When “Illegal Orders” Meet the Real Chain of Command
I have been getting lit up on LinkedIn, Facebook, and everywhere else for my take on the now famous video of six Democratic members of Congress telling the military that they can and must refuse illegal orders. Let me be clear. The problem is not that they mentioned unlawful orders. Every recruit hears about manifestly unlawful orders. The problem is the ambiguity. They never tell us who they are talking to. Is the message aimed at a private in the National Guard, a combatant commander at SOUTHCOM, or senior civilians at the Pentagon? That matters, because each level carries a very different legal responsibility in our system.
Inside the military, we draw a sharp line between manifestly unlawful orders and everything else. The bright line is easy to explain. You do not shoot unarmed civilians. You do not fire on enemy troops trying to surrender. You do not torture prisoners. You do not bomb churches and cemeteries. Those are the Mylai, Abu Ghraib, Nuremberg type examples. They are rare and ugly, and every Soldier, Sailor, Airman, Marine, and Guardian is trained to recognize them. That is where the individual has both the right and the obligation to refuse.
Everything else lives in a different universe. Questions about just war, deployment authorities, maritime operations like the Venezuela boat strikes, or the use of National Guard forces in cities are not adjudicated by a lieutenant and a platoon. They are worked through by JAGs, war planners, combatant commanders, and the courts. When I was an officer, my oath shifted. As an enlisted Soldier I swore to obey the President and the officers appointed over me. As an officer I swore to support and defend the Constitution. My job was to make sure the orders I passed down were lawful. I was the circuit breaker, not the private on the line.
That is why this video bothers me. Whether the senators meant to or not, they turned the individual service member into a kind of constitutional referee. At the same time, Trump’s response that their comments were “seditious” and “punishable by death” poured gasoline on the fire. The ambiguity of the video is bad. Trump’s sedition rhetoric is worse. Both moves drag the military into a political fight that should be settled at the level of law, policy, and senior leadership, not at the level of a petty officer flying a drone or a guardsman standing a line in an American city.
So I keep coming back to one simple question. When people talk about Trump and “illegal orders,” what exactly do they think a service member is about to be told to do? If the fear is that someone will tweet “shoot protesters,” that would be unlawful, but it would also run headlong into every guardrail in the system before it reached a young Soldier. If you have a specific scenario in mind, I genuinely want to hear it. As I say in the video, I have written a lot about this on Substack. Go through it and tell me where you think I am wrong, because clarity in this space is not a luxury. It is part of how we keep both the military and the Constitution intact.
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