What the Military Law of Obedience Does (and Doesn’t) Do

Author(s): 
Christopher Fonzone
Publication Date: 
March 19, 2018

Commentators have in recent months asked what can be done if the president orders the military to do something its leaders consider deeply unwise or even illegal. Is there a way to stop a presidential directive to waterboard alleged terrorists? Can the military disregard an order to strike China with nuclear weapons? These questions, which once seemed only theoretical, today seem more pressing. In this Issue Brief, Christopher Fonzone, who served in the Obama Administration as Deputy Assistant to the President, Deputy Counsel to the President, and National Security Council Legal Adviser, places such questions in the context of a body of law called the Law of Obedience, which is rooted in our long and important tradition of civilian control of the military. Distinguishing between illegal orders, which an officer must disobey, and those that may simply be unwise, which an officer is obligated to carry out, Fonzone advises that in the latter case “the best hope is for other institutional actors to exercise their constitutional authorities to change the Nation’s course or do what they can to convince the president of the rightness of their views.” The Law of Obedience “most distinctly is not…a tool for saving the Nation from simply unwise” orders – that is a job, he explains, left in the hands of the electorate.