DEM. LAWMAKERS URGE MILITARY TO REFUSE ILLEGAL ORDERS: WHAT COUNTS AS UNLAWFUL?
In a November 18th video posted on X, six Democratic members of Congress who previously served in the military or intelligence community urged service members and intelligence officials to disobey illegal orders that might be issued by President Donald Trump’s administration.
The six are Senators Elissa Slotkin (MI), Senator Mark Kelly (AZ), and Representatives Jason Crow (CO), Maggie Goodlander (NH), Chris Deluzio (PA), and Chrissy Houlahan (PA). The video drew an immediate and threatening response from Trump.
Group Urges Military to Refuse Illegal Orders
The group said the “threats to our Constitution” are coming “from right here at home,” and repeatedly urged the military and intelligence community to “refuse illegal orders.”
“No one has to carry out orders that violate the law or our Constitution,” the group said. “Know that we have your back… don’t give up the ship.”
Trump Issues a Response
Less than two days after the video was posted, Trump called the video “Seditious behavior at the highest level,” and, in another post, claimed that such behavior is “punishable by death.”
One day later, Trump turned down the heat in an interview with Fox News, saying,
"I'm not threatening death, but I think they're in serious trouble."
"If you look at sedition," Trump continued, "that's a very strong form of being a traitor. It's a terrible thing to say, I must tell you."
Trump also suggested the US Defense Secretary and Deputy Attorney General were looking into the matter.
However, one day later, Trump turned up the heat again, calling for the democratic lawmakers to be jailed. He also shared other social media posts criticizing the lawmakers on Sunday afternoon. In one Truth Social post, Trump shared a post referring to the Democratic Party as a “Domestic Terrorist party.” Another post Trump shared appeared to call the lawmakers “traitorous communists.”
The Military Oath
Both enlisted personnel and officers in the military swear an oath to support and defend the US Constitution, though their oaths differ in focus.
The Oath of Enlistment requires enlisted personnel to swear to obey the orders of the President and their superior officers. In contrast, the Oath of Office, taken by officers, emphasizes supporting and defending the Constitution and faithfully discharging the duties of their appointed office, omitting the specific promise to obey superiors.
Thus, while enlisted personnel promise obedience, officers' oaths underscore their responsibility for their command duties.
What Is an Illegal Order?
Under Article 92 of the Uniform Code of Military Justice (UCMJ), service members are legally obligated to obey only lawful orders. If a service member follows an unlawful order, they could face prosecution.
Legal precedent establishes that merely receiving an order does not constitute a valid defense; this concept is often referred to as the "Nuremberg defense," which was unsuccessfully invoked by senior members of Adolph Hitler's leadership during their post-World War II legal proceedings.
So, what is an illegal order? An illegal order is a directive that violates a law, regulation, or the Constitution, and the recipient is obligated to disobey it.
Examples include orders to commit a crime, engage in unethical acts, or violate human rights standards. In a military context, this is governed by the UCMJ, where service members are required to disobey patently illegal orders, such as those directing war crimes or targeting civilians.
Where Are the Disagreements?
At the crux of the current disagreement between Democratic lawmakers and the Trump administration has been the targeting of suspected drug-trafficking vessels in the Caribbean Sea and the Pacific Ocean off the coast of Mexico.
These attacks have killed 83 people since September. The Democratic lawmakers say these attacks are in violation of international law and the Constitution. Therefore, the attacks are illegal.
The Trump administration counters by saying the cartels behind the drug trafficking are terrorists and, therefore, the attacks are legal. The Justice Department’s Office of Legal Counsel (OLC) has issued an opinion to legally justify the US military’s strikes against boats allegedly carrying drugs.
The OLC’s opinion includes a list of 24 different cartels and criminal organizations based around Latin America, and it says the administration is authorized to target them. In their opinion, the one subsequently applied by the DoD, the attacks are legal.
In addition, Democratic lawmakers have repeatedly stated their concerns about the legality of the deployment and federalization of National Guard troops without a request from the receiving state’s governor. The Trump administration is fighting multiple court cases over its use of troops in American cities, raising legal questions about how the military can be used on US soil.
Democratic Lawmakers Not Satisfied
Some lawmakers who have been briefed by the Pentagon about the operation have said that military officials have acknowledged not knowing the individual identities of those they are targeting before killing them.
Instead, the officials said they need only establish that those on board the vessels are affiliated with cartels, per the OLC’s opinion.
However, some lawyers inside the Pentagon have raised legal concerns about the US military strikes, CNN has reported.
Military Lawyers Absent
Congressional briefings on the operation have been noticeably lacking military lawyers, according to lawmakers. This follows Defense Secretary Pete Hegseth's earlier action this year of firing the top uniformed lawyers for both the Army and Air Force.
Hegseth justified the firings by telling reporters that he considered them to be potential “roadblocks to orders that are given by a commander in chief.”
Despite submitting numerous requests, key lawmakers have yet to receive a single briefing from the intelligence community regarding its involvement in the boat strikes. The Trump administration has, however, publicly stated that intelligence identified those killed as known drug traffickers.
The Effect on Military Members
When military members receive an illegal order, they face a difficult dilemma. They are conditioned to obey and lack training in legal specifics, yet following a "manifestly unlawful" order can lead to prosecution. This lack of clear guidance and the difficulty for troops to recognize the threshold of illegality creates confusion in the ranks.
The problem also extends to mission success. When personnel must decide if an order is lawful and potentially defy it while others follow, the result could be mission failure. Some analysts fear that troops are ill-equipped to make this critical distinction, highlighting that troops themselves are harmed when given such orders.
Suggested reads:
National Security Analyst
BY GEORGE RIEBLING
Air Force Veteran
George Riebling is a retired USAF Colonel with 26 years of distinguished service as an Air Battle Manager, including operational assignments across five command and control weapon systems. He holds a Bachelor of Journalism, Radio & Television from the University of Missouri. Following his military c...
Credentials
- Retired USAF Colonel, 26 Years Service
- Former NATO Senior Executive (10 years)
- Boeing Strategy and Business Development (2 years)
- Operational experience across 5 Command and Control weapon systems
