Court-Martial Trial Practice Blog
Military commanders rely on obedience to accomplish missions, protect forces, and enforce discipline. Servicemembers understand that duty demands compliance with lawful orders. But the law does not allow blind obedience. When an order crosses the boundary into criminality, a servicemember must refuse it—even in combat. The Court of Appeals for the Armed Forces sharpened this principle in United States v. Smith, 68 M.J. 316 (C.A.A.F. 2010), which now stands as the most rigorous and up-to-date analysis of the superior-orders doctrine under the Uniform Code of Military Justice.
Smith does more than restate old rules. It clarifies how the UCMJ defines illegal orders, explains when obedience becomes criminal, and integrates the lessons of Calley, Rockwood, and New into one modern framework. The case now guides trial litigation, appellate review, and operational training across the force.
The Legal Foundation: Articles 90–92 and R.C.M. 916(d)
Articles 90, 91, and 92 of the UCMJ directly regulate obedience. These articles require servicemembers to follow lawful orders and punish those who intentionally disobey them. R.C.M. 916(d) places a critical limit on this obligation: a servicemember may not rely on obedience to defend conduct that follows a manifestly illegal order.
This rule reflects American criminal law and international law. After Nuremberg, the United States adopted the principle that no soldier may justify a clearly unlawful act simply because a superior directed it. The Manual for Courts-Martial codifies this obligation.
United States v. Smith: The Court Defines the Modern Rule
In Smith, the accused claimed he acted under orders from a superior NCO. The military judge rejected a superior-orders instruction, and CAAF seized the opportunity to restate and refine the doctrine. The Court established three clear rules that now anchor the modern analysis.
1. The law rejects obedience as a defense when an order is manifestly illegal.
CAAF reaffirmed the standard that Calley articulated during the My Lai prosecutions: an order is illegal when “a person of ordinary sense and understanding would know it to be illegal.” Smith, 68 M.J. at 320–21.
If the illegality is obvious, the servicemember must refuse the order. Obedience becomes criminal.
2. The law evaluates illegality objectively.
CAAF rejected subjective theories or “gut instinct” standards. The Court instructs judges and panels to ask whether a reasonable servicemember would recognize the illegality. If yes, the defense collapses.
3. When the law does not clearly prohibit the act, obedience may still matter.
A servicemember who reasonably relies on ambiguous or unclear orders may:
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negate mens rea,
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support a duress claim under R.C.M. 916(h), or
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offer obedience as significant mitigation at sentencing.
Smith thus creates a balanced rule: it preserves command authority while recognizing that modern operations often involve complex, fast-moving, and legally ambiguous situations.
Why Smith Stands as the Leading Case
A. The Court unifies decades of precedent.
Earlier cases addressed discrete issues:
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Calley addressed war-crime liability,
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Rockwood confronted disobedience during humanitarian operations in Haiti, and
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New analyzed uniform-related orders.
Smith pulls these strands together and produces a single, comprehensive doctrine.
B. The Court anchors the rule in practical judgment.
The decision protects servicemembers who act reasonably under difficult circumstances. At the same time, it prevents anyone from hiding behind an order when the illegality leaps off the page.
C. The decision guides real-world operations.
Rules of engagement, target development, cyber operations, detainee handling, and intelligence activity all involve situations where servicemembers must assess legality in real time. Smith supplies that framework.
How to Identify Lawful and Unlawful Orders
The superior-orders doctrine plays its most decisive role in three categories of cases:
1. War Crimes and LOAC Violations
Orders to target civilians, mistreat detainees, fabricate battle damage assessments, or retaliate against non-combatants fall squarely into the “manifest illegality” category. A servicemember must refuse them.
2. Operational and Administrative Misconduct
If a commander instructs a subordinate to falsify documents, destroy evidence, manipulate training records, or seize property unlawfully, the illegality normally appears obvious.
3. Orders that Conflict with Constitutional Rights
The military may not direct compelled self-incrimination, unconstitutional searches, or unlawful suppressions of speech. A servicemember has a duty to refuse orders that clearly violate constitutional protections.
In each category, the servicemember must identify obvious illegality and act accordingly.
Practical Guidance for Servicemembers
Drawing on Smith, a servicemember can follow three practical steps:
1. Refuse any clearly illegal order.
If the order involves obvious criminal activity, the servicemember must stop immediately. The law will hold obedience criminal.
2. Seek clarification when legality appears uncertain.
A request for clarification, a supervisory review, or a written order can protect the servicemember and help resolve ambiguity before misconduct occurs.
3. Obey orders that appear lawful.
The military justice system presumes legality unless the illegality stands out. Parker v. Levy, 417 U.S. 733 (1974), reinforces this duty.
The Enduring Impact of Smith
Smith delivers a modern, coherent, and operationally useful rule. It resolves doctrinal inconsistencies, guides command training programs, and shapes how trial judges instruct panels. Appellate courts across the services regularly cite it when they review orders-related misconduct.
The case makes one fundamental point unmistakable: obedience does not override the law. Military authority carries great weight, but it operates within legal boundaries. Servicemembers remain individually responsible for rejecting manifestly illegal orders, and Smith explains exactly where the law draws that line.