The duty to follow lawful orders is the bedrock of martial discipline and the ability to achieve military objectives. For the U.S. armed forces, this duty is governed by the Uniform Code of Military Justice (UCMJ)—specifically Articles 90–92—and in this context, there generally is an assumption that orders are legal unless they explicitly contravene the Constitution or law. In testimony before Congress, former head of U.S. Strategic Command General Robert Kehler stressed the fact that members of the U.S. military have a responsibility to disobey illegal orders.1
1. Statement of General C. Robert Kehler, U.S. Air Force (Retired), before the Senate Foreign Relations Committee, 14 November 2017, www.foreign.senate.gov/imo/media/doc/111417_Kehler_Testimony.pdf, 5.
2. See Nuclear Operations (Joint Chiefs of Staff, 11 June 2019), https://fas.org/irp/doddir/dod/jp3_72.pdf, III-4; and Nuclear Posture Review (U.S. Department of Defense, 2018), https://media.defense.gov/2018/Feb/02/2001872886/-1/-1/1/2018-NUCLEAR-POSTURE-REVIEW-FINAL-REPORT.PDF, 23.
3. Jeffrey Lewis and Scott Sagan, “The Nuclear Necessity Principle: Making U.S. Targeting Policy Conform with Ethics & the Laws of War,” Daedalus 145, no. 4 (Fall 2016): 63.
4. Michael Matheson, “Additional Protocol I as an Expression of Customary International Law,” 9 May 1986, www.loc.gov/rr/frd/Military_Law/pdf/LOAC-Documentary-Supp-2015_Ch26.pdf.
5. Article 51: “Protection of the Civilian Population,” Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, https://ihl-databases.icrc.org/ihl/WebART/470-750065.
6. Lewis and Sagan, “The Nuclear Necessity Principle,” 63.
7. Lewis and Sagan, 64.
8. “Treaty on the Prohibition of Nuclear Weapons,” Agenda Item 9, U.N. Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading Towards Their Total Elimination, 27–31 March and 15 June–7 July 2017, New York, https://undocs.org/A/CONF.229/2017/8.
9. Newell L. Highsmith, “On the Legality of Nuclear Deterrence,” Livermore Papers on Global Security No. 6 (April 2019), 80.
10. Highsmith, “On the Legality of Nuclear Deterrence,” 80.
11. Nuclear Posture Review, 23, and Nuclear Operations, III-4.
12. Ellen Mitchell, “House Panel Shoots Down Funding, Deployment of Low-Yield Nukes in Defense Bill,” The Hill, 12 June 2019.
13. Olga Oliker and Andrey Balitskiy, “The Nuclear Posture Review and Russian ‘De-escalation’: A Dangerous Solution to a Nonexistent Problem,” War on the Rocks, 20 February 2018.
14. Highsmith, “On the Legality of Nuclear Deterrence,” 81.