Members of the U.S. military have the legal right to refuse orders they believe are unlawful. However, experts in military law caution that disobeying a lawful order can lead to violations of military regulations. Service members are expected to assume that orders are lawful, provided they come from a proper authority and relate to military duties. This principle stems from the Nuremberg trials after World War II, which established that individuals cannot use the defense of following orders for committing war crimes.

Most military orders exist in a gray area, where the distinction between lawful and unlawful is not clear-cut. While service members can refuse an order, by the time it reaches them, a military lawyer has likely already assessed its legality. Recent discussions in Washington have focused on military orders after a group of Democratic lawmakers, all veterans or former intelligence officials, released a video urging military personnel to refuse illegal orders. They stated, "You can refuse illegal orders. No one has to carry out orders that violate the law or our Constitution."

Sen. Mark Kelly, a Navy veteran, emphasized the importance of standing up for the Constitution, stating, "There is nothing more American than standing up for the Constitution." In response, Defense Secretary Pete Hegseth and others labeled the video as "seditious," claiming it undermines military discipline. The Pentagon announced an investigation into Kelly for his involvement in the video, which has raised concerns about the implications for military law and the separation of powers.

Legal experts argue that the lawmakers did not encourage disobedience of lawful orders but rather highlighted the right to refuse unlawful ones. Brenner Fissell, a law professor, stated, "They were not encouraging the disobedience of lawful orders; they were encouraging the disobedience of unlawful orders. And that is a correct statement of the law."

The Uniform Code of Military Justice (UCMJ) mandates that service members obey lawful orders, but it also allows them to refuse unlawful ones. Experts note that service members could face prosecution for carrying out orders that are clearly illegal, such as those constituting war crimes. Claire Finkelstein, a national security law professor, affirmed that the lawmakers were exercising their freedom of speech and did not instigate any criminal actions.

The controversy surrounding military orders has intensified amid scrutiny of recent military actions, including strikes against alleged drug smugglers in the Caribbean. Lawmakers have questioned the legality of these operations, although they did not specify any particular orders in their video. Kelly and Slotkin acknowledged they could not point to specific unlawful orders but expressed concerns about the legality of certain military actions.

The Department of Defense cited a provision of the UCMJ regarding interference with military loyalty and morale in its investigation of Kelly. However, legal experts have expressed skepticism about the validity of this investigation, suggesting it could be an overreach. Saira Mohamed, a law professor, described the investigation as "groundless," asserting that Kelly's statements merely restated the law.

In the wake of the video, some lawmakers have faced threats, including calls for violence against them. Senate Minority Leader Chuck Schumer condemned the President's remarks, stating they amounted to threats against elected officials. The situation raises concerns about the potential chilling effect on free speech and the safety of lawmakers who express dissenting views.

As the investigation unfolds, the implications for military personnel and their rights to refuse unlawful orders remain a critical topic of discussion. Experts emphasize the importance of understanding the legal framework surrounding military orders and the potential consequences of disobedience.