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My understanding is that members of the United States military are legally required to obey all lawful orders and to disobey all unlawful orders. (Obviously this could get very tricky in practice, because it is not always obvious at the time whether an order is lawful - especially in the heat of battle.)

Is there any reported instance of any deployed member of the U.S. military actually refusing an order on the grounds that it was unlawful? If so, please describe how this went. For example: did they face a court-martial? What was the outcome, both legally (if court-martialed) and "in the judgement of history"?

The closest examples that I could find are discussed here: a couple officers have attempted to refuse to deploy to Iraq (or Kuwait) in 2006 and 2016 on the grounds that the U.S.'s entire involvement in the Iraq War (and the subsequent Combined Joint Task Force – Operation Inherent Resolve) exceeded Presidents Bush and Obama's legal authority. Both attempts were almost immediately dismissed and never went anywhere. But are there any reported examples of soldiers who were actually deployed refusing an order during combat?

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed. Commented Dec 5, 2024 at 19:39

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Hugh Thompson Jr.

He is credited with ending the Mỹ Lai Massacre of the South Vietnamese village known as Sơn Mỹ on March 16, 1968, alongside Glenn Andreotta and Lawrence Colburn.

Thompson: What's going on here, Lieutenant?

Calley: This is my business.

Thompson: What is this? Who are these people?

Calley: Just following orders.

Thompson: Orders? Whose orders?

Calley: Just following...

Thompson: But, these are human beings, unarmed civilians, sir.

Calley: Look Thompson, this is my show. I'm in charge here. It ain't your concern.

Thompson: Yeah, great job.

Calley: You better get back in that chopper and mind your own business.

Thompson: You ain't heard the last of this!

While Warrant Officer Thompson did follow Lieutenant Calley’s order to “get back in that chopper”, he did not “mind [his] own business.” Instead he rescued civilians and interposed himself between US soldiers and their potential victims. At one point ordering his door gunners to be ready to fire on any US personnel who continued massacring civilians.

Thompson flew to the Task Force Barker headquarters (Landing Zone Dottie), and angrily reported the massacre to his superiors. His report quickly reached Lieutenant Colonel Frank Barker, the operation's overall commander. Barker immediately radioed ground forces to cease the "killings".

The US chain of command attempted to cover up the massacre, so charges could, of course, not be laid as a court martial would reveal everything. Instead Thompson was awarded the DFC on a fabricated basis (rather than the actual basis which was clearly deserved).

Eventually, news of the massacre leaked and Thompson testified before Congress and in the court martial of Calley that followed. He was vilified by many Americans and received death threats and had dead animals left at his front door. Whether this was because the thought he was lying or because they thought US soldiers raping and murdering civilians is OK I can’t say - probably a little of both.

Of the 26 men charged over the war crime, only Calley was convicted and served 3.5 years of a 20 year sentence.

Thompson remained in the army as a flight instructor for several more years eventually retiring as a Major. He continued to fly in civilian life and participated in several documentary films about the massacre, including the award winning Four Hours in My Lai.

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    This isn't exactly what I was looking for. There is no explicit evidence that Thompson believed that he was legally prohibited from obeying Calley's order; he may have been motivated by (completely appropriate) moral outrage instead. In fact, it isn't entirely clear to me that Calley's specific order to Thompson was illegal, even though many of Calley's other actions that day clearly were. Commented Dec 1, 2024 at 5:17
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    Basically, I'm looking for an instance in which a member of the armed forces explicitly refused to obey an order, directly to the issuing officer, and stated at the time that they believed that they were legally prohibited from obeying the order. Commented Dec 1, 2024 at 5:19
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    Based on your comments, I think it still may not be quite what you're looking for, but there certainly have been cases where there were direct orders and soldiers refused to follow them, not because following them was illegal, but because the commanding officer did not have authority to issue them. See, e.g., United States v. Wysong, 26 C.M.R. 29 (1958); United States v. Milldebrandt, 25 C.M.R. 139 (1958). Commented Dec 1, 2024 at 6:20
  • @bdb484 Thanks, those are interesting examples. But yes, that isn't quite what I was looking for, because those orders were to perform actions that were perfectly legal, but the orders were ruled to either be unacceptably broad/vague or to not have a valid military purpose (specifically, inappropriately regulating a soldier's personal activities while he was out of uniform). Commented Dec 1, 2024 at 18:55
  • @VeryTinyBrain various of Calley's subordinates refused orders during the massacre and were not court martialed. This is different from Thompson's case because they were under Calley's command, which Thompson was not; the orders were related to the unit's operations ("kill those people"), whereas with Thompson it's not even clear that there was an order ("you better get back in that chopper"); and because an order to "kill those people" when the people in question are unarmed civilians is much more obviously unlawful than "get back in the chopper." Commented Dec 2, 2024 at 1:33

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