Can Military Members Refuse Orders? The Law Is More Complex Than You Think

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A grand jury—a group of ordinary citizens—said no. While grand juries do typically approve most prosecutorial requests, they retain the legal authority to decline indictments when they find insufficient evidence or believe charges are inappropriate.

The old legal saying goes that a prosecutor could get a grand jury to “indict a ham sandwich.” Yet here were ordinary citizens, after hearing the government’s evidence, determining that reminding soldiers about military law didn’t constitute a federal crime.

The lawmakers—all military veterans or intelligence professionals—had simply stated what military law already says: that service members can, and sometimes must, refuse orders that violate the Constitution or federal law.

The law governing military obedience is considerably more complex than “follow orders.” The gap between what military law requires and what many Americans assume it requires matters now more than it has in decades.

What the Video Said

The lawmakers were Senators Mark Kelly and Elissa Slotkin, along with Representatives Jason Crow, Chris Deluzio, Chrissy Houlahan, and Maggie Goodlander. Kelly, a former Navy captain and astronaut, delivered the core message: “Our laws are clear. You can refuse illegal orders.”

They didn’t name Trump. They didn’t specify which orders they considered illegal. But the context was obvious to anyone paying attention.

The lawmakers weren’t stating a fringe legal theory. They were restating basic principles of American military law that date back to the Nuremberg trials, where “I was following orders” was rejected as a defense to war crimes. The Manual for Courts-Martial—the official guide military lawyers use—explicitly states that orders are normally assumed to be legal, but this doesn’t apply to obviously illegal ones, such as those that direct commission of a crime.

The Sedition Charge That Wasn’t

Federal prosecutors tried to charge the lawmakers under a federal law (Section 2387 of Title 18), which makes it a crime to “interfere with, impair, or influence the loyalty, morale, or discipline of the military” by counseling “insubordination, disloyalty, mutiny, or refusal of duty.” The potential penalty: ten years in federal prison.

Prosecutors needed to prove that reminding military members of their existing legal rights somehow constituted encouraging them to break the law. It’s a bit like charging a defense attorney with obstruction of justice for telling a client they have the right to remain silent.

The First Amendment presented another problem. Under Brandenburg v. Ohio, the government can only ban speech that directly incites immediate illegal action. The lawmakers’ video didn’t direct anyone to immediately disobey specific orders. It provided general legal information about military law.

The grand jury apparently agreed. After hearing the government’s evidence, they declined to indict.

Senator Slotkin responded that “a grand jury of anonymous American citizens” had “upheld the rule of law.” Representative Chris Deluzio declared he “would not be intimidated for a single second” by the Trump administration’s attempt to prosecute him.

What Military Law Requires

The Uniform Code of Military Justice—the federal law governing military discipline—creates a legal framework that’s more nuanced than most people realize. Military members have a duty to obey lawful orders. Military law says deliberately refusing to follow a lawful order is potentially punishable by death in time of war. An armed force can’t function if service members simply ignore orders they disagree with.

But that duty has limits.

The Manual for Courts-Martial specifies that an order is only lawful if it doesn’t conflict with the Constitution, federal law, or lawful superior orders. Orders that direct commission of a crime are “obviously illegal” and carry no presumption of lawfulness.

When Lieutenant William Calley was tried in military court for his role in the My Lai massacre—where his unit killed hundreds of unarmed Vietnamese civilians—the military judge instructed that “any order to kill such people would be, as a matter of law, an illegal order.” Calley’s defense that he was following his commander’s orders was rejected.

The Nuremberg principles established after World War II made this explicit: “following orders” is not a valid defense to war crimes. American military law adopted these principles. Service members are expected to refuse orders to execute prisoners, torture detainees, intentionally target civilians, or commit other war crimes.

Military doctrine specifies that an order is only clearly unlawful when “a reasonable person would recognize the wrongfulness” of the order. An order to execute a surrendering prisoner is obviously unlawful. An order to participate in an operation that some legal scholars think violates a law limiting the President’s power to wage war without Congress exists in a gray zone where military members are expected to obey while raising concerns through proper channels.

The Gray Zone Where Service Members Operate

The Trump administration’s strikes against alleged drug-trafficking vessels created exactly the kind of legal ambiguity that makes determining lawfulness difficult in real time. In one September 2 strike, a boat was hit and partially disabled, leaving two survivors who climbed back aboard and allegedly attempted to salvage drug cargo. A second strike was then conducted, killing these survivors.

Multiple members of Congress questioned whether that second strike violated international maritime law protecting persons in distress and international laws protecting people in war. Were those survivors still legitimate targets? Or were they shipwreck survivors entitled to protection under the laws of war?

A pilot ordered to conduct that second strike faced a genuine legal question about whether the order violated the laws of armed conflict. The Army’s official guide for military lawyers provides guidance: “In rare cases when an order seems unlawful, do not carry it out right away, but do not ignore it either. Instead, immediately and respectfully seek clarification of that order.”

But what happens when seeking clarification isn’t practical? When the order comes during an active operation with seconds to decide? When military lawyers aren’t immediately available?

Service members are supposed to handle this terrain while knowing that refusing an order that’s later determined to be lawful could result in court-martial, a dishonorable discharge, and imprisonment. Following an order that’s later determined to be unlawful could result in prosecution for war crimes.

The six lawmakers’ video was addressing exactly this situation. They were telling military members: you have legal rights here. You’re not required to blindly obey every order. If you genuinely believe an order is unlawful, you can refuse it.

The Trump administration’s response—criminal prosecution and threats of the death penalty—sent a different message: don’t even think about it.

The Federal Judge Who Said No

While the grand jury was considering criminal charges, Senator Mark Kelly faced a separate threat. Defense Secretary Pete Hegseth officially disciplined Kelly for participating in the video, claiming his speech “undermined the chain of command” and constituted “reckless misconduct.” The Pentagon announced it would conduct a proceeding that could take away Kelly’s military rank and reduce his retirement pay.

Kelly was the only one of the six lawmakers still receiving retirement pay, making him the only one potentially subject to military discipline. He sued in federal court, arguing the Pentagon’s action violated his First Amendment rights.

On February 12, 2026—one day after the grand jury declined to indict—U.S. District Judge Richard Leon issued a court order temporarily blocking the Pentagon’s action. Leon, appointed by Republican President George W. Bush, wrote that the Pentagon had “violated Senator Kelly’s First Amendment rights and threatened the constitutional rights of millions of military retirees.”

At oral arguments, Leon grilled government attorneys: “You’re asking me to do something that the Supreme Court has never done. That’s a bit of a stretch, is it not?”

The judge’s written opinion emphasized that while active-duty personnel have fewer free speech protections because of the need for military discipline, “no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military.”

Leon concluded Kelly would likely win his First Amendment case and that Kelly would suffer damage that money couldn’t fix if the Pentagon proceeded with stripping his rank while litigation was pending.

A grand jury and a federal judge had rejected the Trump administration’s attempts to punish speech about military law.

How This Affects Service Members

Formally, military law recognizes that service members have a duty to refuse unlawful orders. The Manual for Courts-Martial says so. The Army’s official guide for military lawyers says so. International law principles adopted after Nuremberg require it.

But when six members of Congress—all veterans or intelligence professionals—reminded service members of this legal right, the administration tried to prosecute them criminally, threatened the death penalty, and moved to punish them administratively. Defense Secretary Hegseth publicly criticized military lawyers and fired the top military lawyers at the Air Force and Army.

What message does this send to a young lieutenant or sergeant who faces a potentially unlawful order?

The formal message: you have a duty to refuse clearly unlawful orders, particularly those that would constitute war crimes. Seek legal advice when orders seem questionable. The legal system will protect you if you act in good faith.

The practical message: a sitting U.S. Senator and former Navy captain was nearly stripped of his rank and retirement pay for reminding you of your legal rights. Six members of Congress faced federal prosecution for making a video about military law. Maybe follow whatever orders you receive and hope for the best.

Service members who might otherwise seek legal guidance about questionable orders may rationally conclude that raising concerns is too dangerous. Better to obey and hope the order was lawful than to refuse and face court-martial—or worse, become the target of a politically motivated prosecution.

The Pattern of Grand Jury Resistance

The grand jury’s refusal to indict the six lawmakers wasn’t an isolated incident. Recent months had witnessed an unusual pattern of grand juries declining to indict in Washington D.C. and other federal districts, particularly in cases brought by Trump administration prosecutors.

In D.C., grand juries rejected prosecutions three separate times against a protester accused of assaulting federal officers. They repeatedly refused to indict a defendant in an allegedly politically motivated prosecution. They declined to indict a former DOJ employee charged with assault for allegedly throwing food at a federal officer. A grand jury even declined to indict former FBI Director James Comey on one of three charges the administration sought.

Grand juries had historically been institutions that went through the motions, automatically approving prosecutors’ decisions with such reliability that the “ham sandwich” saying became legal folklore. Yet recent years had seen grand juries asserting greater independence, particularly in politically sensitive cases where prosecutors appeared to be pursuing overtly political objectives.

Legal scholars noted that these instances of grand jury independence aligned with the institution’s historical role, dating back to English constitutional history and the American founding era, as “a protection between ordinary citizens and prosecutors abusing their power.”

The grand jury that declined to indict the six lawmakers was exercising exactly this function. Prosecutors presented their evidence. The jurors—ordinary citizens—evaluated whether probable cause existed to believe the defendants had committed a federal crime. They concluded it didn’t.

Why This Matters

The President is Commander-in-Chief. Civilian control of the military is a foundational principle of American government. But civilian control doesn’t mean unlimited control. Even the President’s authority over the military is bounded by the Constitution, federal law, and international law.

When civilian authorities issue orders that violate these legal boundaries, the duty to obey lawful orders means you must refuse unlawful ones. This is intentional, designed to prevent exactly the kind of abuses that led to the Nuremberg trials.

The Trump administration’s attempt to criminalize speech reminding military members of these legal boundaries suggested a dangerous reversal: that civilian political authorities could make their orders effectively unreviewable by criminalizing any discussion of the legal limits on those orders.

If members of Congress can’t remind personnel of their legal rights without facing federal prosecution, who can? If a sitting U.S. Senator and former Navy captain can be threatened with loss of rank and retirement pay for making a video about military law, what message does that send to junior officers and enlisted personnel who might question whether an order is lawful?

The grand jury’s refusal to indict and Judge Leon’s injunction blocking Kelly’s punishment represented institutional resistance to this dynamic. Leon was appointed by a Republican president, and grand juries are anonymous citizens, not political actors. They were decisions by ordinary people and a federal judge that the government’s legal theory was wrong.

The Unresolved Questions

The grand jury’s decision to decline indictment doesn’t resolve the underlying legal and constitutional questions this controversy raised.

When exactly does an order become unlawful enough that a service member must refuse it? The “reasonable person” standard provides some guidance, but reasonable people can disagree about complex questions of international law, constitutional authority, and military necessity.

What happens when service members face orders in the gray zone—operations that might violate law but where the legal analysis is genuinely uncertain? Are they expected to become amateur lawyers, figuring out the War Powers Resolution and international laws protecting people in war in real time? Or are they expected to obey and trust that their superiors have made appropriate legal determinations?

How should service members seek legal guidance about potentially unlawful orders when military lawyers may themselves be subject to political pressure? When the Defense Secretary has fired top judge advocates general and publicly criticized military lawyers, can junior officers and enlisted personnel trust that they’ll receive independent legal advice?

What happens when political authorities attempt to punish speech about military law itself? How can people debate military policy if discussing military law is treated as sedition?

What the Law Says, Versus What People Assume

Many Americans assume obedience is absolute—that service members must follow any order from superior officers, that questioning orders is insubordination, that “I was following orders” is a valid defense to any misconduct. Popular culture reinforces this understanding.

But military law itself says something different. Orders are presumed lawful, yes. Service members who refuse lawful orders face serious consequences, yes. But the presumption of lawfulness doesn’t extend to obviously illegal orders. Service members have a duty to refuse orders that direct commission of crimes, particularly war crimes.

This legal framework exists to prevent forces from becoming instruments of atrocity. It ensures that service members remain accountable to law, not simply to superior officers. It recognizes that even in military organizations, there are legal and moral boundaries that cannot be crossed.

The six lawmakers’ video was attempting to close the gap between popular misunderstanding and legal reality. They were telling military members: you have legal rights. You’re not required to blindly obey every order. If an order is clearly unlawful, you can and should refuse it.

That this message triggered criminal prosecution and threats of the death penalty suggests how wide the gap between law and practice has become.

The grand jury that declined to indict apparently understood that reminding people of their legal rights isn’t sedition. Judge Leon understood that punishing speech about military law violates the First Amendment. Whether these institutional guardrails can continue to function in an environment where political authorities are willing to use federal law enforcement as a political weapon against speech they dislike remains an open question.

For now, the law still says what it says: military members can refuse unlawful orders. And you can still say so without going to federal prison.

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