We’re seeing a lot of discourse about troops and how they should respond to unlawful orders. That’s good. What’s NOT so good, though, is that almost all of the discourse is naive. Much of it comes from civilians who’ve never served and don’t understand how the military operates, or from veterans who were officers. Very little of it is coming from former enlisted personnel–the poor bastards who actually have to carry out those orders.

Here’s a True Thing and in order to actually understand the current discourse you have to accept the truth of this: the foundation of all military hierarchies is grounded on one simple rule: you are required to immediately obey a direct order from a superior officer. In the military, a direct order is a specific, clear command to do something. Go there, do this. The military instills this in all enlisted troops because in combat, you don’t have time to discuss direct orders. You can’t mull over the moral, ethical, or legal implications of the order. You just have to obey it. Even if the direct order is stupid, even if it’s blatantly obvious to you that it’s the wrong thing to do, even if it puts you or others in extreme danger. You’re supposed to just fucking DO it and do it immediately. You’re actually trained to just fucking do it.

The only acceptable military response to a direct order is “Yes sir.”

But but but…what if the order is unlawful? You’re obligated to obey a direct order, but you’re also obligated to REFUSE to obey a direct order if it’s not lawful. The problem, of course, is most troops have a rather vague notion of what is and what isn’t lawful. That problem is compounded by the fact that a direct order must be obeyed immediately.

What’s a lawful order? Article 92 of the Uniform Code of Military Justice isn’t particularly helpful. It suggests a direct order should be presumed to be legal:

“An order requiring the performance of a military duty or act may be inferred to be lawful, and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime. The lawfulness of an order is a question of law to be determined by the military.”

So, what’s a service member to do if they’re given a direct order and they’re skeptical about the order’s lawfulness? There’s a protocol for that. You’re supposed to:

1. Seek clarification of the order. Ask the officer, “Sir, I want to make sure I understand. Are you ordering me to do this thing that seems to me like it might be really fucking illegal?” If the officer answers ‘yes’, but you’re STILL not sure it’s legal, then you’re supposed to…
2. Consult a higher authority. “Sir, I’d like to talk to your superior or maybe a lawyer before I do this thing that seems to be really fucking illegal.”

Odds are at this point, the officer will order some other service member to put you under arrest. If the order turns out later to have been lawful, you’re fucked; you may do time in a military prison and you’ll get a dishonorable discharge. If it turns out to have been unlawful, guess what: you’re still fucked. Every officer you deal with in the future will be sure to give every shit detail that comes along, because you can’t be trusted to follow orders from your superior officers.

This is what’s missing from the discourse. The military is unlike civilian life. If you go to work and your boss tells you to do something you think violates the law, you can refuse. The worst that will happen is you’ll be fired. In the military, you could go to prison.

It’s easy to say to troops, “Just don’t obey.” It’s not that easy for the troops. Especially when they’re serving under a Commander-in-Chief who pardons and celebrates war criminals. It’s easy to remind troops that ‘just following orders’ didn’t help Nazis during the Nuremberg trials. It’s not that easy when it’s your ass that’s looking at arrest and imprisonment.

That said, troops SHOULD ABSOLUTELY REFUSE to obey orders they believe are unlawful. But we should also be aware of the risk we’re asking them to take.