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What Is a Military 'Duty to Disobey'?

What Is a Military 'Duty to Disobey?'
By Richard Dahl on November 27, 2019 9:37 AM

When can a soldier or officer refuse to follow an order they disagree with?

The question arose recently when U.S. Secretary of the Navy Richard Spencer resigned from his post after saying that he felt an obligation to disobey an order from his commander-in-chief, President Donald Trump.

The issue involved a Navy SEAL, Eddie Gallagher, whose demotion for posing for a photo with a combatant's corpse was reversed by Trump on Nov. 15.

That action prompted Spencer to send Trump a resignation letter on Nov. 24 in which he stated, "I cannot in good conscience obey an order that I believe violates the sacred oath I took in the presence of my family, my flag and my faith to support and defend the Constitution of the United States."

So, can a person in the military simply refuse to follow an order if they don't like it?

The answer is yes — if they consider the order itself to be illegal or unconstitutional.

It's generally called a "duty to disobey," and is empowered by the Uniform Code of Military Justice. The UCMJ is more concerned about the need to obey orders, but specifies the conditions when military personnel may feel justified in not following them:

  • If the order is "contrary to the constitution" or "the laws of the United States."
  • If the order is "patently illegal, ... such as one that directs the commission of a crime."

Paying the Price for Following Bad Orders

Over the years, there's been a recognition that "duty to disobey" is sometimes warranted. Former National Security Agency Director Michael Hayden, for instance, has suggested that military members could be justified in refusing to torture prisoners.

The most famous of them, perhaps, have been instances where prosecutors felt that people should have disobeyed orders. Nazi defendants in the Nuremberg Trials after World War II argued, to limited effect, that they were just following orders. U.S. Army Lt. William Calley used the same argument in defending himself against murder charges following the My Lai Massacre in Vietnam. (He ultimately served 3 1/2 years in military prison.)

In Spencer's case, of course, the person who took the apparently conscientious stand to disobey the order — himself — is the one paying the price.

The timeline to his demise began with the trial in July of Chief Petty Officer Gallagher, who faced charges of shooting civilians and murdering an ISIS captive. He was found not guilty of those charges, but was convicted on one charge: posing for photos with the teenage captive's dead body.

That conviction meant he was demoted, but Navy brass also considered further discipline. They ordered an administrative investigation of the Trident Review Board to weigh whether Gallagher should be stripped of his Trident Pin, denoting membership in the elite SEALS.

Gallagher gained sympathetic attention, including among many Republicans in Congress, and then Trump intervened. When Spencer objected, Trump spoke to Defense Secretary Mark T. Esper, and Esper requested Spencer's resignation.

His resignation letter — the one where he claimed a duty to disobey — followed.

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