Why It’s Illegal for Soldiers to Follow Illegal Orders
Senator Mark Kelly, Pete Hegseth, and the truth about military obedience
There is a very common myth about the military. You see it in movies all the time.
The myth is that a soldier is a machine—a robot that has to do whatever a superior officer tells them, no questions asked.
The idea is that if an officer gives an order, it doesn’t matter whether it’s wrong, immoral, or illegal. The soldier has to obey.
That idea is completely false. And right now, it is at the center of a political firestorm.
The Hegseth–Kelly showdown
On Monday, the Department of Defense announced it is opening an investigation into Senator Mark Kelly.
Defense Secretary Pete Hegseth said Kelly is being reviewed for “serious allegations of misconduct” after the Senator appeared in a video telling troops they have a duty to refuse illegal orders.
Because Kelly is a retired Navy Captain, he is still technically subject to the Uniform Code of Military Justice. Hegseth made it clear: Kelly could be recalled to active duty to face a court-martial.
Hegseth called Kelly’s statement “reckless” and said it undermines “good order and discipline.”
But let’s look at what the law actually says.
Mark Kelly didn’t invent this rule or say anything illegal, seditious, or treasonous. He was quoting the foundation of American military law.
In the U.S. military, blind obedience can be a crime
Here is the simple truth: A soldier is only required to follow lawful orders. If an order is illegal or unconstitutional, the soldier has a duty to disobey it.
Why? American service members do not swear an oath to a king. They don’t swear an oath to a general, or even the President. They swear an oath to support and defend the Constitution of the United States against all enemies, foreign and domestic.
Their ultimate loyalty is to the rule of law.
If you look closely at the UCMJ, you see one word repeated everywhere: Lawful.
You can be punished for disobeying a lawful command. You must follow a lawful general order.
That word is doing all the work.
If a command is unlawful, the requirement to obey it disappears. Legally, it’s not an order at all.
The standard: “Manifest illegality”
Some people ask: How is a young soldier supposed to know what’s legal and what isn’t? We can’t expect every private on the front lines to be a constitutional lawyer.
The military understands this. They don’t expect troops to solve Supreme Court cases in the middle of a firefight.
The standard is much simpler. It’s called manifest illegality.
The question is: Would a person of “ordinary sense and understanding” recognize the order as illegal? If the answer is yes, the soldier must refuse.
We’re talking about things that are obviously crimes:
An order to shoot prisoners who have already surrendered.
An order to target unarmed civilians.
An order to torture someone.
These aren’t gray areas. These are war crimes.
If a soldier receives an order like that, they are in a terrible position. It is terrifying to disobey a commander in combat.
But they have to disobey because the law requires it.
No one gets to hide behind “I was just following orders”
If a soldier follows an obviously illegal order, they can’t use the Nuremberg Defense. They can’t say, “I was just following orders.”
History and the law have rejected that excuse. If you commit a war crime, you are responsible for your actions — even if someone above you told you to do it. You will go to prison right alongside the officer who gave the order.
The United States military does not want automatons. It wants reasoning human beings who understand their obligations under the law. At least, that’s the way it used to be before a former Fox News host took over the Pentagon.
So what’s the real issue with Kelly’s statement?
Whether you agree with Senator Kelly’s politics or not, the core legal principle is unchanged.
It doesn’t matter who sits in the White House. It doesn’t matter who runs the Pentagon. The rule is the rule: A soldier must obey a lawful order — and must disobey an unlawful one.
The Pentagon may call Kelly’s statement “reckless.” But the law calls it mandatory.
Service members have a duty to obey. But they also have a higher duty — to the Constitution, and to refuse any order that violates it.
This article is right on-point, Rob. Well explained, well done sir. Happy Thanksgiving.