Legal Foundations of Honorable Military Service

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Legal Foundations of Honorable Military Service

The Former JAGs Working Group Perspective

The Nation’s senior military officers are increasingly confronted with orders and decisions that challenge their oath1 to support and defend the Constitution. Most have likely wrestled with what they would do if such orders were to cross their own legal, ethical, and moral redlines. As former judge advocates, it was our responsibility while on active duty to advise on the legal demands of and limits on senior officers’ authority and responsibility. We respectfully offer the following thoughts in the hope that they will prove useful to the current generation of senior leaders.

Introduction

Since September 2025, in addition to the ongoing non-international armed conflict authorized by Congress following the 9/11 terrorist attacks, the United States has engaged in an invasion of Venezuela and initiated an armed conflict against Iran. In January 2026, the Administration threatened to annex Greenland over the objection of our Danish NATO ally. The Administration continues to claim that in summarily striking and sinking vessels suspected of carrying illegal narcotics (with significant loss of life), it engaged in a non-international armed conflict against narco-terrorists who, the facts suggest, are not combatants or civilians directly participating in hostilities and subject to the law of armed conflict; rather, they are suspected criminals who, if captured, are subject to federal law, including Fifth Amendment due process.

Senior officers, such as the Combatant Commanders and the Joint Chiefs of Staff who advise the President and Secretary of Defense, execute national strategy and policy set by civilian leaders. Sitting at the intersection of policy, national strategy, and global military operations, these officers have a duty to advise their civilian superiors in the Pentagon and White House not only on the feasibility, advisability, and military necessity of operations but also on their legality.2

Officers who serve as Combatant Commanders and on the Joint Chiefs of Staff possess specialized knowledge, expertise, and extensive experience that may conflict with the immediate preferences or intentions of their civilian superiors.3 Like all officers, they are also bound by ethical codes and institutional cultures, norms, and principles that help them navigate such conflicts. They know – or should know – that it is their duty to raise not only operational and tactical concerns, but also ethical and legal objections to orders or decisions. They know they are bound to do so, even at the risk of their careers. They know it is their duty to resign or retire rather than facilitate and lead American military personnel in unlawful wars or other military operations.

These are not easy decisions, but at that high level of responsibility and expertise, these senior officers must address and reconcile sometimes competing imperatives:

(1) the necessary presumption that orders are lawful;

(2) the duty to obey only lawful orders and to disobey orders known to be or that are patently unlawful;

(3) the constitutional subordination of the military to civilian authority;

(4) the principle that, so long as legal requirements have been met, “make war” decisions are political in nature, reside with the President and Congress, and are not the responsibility of the military; and

(5) their oath to support and defend the Constitution, a document that makes certain treaties, including the Geneva Conventions, the UN Charter, and the North Atlantic Treaty, part of the “supreme Law of the Land” whose requirements are legally binding.

The tension inherent in these imperatives is most acutely felt by the Joint Chiefs of Staff, the Combatant Commanders and their senior staffs. It does not simplify matters that the law of military obedience4 and the norms of civil-military relations at the strategic level,5 which ought to reconcile the five imperatives, are complex. Nonetheless, it is their responsibility to understand, balance, and apply these competing principles, even if doing so requires questioning, pushing back, objecting, retiring or resigning, and facing adverse professional and personal consequences.6 Fidelity to the law is not a lofty abstraction; it is essential to the vital role a non- partisan military plays in a healthy democratic society.

The principles that follow are offered to prompt discussion regarding the legal obligations7 of all military officers to dissent from, object to, resign because of, or disobey an order from the President or Secretary of Defense that he or she reasonably and in good faith believes is unlawful.8

The Legal Foundations of Honorable Military Service

1. Every officer’s inviolable duty is to the Constitution and every officer is bound by the rule of law.

   • All officers swear an oath to “support and defend the Constitution of the United States against all enemies foreign and domestic.”9 After their initial oath upon commissioning, officers repeat the oath at every subsequent promotion. The U.S. military officer’s oath places fidelity to the Constitution above loyalty to any individual office holder, including the commander-in-chief. It reflects an apolitical officer corps tradition that is as old as the Republic.

   • While officers may recommend or object to proposed military actions on policy or strategy grounds, they are bound to accept the final decisions of their civilian superiors. In contrast, officers must refuse unlawful orders that call for the commission of an offense, regardless of the basis or wisdom of such orders in either policy or strategy.

2. The Constitution, federal statutes, and treaties to which the United States is a party comprise the “supreme Law of the Land” to which the President and everyone in the military chain of command are subject.10

   • The President is bound by the law. Although he has considerable inherent authority as Commander-in-Chief to protect the national security of the United States, that authority is not unlimited.

   • The President’s engagement of U.S. forces in an armed attack or sustained conflict requires a legal basis in both U.S. domestic and international law.

• The President’s decision to use military force is not solely a matter of domestic politics beyond the scope of professional military responsibility.11 Assessing the lawfulness of a decision to use force is intrinsic to and required by an officer’s oath of office.

3. Civilian control of the military is mandated by the Constitution; however, no one can require the military to engage in unlawful conduct.

   • Lawful civilian control is not a matter of who wins a national election. No person, no matter the office, is above the law.12 Nor may anyone insist that a member of the armed forces commit a crime or violate their oath to support and defend the Constitution.

   • The military law of obedience to orders is premised on the principle that the only orders that must be obeyed are lawful orders from those with the authority to issue them.13

   • The Manual for Courts-Martial codifies this principle in a strong presumption that those orders are lawful.14 When in genuine doubt about the lawfulness of an order, military personnel should seek clarification from its originator and, if practicable, consult a lawyer with relevant experience and subject matter expertise. Ultimately, though, the decision to follow or disobey any order resides with its recipients and they disobey—or obey—at their own peril.

4. Determining the legality of an order to conduct an armed attack or otherwise engage in armed conflict is not always a simple matter.

   The Constitution allocates war powers between the President and Congress. Article I makes Congress and the President collaborators in decisions of war and peace. While Presidents have considerable discretion to order military operations and manage warfighting as Commander-in-Chief,15 Congress authorizes it,16 funds it,17 establishes the code of justice to discipline those who fight in it,18 and the Senate confirms the certain civilian and military leaders who will manage it under the chain of command headed by the President.19 By design, these officers lead a non-partisan military, subject to the lawful civilian control of both Congress and the President.

   As a matter of domestic law, there is broad consensus that the President may order the military into hostilities without Congress’s prior approval if doing so is necessary to repel an invasion or to respond to an attack on the U.S., its territory, or its military.20

   • The Executive Branch has long held that a military operation of limited “nature, scope, and duration” in support of an “important national interest” is also within the unilateral discretion of the President.21 This view has neither been overridden by Congress (although it may conflict with the War Powers Resolution)22 nor embraced or rejected by federal courts.

   • What constitutes congressional “authorization” has not been fully resolved by the courts.23 There is also no consensus on whether Congress’s silence (e.g., failing to defund an operation or failing to vote against stopping hostilities already underway) constitutes congressional authorization.

   • Every President since Richard Nixon has objected to parts of the War Powers Resolution on constitutional grounds;24 however, the courts have yet to opine on its constitutionality in whole or part, and Presidents continue to act “consistently” only with respect to its notification and consultation requirements.

   • However, when a President initiates a war that is (1) not reasonably, at its inception, anticipated by the Executive Branch to be limited in nature, scope, and duration and (2) not in response to an armed attack or invasion without first receiving implicit or explicit congressional authorization or a declaration of war, that President violates the Constitution’s separation of powers, his specific constitutional duty to faithfully execute the law,25 and his singular oath to “preserve, protect, and defend the Constitution” to the “best of [his] ability.”26

   • o Any order, direction, command, dictate, instruction, mandate, or any other demand, oral or written, to initiate such a war without domestic legal authority is an unlawful order because it is “beyond the authority of the person issuing it.”27

     o Whether the President is held politically or legally accountable under U.S. law for that violation is irrelevant to whether the entry into war exceeds his lawful authority.

     Under international law, when a President initiates any armed conflict without first receiving authorization from the United Nations Security Council28 or establishing a legitimate claim of self-defense against an ongoing or imminent attack,29 he violates the United Nations Charter, a treaty that has been part of the U.S. “supreme Law of the Land” since 1945.30

     • In previous administrations, the Executive Branch’s policy has been to consider several factors when determining if an attack is “imminent” sufficient to justify the use of force in self-defense. These factors include the “nature and immediacy of the threat; the probability of an attack; whether the anticipated attack is part of a concerted pattern of continuing armed activity; the likely scale of the attack and the injury, loss, or damage likely to result therefrom in the absence of mitigating action; and the likelihood that there will be other opportunities to undertake effective action in self-defense that may be expected to cause less serious collateral injury, loss, or damage.”31

     • Any order, direction, command, dictate, instruction, mandate, or any other demand, oral or written, to initiate such a war without a basis in international legal authority is an unlawful order because it is “beyond the authority of the person issuing it.”32

     • • Whether the President is held accountable under international law for that violation is irrelevant to whether or not the entry into war exceeds his lawful authority.

       5. Determining the legality of the domestic use of the U.S. military is not always a simple matter, but whether an operation is to be conducted within or outside the country, senior officers are equally bound by their duty to protect and defend the Constitution and by the rule of law.

          • Respecting the constitutional rights and civil liberties of Americans and following the law governing the domestic use of military force is a duty of military officers

          • Military members have a legal duty to disobey patently unlawful orders, such as to employ lethal force against peaceful civilian protestors in American cities. While the lawfulness of orders to engage in armed conflict involve far greater legal complexity than orders to kill peaceful American protestors, senior officers have an ethical and legal duty to ensure the legality of all orders they receive from their civilian chain of command. America demands no less.

       6. Federal law requires senior officers to adhere to the requirement for “Exemplary Conduct,” the oath of office, and the military criminal code.

          • Federal statutes applicable to each Branch of the military require commanding officers and others in authority in the Armed Forces “to show in themselves a good example of virtue, honor, patriotism, and subordination.”33

          • The military officer’s oath reads: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”34

            Retired Lieutenant General Mark Hertling explains:

            Officers give orders, evaluate legality, and act as the constitutional circuit breakers the Founders intended. They are expected—by law, by professional ethics, and by centuries of tradition—to exercise independent judgment when presented with a questionable directive. Officers are duty-bound to refuse an unlawful order. It is not optional. It is not situational. It is their job.35

          • Disobeying an unlawful order is a fundamental professional responsibility and not a criminal act. Military law establishes a legal duty to disobey all patently unlawful orders, such as an order to commit a war crime.

          • The Uniform Code of Military Justice prohibits, among many other things, disobeying a lawful order,36 mutiny and sedition,37 conduct “prejudicial to good order and discipline,”38 conduct “of a nature to bring discredit upon the Armed Forces,”39 and “conduct unbecoming an officer.”40

          • Honor and personal integrity are as much standards of the military professional as competence and diligence.

          • According to Joint doctrine, “US military service is based on values that US military experience has proven to be vital for operational success. These values adhere to the most idealistic societal norms, are common to all the Services, and represent the essence of military professionalism. Duty, honor, courage, integrity, and selfless service are the calling cards of the profession of arms.”41

          • Joint doctrine defines “honor” as the “code of behavior that defines the ethical fulfillment of our duties. It is that quality that guides us to exemplify the ultimate in ethical and moral behavior; never to lie, cheat, or steal; to abide by an uncompromising code of integrity; to respect human dignity; to have respect and concern for each other. The quality of maturity; dedication, trust, and dependability that commits members of the profession of arms to act responsibly; to be accountable for actions; to fulfill obligations; and to hold others accountable for their actions.”

          • Obeying what an officer knows to be an unlawful order is fundamentally contrary to his or her oath to the Constitution even if an argument can be made for doing so.

          • Improper and illegitimate rationalizations include any of the following:

          • Believing that an order from the President or Secretary of Defense is irrefutably lawful;

          • Believing the ends justify the means;

          • Believing that criminal accountability for obeying the order is unlikely;

          • Believing that objecting to or disobeying the order will have personal or professional

            repercussions;

          • Concern that because someone will ultimately follow the order, remaining on duty will

            mitigate its consequences;

          • Concern that an officer’s objections or resignation, if made public, would undermine the

            sense of duty and discipline among his or her subordinates.

            To avoid engaging in a criminal act, uphold one’s oath to the Constitution, and maintain honor and personal integrity in the face of what a senior officer reasonably believes to be an unlawful order from the President, Secretary of Defense, or a military superior, an officer should consider:

          • First, raising concerns about the lawfulness of a presidential or secretarial order, dictate, command, or directive. Doing so is neither criminal, disloyal, nor unprofessional.

          • Second, objecting to a presidential or secretarial order, dictate, command, or directive on reasonable grounds that it is unlawful. Doing so is neither criminal, disloyal, nor unprofessional.

          • Third, if the order is not rescinded despite objections, requesting a new assignment or requesting permission to retire or resign one’s position. Although historically rare in the U.S. armed forces, such an attempt to persuade civilian authority to reconsider an unlawful order, avoid carrying out an unlawful order, protest that unlawful order, or retard the execution of an unlawful order is neither criminal, disloyal, nor unprofessional.

          • Fourth, as a last resort, disobeying an unlawful order. Disobeying an unlawful order is neither criminal under Articles 90 or 92, “conduct unbecoming” under Article 133, nor “prejudicial to good order and discipline” or “conduct of nature to bring discredit upon the armed forces” under Article 134 of the UCMJ. However, orders are presumed lawful42 and disobeying an order carries the risk of a court-martial at which the officer would have to persuade the court that the order was unlawful.

          • The responses available in the face of receiving a suspect order should, of course, be considered according to the basis for the objection and the degree of certainty that the order is illegal. Refusal should be considered only after the first three options are exhausted, and even then only if the officer, having consulted competent counsel, is convinced that the order is patently illegal.

          • • For example, objections to orders based, say, on Presidential usurpation of Congressional authority to declare war or a failure on the part of the United States to seek advance UN authority prior to military action are complicated enough that they should rarely lead to an officer disobeying an otherwise unobjectionable order. Such orders might legitimately be questioned and objected to and might be grounds for resignation or retirement. Conversely, orders that substantively violate the law, international (jus in bello or international humanitarian law violations) or domestic, will more likely demand disobedience. Again, affected officers are strongly advised to consult competent counsel.

            It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.43