The Duty to Disobey Unlawful Orders
Part 3: Why obedience to unlawful orders is no defence
Written By: Gary Moore
As mentioned in Parts 1 and 2, US secretary of defense (as he then was) Pete Hegseth on 21 February 2025 removed the incumbent judge advocates general (JAGs) of the Army, Navy and Air Force. JAGs are military lawyers who advise on international law and rules of engagement and investigate potential violations of the laws of armed conflict and military law.
Analysts say that Hegseth’s late-night dismissal of the JAGs is a grave threat to the rule of law. Prof Rosa Brooks at Georgetown University states in the ABA Journal that firing the top lawyers is “what you do when you’re planning to break the law: You get rid of any lawyers who might try to slow you down.”
In response to their firing, those and other erstwhile JAGs have established a “Former JAGs Working Group” which issues unofficial opinions containing advice they would have given to US commanders about the lawfulness or otherwise of specific uses of military force.
The Working Group has issued opinions about the lawfulness of US military air attacks against alleged narcotrafficker “go-fast” boats in the Caribbean Sea and the eastern Pacific Ocean, the first such attacks being the two lethal strikes on 2 September against one boat in the Caribbean that destroyed the vessel and its cargo and killed all its crew.
As stated in Part 1, the Former JAGs Working Group concludes that no domestic law authorises the President to engage these targets with lethal force, and therefore extrajudicial killing of these targets without legal justification constitutes the crime of murder.
And, as stated in Part 2, the Former JAGs Working Group is of the opinion that there is no international legal authority permitting the boat strikes.
(Drug smuggling is neither combat nor an integral part of combat operations. It is not aimed at prejudicing US military operations and does not constitute military action. It is not part of a war effort. It is not viewed as a military activity and is not traditionally performed by military forces conducting military operations.
(Even if the US were in an armed conflict with any of these cartels such that the law of armed conflict applied, targeting civilians ferrying drugs for profit would violate the Geneva Conventions, which categorises murder in non-international armed conflict as a grave breach of the Conventions. Federal law describes such violations of the Conventions as war crimes.)
The Former JAGs Working Group goes further. They say there may be a professional duty to disobey an unlawful order even if not patently unlawful, and an immoral order even if lawful.
The US Code’s statutory requirement for exemplary conduct by leaders in the services states that commanding officers and others in authority in the forces are required to show themselves a good example of virtue and honour, to be vigilant in inspecting the conduct of everyone placed under their command, and to guard against all immoral practice. The Working Group avers that these duties may justify disobedience of an otherwise lawful or not patently unlawful order even if it exposes the leader to adverse professional consequences or criminal prosecution.
The Working Group points out that the US Code stipulates that no officer or employee of the Department of Defence may interfere with the ability of judge advocates performing duty with military units to give independent legal advice to commanders. Army Rules state that a lawyer is required to give an honest opinion about the actual consequences that appear likely to result from specific conduct, must exercise independent professional judgment and render candid advice, and may refer not only to law but also to moral, social and political considerations that may be relevant.
The Working Group points out that their advice conflicts with Executive Order 14215 issued by President Trump on 18 February 2025. That executive order asserts that “the President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties” and no employee of the executive branch acting in their official capacity may advance an interpretation of the law that contravenes the President or Attorney General’s opinion on a matter of law.
The Working Group says that, as applied to its opinions about the lawfulness of US strikes against alleged narcotrafficker boats in the Caribbean and eastern Pacific, this Executive Order is not lawful, in that it purports to restrict the statutorily-protected independent legal advice required to be provided by a judge advocate to members of the chain of command.
On 29 November, the Former JAGs Working Group noted that the Washington Post and CNN reported that the Secretary of Defense had personally issued orders to “kill everybody” aboard the vessel carrying 11 civilians and an alleged cargo of drugs. As mentioned, the vessel was attacked on 2 September, with the first strike resulting in the vessel’s near-total destruction and the second in the killing of the two survivors that were clinging to wreckage.
The Former JAGs Working Group unanimously considers both the giving and the execution of these orders, if true, to constitute war crimes, murder or both, and anyone who issues or follows such orders can and should be prosecuted for war crimes, murder or both.
On 4 December Jackie Calmes in the Los Angeles Times wrote that Hegseth and Trump have distanced themselves from the operation and have indicated that the Admiral in charge is responsible.
Reports indicate that US allies involved in counternarcotics operations in the Caribbean are concerned that current US operations violate the rule of law. The United Kingdom has apparently stopped sharing antidrug intelligence with the US, and other countries (including Canada, The Netherlands and Colombia) will not be far behind, according to the Government Accountability Project.
[To be concluded in Part 4.]
Gary Moore, a practising attorney for 30 years, is a Senior Associate at the Free Market Foundation.