Bottom Line Up Front. The Principle: No administration is above the law. The military oath is to the Constitution, not to any person. Service members who follow illegal orders can be prosecuted—”following orders” is not a defense.
The Current Danger: When officials claim “every presidential order is legal,” they undermine the constitutional system itself. This is exactly why the Founders required separate oaths to the Constitution and why military law explicitly addresses illegal orders.
Full Infographic available at: https://theopenrecord.org//Special%20Edition/Duty_to_disobey.html
The Duty to Disobey: A Constitutional Requirement
Understanding the Legal Obligation to Refuse Illegal Orders
Section 1: The Legal Framework
Military Law
UCMJ Article 90 – “Any person subject to this chapter who willfully disobeys a lawful command of that person’s superior commissioned officer shall be punished…” [Establishes that unlawful orders exist and need not be obeyed]
UCMJ Article 92 – Establishes the duty to disobey orders that are “patently illegal” or clearly violate the law of war
Military Oath of Enlistment – “I will support and defend the Constitution of the United States against all enemies, foreign and domestic… I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”
See:
10 U.S. Code § 890 (UCMJ Article 90),
10 U.S. Code § 892 (UCMJ Article 92),
U.S. Army – Oath of Enlistment
10 U.S. Code § 890 (UCMJ Article 90),
10 U.S. Code § 892 (UCMJ Article 92),
U.S. Army – Oath of Enlistment
Constitutional Law
Article VI, Clause 2 (Supremacy Clause) – “This Constitution, and the Laws of the United States… shall be the supreme Law of the Land.” [No order can override constitutional protections]
Fifth Amendment – “No person shall be deprived of life, liberty, or property, without due process of law.” [Requires legal proceedings before execution]
Article II, Section 1 (Presidential Oath) – The President swears to “preserve, protect and defend the Constitution of the United States” [The President’s authority derives from the Constitution, not above it]
First Amendment – “Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” [Protects members of Congress from retaliation for exercising free speech]
See:
U.S. Constitution – Article VI,
U.S. Constitution – Fifth Amendment,
U.S. Constitution – Article II,
U.S. Constitution – First Amendment
U.S. Constitution – Article VI,
U.S. Constitution – Fifth Amendment,
U.S. Constitution – Article II,
U.S. Constitution – First Amendment
International Law
Nuremberg Principles (1950) – Established that “following orders” is not a defense for war crimes. Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law.”
Geneva Conventions – Absolute prohibition against torture and cruel, inhuman or degrading treatment of persons in custody
Section 2: Current Controversy (November 2025)
Democratic Lawmakers Remind Troops of Their Constitutional Duty
Six Democratic members of Congress—all military veterans or former intelligence officers—released a video on November 18, 2025, reminding service members of their legal duty:
“This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Our laws are clear. You can refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.”
The lawmakers:
- Sen. Mark Kelly (D-AZ) – Retired Navy Captain, Former NASA Astronaut
- Sen. Elissa Slotkin (D-MI) – Former CIA Analyst
- Rep. Jason Crow (D-CO) – Former Army Ranger
- Rep. Maggie Goodlander (D-NH) – Former Naval Intelligence Officer
- Rep. Chris Deluzio (D-PA) – Former Naval Officer
- Rep. Chrissy Houlahan (D-PA) – Former Air Force Officer
Administration Response:
- President Trump called it “seditious behavior” and stated: “I’m not threatening death, but I think they’re in serious trouble. In the old days, it was death.“
- FBI launched investigation attempting to schedule interviews with all six lawmakers
- Pentagon announced investigation of Sen. Mark Kelly for “possible violations of military law” and threatened to recall him to active duty for court-martial
- Defense Secretary Pete Hegseth called them the “Seditious Six”
Constitutional Issue: Using federal law enforcement (FBI) to intimidate members of Congress for exercising free speech violates the First Amendment and the constitutional principle of separation of powers. The Speech or Debate Clause (Article I, Section 6) protects members of Congress from prosecution for legislative acts, which includes public statements about constitutional duties.
Section 3: Major Historical Examples of Illegal Orders
March 16, 1968 – My Lai Massacre, Vietnam
- Lt. William Calley ordered troops to kill unarmed Vietnamese civilians in the village of My Lai
- 504 civilians murdered, including women, children, and elderly
- Calley was convicted of murder in 1971
- Court ruling: “Following orders” was explicitly rejected as a defense
- Precedent established: Soldiers have a legal duty to refuse orders they know to be illegal
- U.S. Court of Military Appeals (1969): No justification exists to follow orders if “the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal”
1984-1986 – Iran-Contra Affair
- NSC officials (including Lt. Col. Oliver North) ordered arms sales to Iran, violating the arms embargo
- Profits were illegally diverted to fund Contra rebels in Nicaragua, violating the Boland Amendment passed by Congress
- Congress had explicitly prohibited all funding for military operations in Nicaragua—the operations were “clearly illegal”
- Congressional investigation found officials “viewed the law not as setting boundaries for their actions, but raising impediments to their goals”
- 14 officials charged with crimes including conspiracy to defraud the United States, obstruction of Congress, and destruction of documents
- Convictions of North and Poindexter were later overturned on technicalities; President George H.W. Bush pardoned six others
- Defense Secretary Weinberger’s notes recorded that Reagan knew the operations were illegal
2003-2004 – Abu Ghraib Torture, Iraq
- Defense Secretary Donald Rumsfeld authorized “enhanced interrogation techniques”
- Commanders ordered military police to “soften up” detainees and “set physical and mental conditions for favorable interrogation”
- Commanding general issued orders to “manipulate an internee’s emotions and weaknesses”
- Systematic torture included: beatings, sexual humiliation, physical abuse, forced nudity, use of dogs to instill fear, stress positions, sleep deprivation, and death during interrogation
- Taguba Report (U.S. Army investigation): Abuses were “systematic and illegal” and “intentionally perpetrated”
- International Committee of the Red Cross reported most detainees were civilians with no links to armed groups
- 11 soldiers convicted of abuse; command structure largely escaped accountability
- U.N. Committee Against Torture declared many authorized methods violated international law
September-November 2025 – Caribbean Boat Strikes
- 21 strikes conducted, 83+ people killed
- Administration claims boats were carrying drugs and operated by “narcoterrorists”
- No public evidence provided that boats carried drugs or that those killed were gang members
- No charges filed, no trials, no due process whatsoever
- Extrajudicial executions in international waters—people killed based solely on allegations
- Trump administration declared a “non-international armed conflict” to justify treating alleged drug traffickers as enemy combatants
- Legal experts and lawmakers: Rep. Jim Himes (D-CT) labeled strikes “illegal killings”; multiple legal scholars say strikes violate maritime law and human rights conventions
- Relatives of victims dispute they were drug traffickers; Colombia’s president called it “murdering” Colombian citizens
- Constitutional violation: Fifth Amendment requires due process before depriving anyone of life—no evidence, trial, or conviction provided
- Admiral Alvin Holsey (Commander, U.S. Southern Command) raised concerns about the strikes and announced early retirement
Section 4: Why This Matters
The Principle
No administration is above the law. The military oath is to the Constitution, not to any individual person—not even the President. Service members who follow illegal orders can be prosecuted under the UCMJ and international law. “Following orders” is not a defense and has been rejected as such since the Nuremberg trials.
The Current Danger
When government officials claim that “every presidential order is legal” or that questioning orders is “seditious,” they undermine the constitutional system itself. This is precisely why:
- The Founders required separate oaths to the Constitution rather than to a person
- Military law explicitly addresses the duty to disobey illegal orders
- The Fifth Amendment requires due process before execution
- The First Amendment protects members of Congress from retaliation for speech
- The Supremacy Clause makes the Constitution—not presidential decree—the supreme law
The Constitutional Stakes
Using federal law enforcement to intimidate lawmakers for reminding troops of their constitutional duties represents a fundamental threat to democratic governance. If service members cannot distinguish between lawful and unlawful orders—or fear retaliation for refusing illegal orders—the entire system of checks and balances collapses. The Constitution protects us all, but only if those in uniform have the courage and legal protection to uphold it.
