Senator Mark Kelly (D-AZ) actually didn’t go far enough when he told members of the U.S. military: "Our laws are clear. You can refuse illegal orders." In fact, as fellow armed services veteran Rep. Chris Deluzio (D-PA) emphasized in the same video, service members "must refuse illegal orders."

Under the provisions of the Uniform Code of Military Justice (UCMJ), which was passed by Congress after the post-WWII Nazi tribunals at Nuremberg, the "I was just following orders" defense was officially discredited for the U.S. military as well. All members of the U.S. armed forces have, as "reported by The Military Times, a duty to disobey "illegal" orders. Any member of the military who carries out an "illegal" order, The Military Times observed, may become the subject of a court martial. Depending on the nature of the illegal order, a member of the military who obeys an illegal order could later be tried for crimes against humanity by an international tribunal.

Neither the UCMJ, nor any existing case law, carves out an exception for "illegal" orders issued by the Commander in Chief. Thus, Donald Trump's effort to label an accurate quote of military law as "sedition" and the "announcement" by Trump's renamed "Department of War" that it is investigating Kelly, are patently absurd.

The more serious questions are: (1) Did Trump's call for Kelly and the five other Democratic members of Congress who publicly called upon members of the military to comply with their "duty to disobey illegal orders" to be "hanged" amount to a criminal violation of 18 U.S. Code §115, which makes it a crime to threaten to assault a member of Congress in retaliation for their performance of their official duties --- (here using their office to remind members of the military of their obligations under the UCMJ)? And (2) whether his amplification of calls for them to be "hanged" amounts to a high crime that warrants impeachment…

Courts: Trump issued "illegal" orders

When Press Secretary Karoline Leavitt, at a White House Press Briefing, attempted to gaslight in her response to questions about President Trump's incendiary posts, she first claimed Congressional Democrats had called upon troops to disobey legal orders. When a member of the press corps correctly pointed out that the Congress members on the video only referenced the duty to disobey "illegal" orders, Leavitt insisted the courts have found all of Trump's orders to be "legal."

That isn't even close to being accurate.

The U.S. Supreme Court and appellate courts have stayed injunctive relief, but factual and legal findings of unlawful orders by the Administration have not been overturned. For example, US District Court Judge Charles Breyer ruled that Trump's deployment of both the National Guard and U.S. Marines to police the streets of Los Angeles violated the Posse Comitatus Act. The 9th Circuit issued a stay of his preliminary injunction, but the determination that the deployment violated federal law has not been overturned.

For those now serving, the question of the legality of simply deploying to one of our nation's cities is probably not weighty enough to test whether it was the type of illegal order that must be disobeyed. On the other hand, consider the claim that Trump, during his first term, asked General Mark Milley, "Why can't we just shoot them [peaceful U.S. protesters] in the legs?" Had Trump presented that as an order can there be any doubt that Milley would have had a duty to disobey?

The most serious illegality issue, at the moment, however, pertains to what is now taking place in the Caribbean.

As recounted by the BBC, Moreno Ocampo, a former prosecutor with the International Criminal Courts, argued that US airstrikes, that have already killed over 75 people in the Caribbean, amount to a "crime against humanity" that violates International Law. Setting aside the fact that the Trump regime is playing judge, jury and executioner with respect to alleged narcotics trafficking, Campo notes: "These are criminals, not soldiers. Criminals are civilians." What the Trump regime is engaged in is a "systematic attack against civilians during peacetime."

Ocampo's views align with the warnings reportedly provided to the Trump Administration by its own U.S. military lawyers.

The indiscriminate nature of what an International Court would regard as mass murder on the high seas is reflected by the fact that one of the victims killed by US airstrikes was a fisherman from Colombia, who obviously was not part of an allege drug smuggling scheme.

What is taking place in the Caribbean underscores the timeliness of the videotape warning offered by Democratic Senators and House Members. Unlike the President, who can at least try to hide behind the controversial U.S. Supreme Court decision to invent Presidential immunity for official acts, members of the U.S. military who obey an illegal order from the Commander in Chief to carry out mass murder on the high seas could find themselves on the wrong end of a prosecution for committing crimes against humanity.

UPDATE, 12/19/25 In what appears to be an instance of cold and calculated murder, two survivors, while clinging to a boat that was struck by a U.S. missile were killed by U.S. forces after Defense Secretary Pete Hegseth said "kill them all", The Washington Post reported. U.S. Navy Admiral Mitch Bradley ordered the second strike to comply with Hegseth's "kill them all" command.

Under the principle of "Command Responsibility", which, as we previously reported, was utilized by the 1948 Hong Kong War Tribunal to impose a life sentence on a Japanese general even though he did not take part on the torture my father and other prisoners were subjected to, both Defense Secretary Hegseth and Admiral Bradley could potentially be tried for the murder of those two helpless survivors. Any member of the U.S. military who carried out what was likely an "illegal" order to kill the two survivors could potentially become defendants in an international tribunal as well.

Former federal prosecutor, Andrew McCarthy, said the second attack was "at best" a war crime under federal law. McCarthy believes that the boat strikes were unlawful to begin with because "the boat operators pose no military threat to the United States, and...narcotics trafficking is defined in federal law as a crime rather than [a] terrorist activity, much less an act of war."

                 

Article Categories: Impeachment, Accountability, Dept. of Justice, Dept. of Defense, Democrats, U.S. Supreme Court, Donald Trump, Mark Esper, Mark Milley, Mark Kelly, Karoline Leavitt, Int'l Criminal Court