Illegal Orders and Reasoning Agents

On November 24th 2025 6 U.S Senators and House Representatives (Mark Kelly, Elissa Slotkin, Jason Crow, Chrissy Houlahan, Maggie Goodlander, and Chris Deluzio) released a video on social media addressed to U.S servicemembers where they jointly reminded them of the following: “[that] our laws are clear. You can refuse illegal orders” [5] . The ensuing backlash from MAGA media and the Trump administration was extreme and reactive. The backlash went so far as the President tweeting out statements like “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL. Their words cannot be allowed to stand - We won’t have a Country anymore!!! An example MUST BE SET.” and “SEDITIOUS BEHAVIOR, punishable by DEATH!” [4]. Accompanying the schizophrenic ramblings of the commander in chief, Secretary of Defence Pete Hegseth announced that the Pentagon would begin investigating Mark Kelley, a former naval aviator, and threatened to recall him to active duty for a court marshall [8]. This blatant act of intimidation is unprecedented from the pentagon against sitting lawmakers and begs the question of why their reaction was so strong. 

The video the lawmakers released was not done in a vacuum. This year under President Trump's orders, the U.S military has begun “Operation Southern Spear.” Its objective is to “[remove] narco-terrorists from our Hemisphere, and [secure] our Homeland from the drugs that are killing our people.” [9]. The operation so far has resulted in the mass deployment of naval and marine assets to the Caribbean and, as of Nov 19th, 2025, strikes on 12 small boats killing 83 people. These extrajudicial killings provide context to the video released by the lawmakers and for the extreme and unprecedented reaction by the Trump administration and his base. On September 2nd, 2025, a boat off the Trinidad coast was struck with a missile under the direct orders from Pete Hegseth. According to The Washington Post reporting, two people with firsthand knowledge of the event said the directive was spoken and one of them reports that “[the] order was to kill everybody.” [3] Following the strike, images released (see Figure 1) show two survivors clinging to the wreckage. Reports claim that a second strike was ordered to “finish them off.” This extrajudicial killing goes well into the purview of murder as there was no threat of imminent attack from the survivors and there is no legitimate war of which  those killed on the boat strikes were a part. Furthermore, their status as “drug runners” is flimsy at best, courting a high probability that those killed had nothing to do with the scope of the operation [3]. This returns us to the issue raised by the lawmakers in their video that garnered so much MAGA ire— that illegal orders must be disobeyed and following illegal orders accrues guilt to both the party issuing the order and the party following. 

Servicemembers’ responsibility to disobey illegal orders in the U.S. military is well-documented. According to 10 USC 892: Art. 92 and the military oath of enlistment, orders are to be followed “according to regulations and the Uniform Code of Military Justice” and punishment from a court marshal shall be due to the violation of failure to obey a “lawful order” [6][7]. This constraint on the adherence of orders is also well-outlined in the Department of Defense’s Law of War manual. The obligation and requirement to refuse orders that are knowingly illegal are clearly outlined in 5.10.2.4, 18.3.2, 18.3.2.1, 18.3.2.2, and 180.22.4 of the Law of War manual. 18.3.2.1 clearly states the following:

“The requirement to refuse to comply with orders to commit law of war violations applies to orders to perform conduct that is clearly illegal or orders that the subordinate knows, in fact, are illegal. For example, orders to fire upon the shipwrecked would be clearly illegal.” [10]

In 18.18.3.2 the Law of War manual, citing the Geneva Conventions, also clearly prohibits “[reprisals against] combatant personnel who are wounded, sick, or shipwrecked” [10]. The legality of the September 2nd first strike is already under question due to the as-of-yet unverified status of the victims. The second strike, regardless of their status, breaks international law, U.S law, and the military's codes and regulations. The precedent for trying and convicting illegal acts done under orders are well-documented and plentiful in the U.S. military courts (for plentiful examples, see the citations in the Department of Defence Law of War Manual [10]). Numerous legal precedents demonstrate that it is not only expected but required that service members disobey a knowingly illegal order to escape culpability, and this is evident in the convictions. I will focus on the case of PFC Charles W. Keenan for its similarities to the boat strikes discussed above. 

Keenan was convicted during the Vietnam war for his participation in the illegal killings of two non-combatants, an elderly man (Nguyen Qua) and a woman (Nguyen Thi Co). Keenan was under the command of Corporal Stanley J. Luczko on a ten-man combat reconnaissance patrol in the Tri Binh area on September 22nd, 1966. In a search of some buildings, Nguyen Thi Co, an unarmed civilian, was found hiding behind a haystack. Luczko fired two shots from his sidearm, wounding her, before firing a third shot at her head and then ordering Keenan to “finish her off,” which he promptly did by firing an automatic burst into her body. Luczko then proceeded to cover her body with hay and set it on fire. Nguyen Qua, Nguyen Thi Co’s cousin, was later found walking on a trail. The American GIs stopped him, searched him, and found his identification valid. Luczko proceeded to shoot him with his sidearm and as Nguyen Qua proceeded to walk away. Luczko then ordered Keenan and others in the squad to “Finish him off.” They complied [1].

Keenan was charged with premeditated murder and a reduced sentence of twenty-five years. Due to the fact that both victims were determined to be most likely dead before Keeanan fired on their bodies to finish them off, his charge and sentence were later reassessed; his sentence was reduced to five years imprisonment, but a court denied a dismissal of his charges. In United States v. Keenan, 18 C.M.A. 108, the Court clarified the responsibility of servicemembers in respect to the following of illegal orders. Below, I quote the whole statement.  I want to stress the repetitive, damning nature and pointed phrasing especially with regards to the recent boat strikes in the Caribbean. Judges Ferguson and Darden’s concurrence to the ruling states the following:

“. . . [W]e’ve had evidence in the case regarding orders by a superior and the legality thereof. The general rule is that the acts of a subordinate done in good faith and in compliance with a supposed duty or order are justifiable. This justification does not exist however, when these actions are manifestly beyond the scope of his authority, or the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal. Thus, the acts of a Marine, done in good faith and without malice, in the compliance with the orders of a superior . . . [are] justifiable, unless such acts are manifestly beyond the scope of his authority, and such that a man of ordinary sense and understanding would know them to be illegal. Therefore, it [sic] you find beyond a reasonable doubt that the accused under the circumstances of his age and military experience could not have honestly believed the order issued by his squad leader to be legal under the laws and usages of war, then the killing of the alleged victim was without justification. A Marine is a reasoning agent, who is under a duty to exercise judgment in obeying orders to the extent that where such orders are manifestly beyond the scope of the authority of the one issuing the order, and are palpably illegal upon their face, then the act of obedience to such orders will not justify acts pursuant to such illegal orders.” [1]

The concept that “a marine is a reasoning agent” is a powerful and damning statement in the light of the Trump administration's actions and reactions with the strikes on September 2nd, 2025, and other attacks on the Venezuelan vessels. The opinion makes clear that orders that are manifestly beyond the scope of the authority of the one issuing the order, and are palpably illegal upon their face are not justifications to obey that order. Some make the argument that service members  cannot question orders in the heat of the moment or that the legality of the order cannot be determined in the moment. This is why the syntax of this opinion is important. Our service members are expected to be reasoning agents, meaning they must be able to discern that which is manifestly and palpably illegal on its face. As United States v. Keenan shows, there are legal consequences for a service member to act in a manner that is manifestly and palpably illegal, even under orders. The opinion that judgments of legality can be made by the subordinate has been upheld in other cases, such as in the trial of Pvt Michael A. Schwarz, which yielded the following statement by the Court: "by their conviction of the accused, the Court members necessarily found as a matter of fact the accused could not have honestly and reasonably believed that the Herods' order to kill the apparently unarmed women and children was legal" [2]. 

Both Keenan and Schwarz’s crimes occurred in the Vietnam War, a conflict rife with military killings of civilians. A commission in 1984 on how illegal actions were handled during the conflict resulted in the following statement from Generals Westmoreland and Prugh: 

"Probably the most worrisome aspect of this situation [is] that nowhere does there seem to be any recognition of the special need for the military justice system to work in times of military stress. Certainly there has been no effort to evaluate how it has worked and might work in the future. The emphasis has all been in the direction of civilianization. The one certainty is that it is not at all likely to do the job of requiring obedience ... in time of hostilities." [2]

This lack of proper structures then and especially now to deal with illegal actions during a military conflict or operation only highlights the importance of documenting and highlighting actions that are illegal now. When asked how the military justice system would work in future conflicts, Charles A. Cushman, former Assistant Judge Advocate General of the Navy for Military Law, said the following: "Would it work? Of course it would work. It would work with major flaws and major difficulties and major delays, but . . . you would make it work." [2]. The intent of the Trump administration and Pete Hegseth’s DoD is to normalize illegal behavior and suppress and threaten those who shine a spotlight on their crimes. Their response to the video by the six lawmakers is an example of that attempt to suppress the dissent to their illegal orders and to degrade the reasoning of U.S. service members. It is essential that lawmakers, public officials, private and public media, and private individuals keep these actions in the record so that— in spite of major difficulties and delays —we can hold them to account.

Sources

[1] - United States v. Keenan 18 C.M.A. 108 - https://www.courtlistener.com/opinion/8596898/united-states-v-keenan/  

[2] - Marines And Military Law In Vietnam: Trial By Fire. By: Lieutenant Colonel Gary D. Solis

[3] - Washington Post: Hegseth order on first Caribbean boat strike, officials say: Kill them all https://www.washingtonpost.com/national-security/2025/11/28/hegseth-kill-them-all-survivors-boat-strike | https://archive.is/Dnq8a#selection-249.0-249.74 

[4] - Politico: Pentagon to investigate Sen. Mark Kelly for anti-Trump video https://www.politico.com/news/2025/11/24/pentagon-to-investigate-sen-mark-kelly-for-anti-trump-video-00666894 

https://www.politico.com/live-updates/2025/11/20/congress/trump-democratic-lawmakers-sedition-00661504 

[5] - azcentral: Watch the Mark Kelly video that Trump says is 'punishable by DEATH!' https://www.azcentral.com/story/news/politics/arizona/2025/11/21/mark-kelly-elissa-slotkin-video-donald-trump-called-treasonous/87404828007/ 

[6] - 10 USC 892: Art. 92. Failure to obey order or regulation https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section892&num=0&edition=prelim 

[7] - US military oath of enlistment https://www.army.mil/values/oath.html 

[8] - AP: Pentagon says it’s investigating Sen. Mark Kelly over video urging troops to defy ‘illegal orders’ https://apnews.com/article/pentagon-mark-kelly-troop-investigation-4882f76b05dcdfa3060c284c2c84dd12 

[9] - PBS: All the U.S. military strikes against alleged drug boats https://www.pbs.org/newshour/world/all-the-u-s-military-strikes-against-alleged-drug-boats 

[10] - Department of Defence Law of War Manual 

Sections:

• 5.10.2.4
• 18.18.3.2
• 18.3.2
• 18.3.2.1
• 18.3.2.2
• 180.22.4

https://ogc.osd.mil/Portals/99/department_of_defense_law_of_war_manual.pdf