Dear Service Members: Don’t Risk Prison by Following Unlawful Orders from Pete Hegseth

When I served as an infantryman in the U.S. Army, leaders drilled a few fundamental rules into us: never abandon your post, keep your head on a swivel, never leave a fallen comrade behind — and understand that firing on someone who has already been neutralized (a so-called “double tap”) can land you in prison. I deployed during the Iraq troop surge at age 20 with only a high school diploma; I was no legal scholar, but I was repeatedly briefed that unjustified violence is illegal, that every use of force must be justified, and that we have a duty to refuse unlawful orders.

The current administration, however, has shown either confusion about or contempt for those principles. Defense Secretary Pete Hegseth has publicly dismissed typical rules of engagement as restraints, and in the previous term he urged pardons for several adjudicated or accused war criminals. Now, what began as occasional pardons appears to have shifted toward a policy that tolerates extrajudicial killings.

Since Sept. 2, the administration has authorized strikes on multiple small vessels in the Caribbean Sea and eastern Pacific Ocean that have killed at least 83 people. The United States is not at war with those who were killed. Though the president has labeled Venezuelan drug traffickers as terrorists and treated them as enemy combatants, Congress has neither declared war on Venezuela nor authorized the use of force against drug smugglers. The administration’s public statements and the resulting strikes therefore look like extrajudicial killings rather than lawful acts of war.

Reporting about the first incident on Sept. 2 indicates two people survived the initial strike. Under the Uniform Code of Military Justice (UCMJ) and international law, when wounded survivors remain, the military must secure, treat, and—if appropriate—take them into custody. Instead, Admiral Mitch Bradley reportedly ordered a second strike to finish off the survivors, allegedly invoking Hegseth’s directive to "kill them all." That alleged sequence raises both legal and moral alarms.

I think we're just going to kill people that are bringing drugs into our country. OK? We're going to kill them, you know, they're going to be like, dead.

SEDITIOUS BEHAVIOR, punishable by DEATH!

When lawmakers reminded service members of their duty to refuse "patently unlawful orders," the president denounced them with extreme language. The administration has since tried to reassure the public that presidential commands would be lawful. A recent Supreme Court decision described aspects of presidential immunity for official acts, but that protection does not extend to Defense Secretary Hegseth, Admiral Bradley, other officers in the chain of command, or the individual who pulls the trigger. Any of them could be investigated or prosecuted by a future administration.

I say this plainly as both a lawyer and a former enlisted soldier: U.S. service members cannot rely on "just following orders" as a defense. Before World War II, some militaries accepted a defense of superior orders, but the Nuremberg tribunals rejected that notion and established internationally that obeying an unlawful order does not absolve individual responsibility for atrocities. The UCMJ codified the same principle: a service member must refuse an order that is "patently unlawful." Since the 1950s recruits have been trained on that duty.

Those rules are enforced in practice. Service members have been and continue to be jailed for illegal uses of force; the "just following orders" defense has never saved them. During the Korean War, Airman First Class Thomas Kinder executed a detainee and later claimed his commander ordered the killing; he was convicted and sentenced to life. After the My Lai massacre in Vietnam, 2nd Lt. William Calley was tried and convicted for murder; the appeals court affirmed his conviction. Following the abuses at Abu Ghraib prison, multiple soldiers were convicted despite some asserting they acted on orders.

Service members do not choose their commanders, the political climate, or which pundits influence policy. They are the ones who will face courts-martial, federal indictments, sleepless nights, and long-term moral consequences. They are the ones who will someday sit across from a lawyer and ask, "Sir, do you think I'll go to prison?"

We are not debating abstract policy. We are talking about real people with families. Rules of engagement exist because unjustified killings undermine the mission, damage the nation’s standing, and are morally wrong. One of the best decisions I made in Iraq was to hold my fire. The man I thought might be driving a vehicle-borne improvised explosive device was simply tired and inattentive. Because I refrained, both of us went home that night. I did not have to live with killing someone who was trying to live his life.

To every service member, commander, and political leader: committing a war crime or an extrajudicial killing outside a declared war can lead to prosecution — if not under this administration, then under a future one. Do not condemn yourself to prison and a lifetime of guilt for the political decisions of others. If an order is patently unlawful, refuse it.