Obeying an Unlawful Order is Not a Defense

Matthew Mangino
Tue, 17 Feb 2026 09:23:40 -0800
Opinion

Befehlsnotstand is a word worth noting. The word is of German origin. The legal term refers to soldiers who obey illegal orders because they are afraid of the consequences if they do not obey. The defense didn't work in Nuremberg after World War II and won't work today.

In a weird twist on the concept of befehlsnotstand, last fall, Sen. Mark Kelly and five other Democratic lawmakers released a video advising U.S. military personnel that they "can refuse illegal orders."

Kelly was joined by Senator Elissa Slotkin and Reps. Jason Crow, Chrissy Houlahan, Maggie Goodlander, and Chris Deluzio — all with military or intelligence backgrounds.
Updated: Tue Feb 17, 2026

Befehlsnotstand is a word worth noting. The word is of German origin. The legal term refers to soldiers who obey illegal orders because they are afraid of the consequences if they do not obey. The defense didn't work in Nuremberg after World War II and won't work today.

In a weird twist on the concept of befehlsnotstand, last fall, Sen. Mark Kelly and five other Democratic lawmakers released a video advising U.S. military personnel that they "can refuse illegal orders."

Kelly was joined by Senator Elissa Slotkin and Reps. Jason Crow, Chrissy Houlahan, Maggie Goodlander, and Chris Deluzio — all with military or intelligence backgrounds.

They emphasized, "Our laws are clear. You can refuse illegal orders," while urging troops to uphold their oath to the Constitution. This statement came amid concerns regarding potential unlawful orders by the Trump administration, particularly from Secretary of War Pete Hegseth.

This comes into focus, yet again, as the Trump administration, through the U.S. military, carried out another deadly strike on a vessel accused of trafficking drugs in the Caribbean Sea.

According to ABC News, the U.S. Southern Command announced that the boat "was transiting along known narco-trafficking routes in the Caribbean and was engaged in narco-trafficking operations." It said the strike killed three people. A video linked to the post shows a boat moving through the water before exploding in flames.

This most recent attack raises the death toll from the Trump administration's strikes on alleged drug boats to 133 people in at least 38 attacks carried out since early September in the Caribbean Sea and eastern Pacific Ocean.

Under both U.S. and international law, it is flagrantly illegal to use the military to kill civilians suspected of only crimes. The United States is not in an armed conflict with anyone in Latin America. That means the people on these boats are civilians. Civilians, including those suspected of smuggling drugs, are not lawful targets.

The Trump administration countered by saying the cartels behind the drug trafficking are terrorists and, therefore, the attacks are legal. The Justice Department's Office of Legal Counsel (OLC) has issued a "secret" memo to legally justify the US military's strikes on these boats and their occupants.

This memo reportedly details the Trump administration's legal reasoning. Initially, the strikes are lawful because the United States is in an "armed conflict" with unspecified drug cartels, and the officials who have authorized or carried out these strikes should not be prosecuted for murder or other crimes, reported the American Civil Liberties Union. Even as legal experts from across the political spectrum have challenged these claims, the administration has refused to release the OLC memo or any related records.

To complicate things even further, on at least one occasion, two survivors of a boat attack, considered shipwrecked, were killed by a second attack. In addition, reports from January indicate that the U.S. military has used disguised aircraft, designed to look like civilian planes, to attack suspected drug-smuggling boats in the Caribbean. This tactic has raised serious legal and ethical questions regarding "perfidy," which is considered a war crime under international law, according to The Guardian.

Under Article 92 of the Uniform Code of Military Justice (UCMJ), service members are legally obligated to obey only lawful orders. According to the military website MyBaseGuide.com, an illegal order is a directive that violates a law, regulation, or the Constitution.

Examples of illegal orders include committing a crime, engaging in unethical acts, or violating human rights standards. The UCMJ requires military personnel to disobey patently illegal orders, such as those directing war crimes or "targeting civilians."

International Courts have established that befehlsnotstand is not a defense. The defense was unsuccessful for senior members of Adolph Hitler's leadership during the post-World War II Nuremberg trials and likely would be unsuccessful today.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, "The Executioner's Toll," 2010, was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino