggie Goodlander come forward as proud military veterans—an Army Ranger, Air Force officer, Navy veteran, and Navy JAG/intel lawyer, respectively.
They all share the belief that service members have a duty to refuse unlawful commands, an obligation rooted in the UCMJ and in the oath every member of the military and intelligence community swears to the Constitution.
In mid-November, they posted a powerful group video expressing these convictions. Each delivered a key phrase, and together they voiced the same core message: “You can refuse illegal orders… You must refuse illegal orders… No one has to carry out orders that violate the law or our Constitution.” They also warned that “right now the threats to our Constitution aren’t just coming from abroad, but from right here at home.”
Once the video went viral, Trump erupted, denouncing it as “seditious behavior, punishable by DEATH!” and amplifying posts saying the lawmakers “should be hanged”—threats the White House later tried to soften but did not delete. His advisers chimed in, claiming the video undermines civilian control of the military, even as these same bobbleheads defend a view of presidential authority so sweeping it effectively places unlawful orders beyond challenge.
Kelly later told CNN that in “day-one officer training” candidates are taught to defy an illegal order. Slotkin said that Trump’s fury only underscored “how close we are to a constitutional tripwire.”
And now, incredibly, senior Pentagon officials are toying with the possibility of recalling Kelly to active duty so they can court-martial him for sedition over the video. Such a measure would have been unthinkable in any previous administration. It confirms just how frayed the traditional boundary between civilian and military authority has become.
At various times during Trump’s first term, four generals hovered at his elbow to restrain his worst instincts. Now one of his central problems is the buffoon he has hired as his Defense (“War”) Secretary. Not only is Pete Hegseth a walking offense to the heroes who went before him; during his confirmation hearing he radiated uncertainty about whether he would enforce detainee rights and war-crimes norms.
When asked if he would abide by portions of U.S. law that echo the Geneva Convention prohibitions against war crimes and prisoner abuse, he insisted, “We follow rules,” then added: “we don’t need burdensome rules of engagement that make it impossible for us to win these wars.” Pressed to commit unequivocally to the Geneva provisions against torture, he again ducked direct answers: “What an America-first national-security policy is not going to do is hand its prerogatives over to international bodies.”
If you wonder why Kelly and company felt compelled to reaffirm American adherence to the UCMJ, you need only listen to Hegseth’s game of dodge-’em.
In a sense, though, his ambivalence is an artifact of history, a reflection of our decidedly mixed record in enforcing legal constraints on excess in warfare. In the past two decades alone, service members who tried to uphold the law by refusing illegal commands have frequently found themselves isolated, punished, or quietly pushed aside.
Abu Ghraib was the first major fracture of the post-9/11 era. Months before the world saw the photographs, several MPs had already refused to strip detainees, stage degrading poses, or “soften up” prisoners for interrogators. Their refusals were treated as irritants. The protesting soldiers were reassigned or stigmatized. Specialist Joseph Darby, who provided the evidence to Army CID, had to be evacuated after military families threatened his life. Senior officers kept their positions or escaped major punishment; junior refusers bore the consequences.
In 2010, the Army’s so-called Kill Team “neutralized” unarmed Afghan civilians and staged their bodies for photographs. Specialist Adam Winfield had warned superiors months earlier, telling them the planned killings were “murder” and that he would not take part. His chain of command dismissed his alarms. PFC Justin Stoner, who later reported the crimes, was beaten by fellow soldiers. Commanders initially tried to discipline Stoner for minor infractions before acknowledging the crimes he exposed. Winfield, who had tried to stop the killings, was initially charged alongside the perpetrators.
At Guantánamo, interrogators who refused to use “Category III” torture techniques were sidelined. Major General Antonio Taguba, whose report confirmed systematic prisoner mistreatment, was effectively pushed out of the Army for doing what the law required.
In Iraq, Army interrogator Tony Lagouranis declined to apply abusive tactics—extreme heat and cold, stress positions, the use of dogs—and soon found himself on the margins. His later disclosures produced no institutional change.
Drone operator Brandon Bryant refused missions he believed lacked legal targeting grounds. His objections produced no serious review.
Even in the street battles of Fallujah in 2004, the fighting blurred the distinction between civilians and combatants to a degree unseen in earlier wars. Official after-action reports and later accounts describe Marines forced into house-to-house combat under rules of engagement constantly pressed to the limits of legality. These conditions produced enormous ethical strain and recurring questions about civilian protection. Those who tried to sound the alarm found little institutional backing.
The experience in Fallujah foreshadowed a larger pattern across Iraq and Afghanistan: when front-line troops confronted the moral and legal contradictions of the mission, they met ambiguity rather than the clear protections the law promised.
And when officers challenged the legality of entire deployments rather than discrete commands, the response was harsher still. Lieutenant Ehren Watada, who refused orders to deploy to Iraq in 2006 because he believed the war violated international law, was court-martialed; only a mistrial spared him prison. Sergeant Kevin Benderman faced similar consequences after raising Geneva Convention concerns.
Neither case compelled the Army to reconsider how it treats lawful dissent.
The roots of this contradiction run deep. I saw variations on it in Vietnam.
During my multiple tours in-country as a CIA officer, I interrogated numerous prisoners, including the highest-ranking enemy cadre ever captured. Given the brutality of the communist invaders and their penchant for abusing prisoners, my South Vietnamese counterparts were disinclined to treat captives gently. Excesses were frequent. In every instance where I had any sway, I ordered the mistreatment stopped.
But no moral argument traveled easily across cultures—no invocation of the UCMJ to which I felt morally bound. The only way to stop the torture was to point out, time and again, that information surrendered under duress or drugs could not be trusted or relied upon to save lives. Simple self-interest commended humane treatment.
Sometimes such arguments prevailed, at least until the 1973 ceasefire and withdrawal of the last U.S. forces. Afterwards, ARVN commanders arranged for me and every other CIA officer to be excluded from the National Interrogation Center. I could no longer answer for what happened there.
I suspected the worst. But as my access diminished, so did the authority and incentives of my superiors to intervene. One of them told me it would be the height of arrogance to enforce Western morality on an Asian country with 140,000 enemy invaders twenty minutes from the capital.
Such reasoning complicated every “right” choice in Vietnam. Gray areas abounded. A strong case could be made that the extreme isolation in which some of my interrogation subjects were held amounted to torture, and that the authorizing directives were therefore illegal. I considered that argument and consigned it to my “borderline” file. The war itself was a borderline issue of borderline legality. My thinking was that you had to pick your fights if you were going to make any difference for the better. If that was a rationalization, then I am damned by it.
Some lines were easier to draw, but even then the outcome was a dice throw. During my first tour, 1969-1971, I contributed operational intelligence to the notorious Phoenix Program and knew full well that the kill totals exceeded any known shrinkage of the VC political-cadre network. Somebody was getting wasted, but not always an enemy operative. I reported the discrepancy to the CIA director’s office and was told: Excellent! I had done my duty. But there was no apparent change in PRU methods.
My response? I hunkered down and tried to refine my intelligence gathering so PRU teams could operate more surgically, with better information and less collateral damage.
That was what often passed for protest against questionable operations in Vietnam.
There was an infamous test case outside my direct experience that brought brutality and illegal-orders questions front and center. Shortly after I arrived, the first credible reports of the My Lai massacre surfaced. According to later Army tallies, American troops operating in three central Vietnam villages in March 1968 slaughtered 347 civilians within a few hours, mostly women, children, and elderly men. Journalistic accounts put the toll at 500 or more.
I eventually learned that the helicopter pilot who tried to stop the killing, Hugh Thompson, faced intense hostility inside his own service for reporting what he saw.
The Peers Inquiry later confirmed both the atrocity and the military cover-up. What followed, however, was hardly moral or legal expiation.
Only one U.S. serviceman was ever punished for the massacre, despite more than two dozen being charged in connection with the killings and cover-up. Second Lt. William Calley was convicted of 22 counts of murder but ultimately served only about three and a half years under house arrest. All other charges were dismissed or ended in acquittals.
Even the highest-ranking officer implicated, Maj. Gen. Samuel Koster, escaped criminal sanction. The Army dropped charges and instead imposed administrative penalties, demotion, medal removal, formal censure.
The result exposed deep institutional reluctance to impose meaningful accountability for war crimes, especially at senior levels.
In June 1970, an ethics survey ordered by Gen. William Westmoreland, then Army chief of staff, documented pervasive dishonesty throughout the officer corps, a culture that rewarded self-protection over truth. These findings should have transformed the Army’s understanding of integrity and illegal commands. Instead, the reports were contained, downplayed, buried under secrecy labels.
The same dynamic has resurfaced in every conflict since. The law and common morality say one thing; the institution does another.
This isn’t conjecture. It’s the cumulative product of decades of studies by former JAGs, law-of-war experts, Pentagon review panels, and international-law scholars who have examined, case by case, how the system actually operates.
Thomas Wayde Pittman and Matthew Heaphy established a baseline in a seminal 2008 article in the Leiden Journal of International Law, “Does the United States Really Prosecute Its Service Members for War Crimes?” Among other leading scholars: Geoffrey S. Corn, former Army JAG and now at Texas Tech University, and Rachel VanLandingham, former Air Force Judge Advocate and now a law professor at Southwestern Law School.
As Corn and VanLandingham write in a detailed assessment of Iraq- and Afghanistan-era cases, the command-controlled justice structure contains “persistent structural deficiencies” that discourage full and independent inquiry.
Their research, echoed by Pentagon-commissioned reviews, shows that commanders, who decide whether allegations are investigated and how far they proceed, face operational and institutional pressures that “push serious misconduct toward administrative resolution,” often before a formal case ever forms.
Another core finding: the U.S. military is habitually reluctant to label anything a war crime, even when the conduct meets the legal definition.
In their 2008 survey, Pittman and Heaphy concluded that the U.S. “almost never charges war crimes as war crimes,” preferring to repackage them as ordinary UCMJ offenses—murder, manslaughter, assault—that carry none of the political or diplomatic weight the term war crime implies.
And when allegations survive the initial gauntlet, investigators often lack the time, tools, or independence to build a robust record, especially in an active war zone. As Corn and VanLandingham note, many cases collapse because the system suffers “structural defects” that prosecutors later cite as reasons to decline charges.
Perhaps most telling is what U.S. agencies almost never do: pursue command responsibility. Other militaries and most international tribunals follow the Nuremberg model and treat supervisory accountability as a central pillar of enforcement.
The U.S. has never properly tested the doctrine in a modern court-martial, Corn and VanLandingham maintain.
The Pentagon’s own Military Justice Review Group acknowledges that commanders frequently opt for administrative remedies “in lieu of referral to court-martial,” even in cases that would trigger criminal prosecution in a civilian environment.
The problem with the American system has never been an excess of scrupulousness. It has been the opposite, a long-running tendency toward institutional self-protection, undercharged cases, and evaporating accountability the farther you move up the chain of command.
Put simply, it’s not an ideological rant or an affront to discipline to remind troops to obey the law. It’s the only protection we’ve ever had against the real risks.
Which brings us back to the present moment.
Kelly, Slotkin, and their fellow lawmakers deserve high praise for refreshing the military’s memory of the legal ideal. But the truly hard work falls to the rest of us. We must follow their example and insist that reality finally match the principle—that those who refuse illegal orders (or reject inhumane directives) are protected, and that integrity becomes more than a slogan recited in training.