The Lawfare Podcast

Episode: Lawfare Daily: The Duty to Disobey Unlawful Orders
Date: December 11, 2025
Host: Natalie Orput
Guests: Frank Rosenblatt (Professor, MC Law; former Lt. Col., JAG, U.S. Army), Colby Vokey (Former Lt. Col., JAG, U.S. Marine Corps)

Overview

This episode delves into the legal and practical complexities surrounding the duty of U.S. military personnel to disobey unlawful orders. Against the background of recent controversies—including drone strikes on boats in the Caribbean and the changing structure of Pentagon legal review—the conversation explores the origins, mechanisms, and lived realities of this duty. The discussion is enriched by the guests' wartime and legal expertise, providing a sobering look at the current state and future risks of military law and civilian oversight.

Key Discussion Points and Insights

1. The Legal Framework: Obeying and Disobeying Orders

• Obligation to Follow Orders:

  • In the military, unlike civilian jobs, failure to obey orders is criminally punishable, codified in the Uniform Code of Military Justice (UCMJ). (Frank Rosenblatt, 04:14)
  • The presumption is always that orders are lawful.
  • Disobedience—not merely disagreement—is punishable; in wartime, even by death (Article 90 of the UCMJ). (Natalie Orput, 08:02)

• The Duty to Disobey Unlawful Orders:

  • There’s an inherent—but not always explicit—obligation to refuse “manifestly unlawful” orders. (Frank Rosenblatt, 04:14)
  • What counts as “manifestly unlawful” is: “something that a person of ordinary sense and understanding would know that just can’t be right.” (Frank Rosenblatt, 04:14)
  • The Manual for Courts Martial and the Law of War Manuals (across military branches) further specify limits and expectations. (Colby Vokey, 07:08)

“There is nothing out there that specifically says you have a duty to disobey unlawful orders. It’s kind of inherent, written in the regulations that we have. But some of them are also a lot of common sense.”
—Colby Vokey [09:17]

2. War Crimes, Legal Gray Zones, and the Problem of Hindsight

• Manifest Illegality vs. Real-Time Judgment:
  • Orders may seem ambiguous in the heat of battle; clarity often emerges only in hindsight. (Frank Rosenblatt, 12:02)
  • Examples:
    • Captain Yolanda Huet-Vaughn objected to the Gulf War on legal grounds, was court-martialed and lost.
    • Abu Ghraib: Sgt. Smith followed orders deviating from training, later convicted because the order to terrorize detainees with dogs was manifestly unlawful in retrospect.

“What counts as manifestly unlawful is decided in hindsight.”
—Frank Rosenblatt [12:02]

• War Crimes Prosecutions:
  • The U.S. rarely prosecutes for explicit “war crimes”; most combat-related offenses are tried under the UCMJ.
  • Notable exceptions/illustrations discussed include Haditha and My Lai. (Colby Vokey, 09:17)

3. Who Determines Legality and How?

• In Court:
  • Ultimately, a military judge decides legal questions of order lawfulness at court-martial. The accused can raise “unlawfulness” as a defense. (Colby Vokey, 15:26)
• In the Field:
  • The burden falls on the individual, often amid confusion and time pressure—“It’s a gamble, a heavy decision to make.” (Colby Vokey, 15:26)
• Case Study – Haditha:
  • A complex, murky scenario where Marines questioned the legality of orders and acts during chaotic engagement, highlighting how “on the ground” clarity is seldom achievable. (Colby Vokey, 15:26-20:18)

4. Training, Experience, and the Limits of Legal Guidance

• Role of Training:
  • Formal and pre-deployment Law of War and Rules of Engagement (ROE) training are standard but imperfect, often presented as scenarios with “it depends” answers. (Colby Vokey, 25:31)
• Practical Effect:
  • Judgment on legality derives more from training and context than on-the-spot legal consultation, especially under pressure.
  • Manifestly clear “red lines,” like attacking shipwrecked persons, are sometimes not even explicitly trained for because they are so fundamental. (Colby Vokey, 25:31)

“No amount of training is going to be able to encompass every single scenario that’s out there.”
—Colby Vokey [25:31]

5. Shifting Legal Advice and the Politicization of Military Law

• Recent “Sea Change” in Pentagon Legal Review:
  • Traditionally, military lawyers provided independent advice to commanders. As of early 2025, new guidance centralizes legal authority with the DOJ/OLC—reducing field lawyers' autonomy. (Frank Rosenblatt, 41:43)
  • OLC memos can now dictate operational legality and immunize actions from prosecution, weakening internal dissent.

“There was guidance put out that said the authoritative determination of all matters of law in the executive branch will be done by the Attorney General…That is a big difference in how military lawyers operate this year.”
—Frank Rosenblatt [41:43]

• Potential Suppression of Dissent:
  • Unconfirmed reports of JAG officers relieved or reassigned for legal objections to recent operations, e.g., in the Caribbean. (Colby Vokey, 37:37)

6. Civilian vs. Military Legal Authority

• Obligation to Obey Orders from Civilian Leadership:
  • The military is fundamentally civilian-led, and orders from civilian superiors (President, SecDef, AG) are considered presumptively lawful. (Colby Vokey, 43:41)
  • However, the standard for “manifestly unlawful” remains; illegal orders must still be resisted regardless of origin. (Colby Vokey, 46:09)

“If you have… from the President… given to the Secretary of Defense, I mean, that becomes a lawful military order like any other. It’s troubling, but it’s a lawful order. Presumptively lawful order.”
—Colby Vokey [43:41]

7. OLC Opinions vs. International Law

• OLC Declarations Do Not Supersede Treaties:
  • Reference to “enhanced interrogation” in post-9/11 context as precedent: OLC can stretch definitions, but cannot erase treaty obligations (e.g., Geneva Conventions). (Frank Rosenblatt, 47:27)
  • Members of the military may still face prosecution if OLC interpretations violate international law. (Colby Vokey, 49:18)

“You can’t have OLC saying this is the new law without doing something about the other law... That’s the slippery slope we seem to be going down right now.”
—Colby Vokey [49:18]

• Vital Role of On-the-Ground Military Lawyers:
  • Proper functioning requires integrated legal review in operational settings. Erosion of this “protection” endangers both individuals and policy legitimacy. (Colby Vokey, 49:18–53:07)

8. The Orders Project and Real-World Dilemmas

• Support for Conflicted Service Members:
  • The Orders Project (OrdersProject.com) offers military members confidential, neutral legal advice when facing ambiguous, possibly unlawful orders. (Frank Rosenblatt, 54:12)
  • Examples range from National Guard domestic deployments to staff working on contested Caribbean operations. (Colby Vokey, 55:57)

“A lot of people that call, we tell them, you’ve got a duty to obey… But we get others as well—some much more difficult situations.”
—Colby Vokey [55:57]

9. What to Watch: Public Oversight and Internal Checks

• Worries about Top-Down Command and Erosion of Legal Independence:
  • Concerns include sidelining of military legal staff, change in Coast Guard mission toward combatant roles, and reduction in operational transparency. (Frank Rosenblatt, 58:35; Colby Vokey, 59:37)

Notable Quotes & Memorable Moments

• “It’s a high wire act. On the one hand, you know you’ll get in trouble if you don’t follow a lawful order, and sometimes what counts as manifestly unlawful is decided in hindsight.”
  —Frank Rosenblatt [12:02]

• “A pile of poop is not a rose just because you change the name.”
  —Colby Vokey [37:37]

• “What we’re seeing now is…taking that [legal] protection out. We’re either sidelining [the lawyers], not listening to them, or just replacing them with somebody… a yes man, and we’re taking that out of the equation. That’s the protection. That’s not just protection for the administration. That’s protection for the individual commanders…it’s a very dangerous thing.”
  —Colby Vokey [49:18]

• “There was guidance put out that said the authoritative determination of all matters of law in the executive branch will be done by the Attorney General…That is a big difference in how military lawyers operate this year.”
  —Frank Rosenblatt [41:43]

Timestamps for Key Segments

• Presumption of Lawful Orders & UCMJ framework: 04:14–07:08
• Duty to Disobey & Manifestly Unlawful Orders: 07:08–09:17
• War Crimes, Examples (Huet-Vaughn, Abu Ghraib, Haditha): 12:02–20:18
• Judgment in the Field vs. In Court: 15:26–22:14
• Training and ROE Education: 22:26–27:59
• Law of War vs. Law Enforcement Paradigm (Caribbean Strikes): 34:17–36:33
• Collapse of Traditional Legal Review in DoD: 37:37–41:43
• Civilian/Military Order Authority: 43:41–46:09
• OLC and International Law Tension: 47:27–53:07
• The Orders Project – Supporting Individual Dilemmas: 54:12–57:49
• What To Watch Next: 57:49–60:42

Conclusion

This episode offers a rich, nuanced discussion about the evolving legal landscape for U.S. military personnel faced with potentially unlawful orders. The hosts and guests underscore the growing danger of eroding independent legal advice within military hierarchies, the blurred lines between law enforcement and combat, and the risks of “legal shield” policies driven by OLC opinions. The insights from the Orders Project highlight the personal toll and practical uncertainty shouldered by those in uniform.

For more legal analysis on national security issues, visit Lawfare.