It's Not "Sedition" or "Treason" to Repeat Established Military Law
Soldiers have a duty to refuse illegal orders
Last week, a group of Democrats released a video—a public service announcement, if you will—in which they encouraged members of the military not to follow illegal orders. Appearing in the video are Sen. Elissa Slotkin (D-MI), Sen. Mark Kelly (D-AZ), Rep. Jason Crow (D-CO), Rep. Chris Deluzio (D-PA), Rep. Maggie Goodlander (D-NH), and Rep. Chrissy Houlahan (D-PA). Each member in the video has experience in the military or intelligence. The Department of Defense is now investigating Kelly and could be recalled to face a court-martial.1
The White House and congressional Republicans immediately criticized the video. Trump’s reaction to the video was as revealing as it was incendiary. Instead of acknowledging the uncontroversial legal premise—that service members have a duty to refuse illegal commands—Trump labeled the video “seditious behavior” and said it was “punishable by death,” even amplifying fringe posts calling for the lawmakers to be hanged.
What has been lost in the political spectacle is that the message in the video isn’t some radical innovation—it is the bedrock of American military law. A soldier’s obligation to obey only lawful orders is older than the Uniform Code of Military Justice (UCMJ) and reinforced by decades of case law, directives from the Department of Defense, and international obligations the United States has voluntarily assumed. To suggest that reminding service members of this duty is “sedition” turns reality inside out. Under both the First Amendment and the UCMJ, it is never a crime to accurately describe a servicemember’s legal obligations. Recasting a foundational rule of constitutional governance as rebellion is not just legally incoherent—it is profoundly dangerous.
The notion put forward by a soldier that he or she is “just following orders” is not a valid defense when the orders are illegal. This has been a principle of military law since at least the Nuremberg trials, in which Nazis were tried for their war crimes. It shouldn’t be controversial. Under military law, service members are obligated to obey only lawful orders, and the definition of “lawful” is far narrower than many assume. The Uniform Code of Military Justice (UCMJ) refers—across Articles 90, 91, and 92—to “lawful” orders. The inference is that an order is binding only if it complies with the Constitution and federal statutes. The Manual for Courts-Martial (MCM) reinforces this standard. “An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate,” the MCM explains.2 “This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”
Department of Defense Directive 2311.01 explicitly codifies this duty, mandating adherence to the law of war and refusal of unlawful actions.3 Courts have weighed in on this issue. The most notable case is United States v. Calley, a criminal case involving “the premeditated murder of 22 infants, children, women, and old men, and of assault with intent to murder a child of about 2 years of age.” Although more than two dozen soldiers were charged in this March 1968 war crime—known as the My Lai massacre—Lt. William Calley was the only one convicted.
Without getting into a substantial amount of detail, Calley claimed that “he had received orders by radio directing him to dispose of the Vietnamese and get on to other duties during the day of March 16 while he was in My Lai.” The orders were disputed at trial, but the U.S. Court of Appeals for the Fifth Circuit dismissed what controversy existed, explaining, “The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense.”
Calley is a rather extreme example. There are other cases where military courts have echoed the principle. For example, in a 2006 case, United States v. Kisala, the U.S. Court of Appeals for the Armed Forces used the exact quote from the MCM just a few paragraphs above. Granted, the burden of proof of illegality falls to the soldier.
Is it a crime, sedition, or treason for anyone to point out that service members have a responsibility to refuse unlawful orders? Absolutely not. Regardless of whether the person pointing this out has served in the Armed Forces or not, this is well-documented military law. It’s also protected speech under the First Amendment. Telling the truth about military law has never been sedition. It’s constitutional speech, and it’s a safeguard against the very abuses the law of armed conflict was written to prevent.4
The expectation is that any court-martial of Kelly won’t go far.
See Sec. 16(c)(i) on p. 334 of the PDF.
See subsection 1.4 on p. 2 of the document (p. 3 of the PDF).
Honestly, I’m tired of defending basic decency and common sense. I mean, this is the world we live in, and it’s frustrating to see the White House claim that every order Trump issues is “legal.” Former Secretary of Defense Mark Esper said that Trump wanted to shoot protestors in Lafayette Park (across from the White House). There’s no way that shooting at defenseless people who were simply exercising their First Amendment right would’ve been legal.