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The U.S. Constitution establishes provisions to structure governance and prevent the abuse and concentration of power, including:

Article I, Section 8 – Grants Congress power to regulate the military.

Article I, Section 9 – Habeas Corpus: Protects against unlawful detention.

Article II, Section 2 – Establishes the President as Commander-in-Chief.

The Insurrection Act of 1807 – Permits domestic military deployment under strict conditions.

The First Amendment – Protects protest and dissent.

Impeachment and Judicial Review – Provide legal mechanisms to check executive overreach.

Given these constitutional provisions, what formal mechanisms—such as legal precedents, military oaths, internal policies, or codes of conduct—guide U.S. Armed Forces members in refusing unlawful or unconstitutional orders from political or executive leadership, including civilian authorities and superior officers acting under executive direction?

F1Krazy
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Who killed Biggie and Tupac
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2 Answers2

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The US Code of Military Justice Article 92 requires military personnel to obey lawful orders. This has generally been interpreted to imply that they may legally refuse to obey unlawful orders.

According to an article by the Law Offices of Matthew Barry, well known cases involving unlawful orders include the My Lai Massacre, the Abu Ghraib Prison Scandal, the 2012 Quran Burnings, and the Maywand District Murders.

ohwilleke
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Barmar
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17

This is far from a scholarly legal treatment of the matter, but - the basic commitment of members of US military forces, and the one it can be argued we can expect them to be most fundamentally cognizant of, is the oath of enlistment:

I ... do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. (So help me God)."

So:

  • The enlisted person is formally committed to defend the Constitution - not the government (or the executive branch of it). Of course, "the Constitution" is not just a piece of text, it will also be understood to mean, in this context, the institutional arrangements the Constitution-document mandates.
  • In the order of commitments defense of the Constitution precedes obedience to orders, and thus, in a lay understanding - the former supersedes the latter.
  • The of the constitution is also defense "against ... enemies ... domestic" - and considering the former points, that seems to implicitly cover incumbent officers or even governments.

So - using a lay understanding of a military service-person's obligation - they are obligated not only to refuse anti-constitutional orders, but even to act to countermand such orders or other anti-constitutional initiatives.

einpoklum
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