Dear JAG: How Should Service Members Respond If Ordered to Attack Civilian Boats?

This month saw another fatal U.S. military strike on a civilian vessel in international waters, allegedly involving drug trafficking. As similar strikes mount, questions about their legality have intensified. At the same time, public debate over service members’ obligations to refuse unlawful orders has led to political controversy and attention from defense officials.

We write as a former Coast Guard judge advocate and a retired Air Force major general who served as deputy legal counsel to the chairman of the Joint Chiefs of Staff and as deputy judge advocate general of the Air Force. Below we offer practical perspective for service members who may face orders they believe could be unlawful.

The following is a hypothetical instructional email exchange between a military-law expert and a ship commander. It draws on publicly reported facts, the Manual for Courts‑Martial, the Uniform Code of Military Justice, and the authors’ professional judgments. Our goal is to explain the legal framework and the real‑world challenges of identifying, questioning, and—rarely—refusing unlawful orders.

From: Joseph_Shipdriver@navy.mil
Sent: Sunday, November 16, 2025 2:25 PM
To: oldnavyjag_1979@verizon.com
Subject: Need some advice

Bob,

I hope you’re well. I’m now commanding a ship with a great crew. I can’t say exactly where we are, but we’re conducting weapons-on-target missions—work we trained for as surface warfare officers. I’ve read your pieces about illegal orders and unconventional uses of force, and I need help understanding the line between lawful and unlawful orders.

What should I tell my crew if they think an order is illegal? I remember the Naval War College lecture but skipped much of it. Now we’re being told to target boats and there are real risks and real questions from sailors I don’t feel fully equipped to answer.

Any guidance would be a huge help. I’ve got enough to worry about—my ship, my crew, and our mission—and I don’t want to lose more sleep over whether what we’re doing is legal.

Thanks, Joe

From: oldnavyjag_1979@verizon.com
Sent: Monday, November 18, 2025 9:13 AM
Re: Need some advice
To: Joseph_Shipdriver@navy.mil

Joe—good to hear from you. I can’t provide formal representation here, but I can refresh the key legal principles and practical steps you and your crew should know.

The legal landscape in brief

Some officials have pointed to an internal Office of Legal Counsel (OLC) opinion and to the laws of armed conflict (LOAC) to justify these strikes. That reasoning conflates two separate questions: (1) whether the United States is lawfully engaged in an armed conflict, and (2) whether particular uses of force are lawful under the applicable legal regime. LOAC governs conduct during an armed conflict, but it does not itself establish that an armed conflict exists. Many legal experts conclude the U.S. is not presently in an armed conflict in these operations; if that is correct, LOAC is not the governing legal framework for these strikes.

Core principles every service member should know

1. Orders are presumptively lawful. Military law generally starts from the presumption that orders directing military duties are lawful and should be obeyed. The 2024 Manual for Courts‑Martial states an order "may be inferred to be lawful, and it is disobeyed at the peril of the subordinate." That presumption governs most operational decisions.
2. The presumption does not apply to patently illegal orders. The Manual makes clear the presumption does not apply to an order that is "patently illegal," such as one that directs the commission of a crime. If an order explicitly instructs unlawful killing or other criminal conduct, the duty to obey is lost and disobedience may be justified.
3. Lawfulness is ultimately a judicial question. Whether an order is lawful is a question for judicial determination. That means internal memos, public statements, or even high‑level legal opinions are not the final word—courts decide lawfulness in the end.
4. Mistake of law and reliance on official advice are limited defenses. Rule for Courts‑Martial 916(l)(1) states "ignorance or mistake of law ordinarily is not a defense," but the commentary allows limited exceptions when a mistake stems from reliance on an authorized public official or agency. Reliance on counsel’s advice alone, however, is not a guaranteed defense. Whether reliance on an official opinion (for example, a classified legal memo) is reasonable will depend on the circumstances and remains legally unsettled.

Practical advice for commanders and crews

• Consult your JAG early. If you have concerns, seek your judge advocate’s assessment promptly. A JAG can identify legal risks and advise you on how to document and escalate concerns.
• Raise concerns up the chain. If you and your JAG judge an order may be unlawful, articulate those concerns to your superior in writing where possible and request clarification or modification. Give higher authorities the opportunity to address the issue.
• Document what you were told and why. Accurate records of orders, warning signs, and legal advice can be vital later—for defense, for whistle‑blowing protections, or for accountability at higher levels.
• Know your limited choices. If escalation fails, the practical options are to follow the order, resign your commission or post, or disobey and risk becoming a test case. Refusing an order carries serious personal and legal consequences; the decision must be made with care and legal counsel.

Historically, lower‑ranking personnel who followed orders that traced to senior policy have been less likely to face prosecution than senior leaders, who had the greatest opportunity and responsibility to challenge or stop unlawful policies. That does not eliminate moral responsibility, and it does not mean the legal risks are zero for subordinates in every case.

Broader concerns

Beyond individual legal exposure, there are significant civic and strategic risks when the armed forces are used in ways they were not designed for—whether that means applying military force in domestic roles or employing lethal force against nonmilitary vessels without clear legal authority. Such actions can invite international criticism, legal exposure, and erosion of the norms service members swear to defend.

Get some rest, say hello to Susie, and if you need legal representation, I can provide names.

Bob