Military Law Directory

Yes, and this defense rests on a point built into the offense itself: the crime of disobedience requires a lawful order. Articles 90 and 92 of the UCMJ punish disobeying or failing to obey, but they reach only lawful orders, so if the order was not lawful, an essential element is missing. That is a different posture from defending someone who carried an unlawful order out; here, the service member refused, and the order’s unlawfulness is the shield.

Lawfulness is an element, not an excuse

The structure matters. Because Article 90 (willfully disobeying a superior commissioned officer) and Article 92 (failure to obey an order or regulation) criminalize disobedience of a lawful order, the government must establish that the order was lawful. When the defense shows the order was not lawful, it is not pleading an excuse, it is showing the offense was never complete. The fact that an order is unlawful provides a defense to a charge of disobeying it.

The presumption that makes it hard

The catch is a strong starting presumption: orders are presumed lawful, and a service member generally must obey. The law does not invite soldiers to second-guess routine orders. An order is unlawful when it violates the Constitution, U.S. law, or military regulations, or directs the commission of a crime, but the bar to treat refusal as justified is high.

The operative standard is “manifestly unlawful”, the illegality must be plain and obvious on its face. Orders to target civilians, torture detainees, falsify official records, or commit plainly criminal acts cross that line. Ambiguous or merely questionable orders generally do not, which is why unilateral refusal carries real risk.

The practical reality

Because of that presumption, the practical advice is cautious. A service member who doubts an order’s legality should, where possible, seek clarification through the chain of command and consult legal counsel promptly, rather than simply refusing, because if a court later finds the order was lawful, the disobedience stands. The defense is genuine, but it succeeds on clearly unlawful orders, not on disagreement.

Consider a member who refused an order they believed was illegal: because lawfulness is an element of the offense, the attorney argues a manifestly unlawful order cannot support a disobedience conviction.

The throughline is that questioning an order’s legality is a real defense because lawfulness is part of the offense. Orders are presumed lawful and must usually be obeyed, but a manifestly unlawful order, one plainly illegal on its face, cannot be the basis of a disobedience conviction, which is exactly the ground this defense stands on.

Frequently Asked Questions

Is disobeying an order always a crime?
No. Articles 90 and 92 punish disobeying a lawful order, so if the order was not lawful, an element of the offense is missing and the unlawfulness provides a defense.

When is an order considered unlawful?
When it violates the Constitution, U.S. law, or military regulations, or directs the commission of a crime, and to justify refusal the illegality generally must be manifestly unlawful, plain and obvious on its face.

What should a service member do if they doubt an order’s legality?
Where possible, seek clarification through the chain of command and consult legal counsel promptly, because orders are presumed lawful and refusing a merely questionable order carries significant risk.

This article is general information about the lawfulness of orders. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing this situation should consult a military attorney before acting.

Sources

• Legal Information Institute, 10 U.S. Code § 890 (Art. 90, Willfully disobeying superior commissioned officer)
• Legal Information Institute, 10 U.S. Code § 892 (Art. 92, Failure to obey order or regulation)
• Joint Service Committee on Military Justice, Manual for Courts-Martial (Punitive Articles)

Yes, and a jurisdictional challenge is powerful because it goes to the court’s very authority to act, not just to the merits of a charge. A court-martial must have two kinds of jurisdiction, and a defect in either can defeat the prosecution. But one common assumption about military jurisdiction, that the offense must be connected to military service, is no longer the law.

Two kinds of jurisdiction

A court-martial needs both:

• Personal jurisdiction, authority over the person of the accused, which depends on the accused being a member of the armed forces subject to the UCMJ.
• Subject-matter jurisdiction, authority over the offense charged.

A challenge attacks one of these, arguing the court has no power to try this person or this offense.

The status test: Solorio

Here is the point that surprises many people. Under Solorio v. United States (1987), the jurisdiction of a court-martial depends solely on the accused’s status as a member of the armed forces, not on whether the offense was “service-connected.” Solorio overruled the earlier O’Callahan decision, which had required a service connection. So a court-martial can try a service member for an offense even if it was committed off-base and off-duty with no link to military duties, so long as the person had the requisite military status. The test is status, not the nature of the crime.

That reality shapes the challenge: arguing “this had nothing to do with my service” generally will not defeat jurisdiction after Solorio.

Where a challenge can succeed

Because jurisdiction turns on status, the strongest challenges target that:

• Lack of personal jurisdiction, for example, that the person was not actually in a status subject to the UCMJ at the relevant time, or had been validly discharged, so they were not a member when jurisdiction had to exist.
• Defects in how jurisdiction attached or continued, depending on the facts of enlistment, service, and separation.

These are factual, status-based arguments, and where they hold, the court simply lacks authority to proceed.

If a member commits an offense off base and off duty, the court-martial still has jurisdiction under the status test, so a challenge focuses on the member’s status rather than the offense’s connection to service.

The practical upshot is that jurisdiction is about the court’s power, anchored to status. A court-martial needs personal and subject-matter jurisdiction, Solorio makes military status, not service-connection, the test, and a viable challenge therefore focuses on whether the accused actually held the status the UCMJ requires.

Frequently Asked Questions

Must a charged offense be connected to military service?
No. Under Solorio v. United States, court-martial jurisdiction depends solely on the accused’s military status, not on whether the offense was service-connected; the earlier service-connection requirement was overruled.

What two kinds of jurisdiction must a court-martial have?
Personal jurisdiction over the accused, which depends on military status, and subject-matter jurisdiction over the offense charged.

When can a jurisdictional challenge succeed?
Often when the accused lacked the required military status, for example, was not actually subject to the UCMJ at the relevant time or had been validly discharged, so the court had no authority over the person.

This article is general information about court-martial jurisdiction. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel.

Sources

• Justia, Solorio v. United States, 483 U.S. 435 (1987)
• U.S. Court of Appeals for the Armed Forces, Daily Journal Digest: Jurisdiction, Subject Matter
• Legal Information Institute, 10 U.S. Code § 802 (Art. 2, Persons subject to this chapter)

Military medical research operates under the same human-subjects protections that govern civilian science, plus a few rules that are stricter inside the Defense Department. An attorney guiding the ethics of such research works from a defined regulatory framework rather than general principles, and the framework’s core, consent and oversight, is where most questions land.

The governing framework

DoD-supported research involving human subjects is governed by the Common Rule, codified for the Defense Department at 32 CFR Part 219, and implemented through DoD Instruction 3216.02. The Common Rule sets the basic structure: institutional review board (IRB) review, informed consent, and assurances of compliance. These are not optional features; they are the conditions under which human-subjects research may proceed.

Informed consent, with a stricter military limit

Informed consent is the ethical center, and here the military rule is more demanding than the baseline. DoD-appropriated funds generally may not support research involving a human subject without prior informed consent, and 10 U.S.C. § 980 limits when informed consent may be waived for research using DoD funds, a tighter standard than applies to some civilian research.

The content of consent matters too. Informed consent must genuinely facilitate understanding, not merely list facts, and critically, it may not include exculpatory language through which a subject waives legal rights or releases the investigator, sponsor, or institution from liability for negligence. A consent form cannot be turned into a liability shield.

The role of the IRB

Oversight runs through the institutional review board. DoD institutions must use an IRB consistent with the Common Rule’s provisions, and the board reviews research to ensure it meets the ethical and regulatory standards before and as it proceeds. The IRB is the structural check that keeps individual researchers from being the sole judges of their own studies.

Where the attorney guides

An attorney advising on research ethics helps researchers and institutions navigate these requirements: ensuring consent is properly obtained and lawfully drafted, understanding the narrow limits on waiving consent under 10 U.S.C. § 980, and meeting IRB and Common Rule obligations. The work is preventive, getting the ethics and the paperwork right before the research begins, because a consent or oversight failure is far harder to fix afterward.

When a study involves human subjects, the attorney checks informed consent and the stricter statutory limit on waiving it, since military research carries guardrails beyond the ordinary civilian rule.

The bottom line is that ethical military medical research is governed by clear rules, the Common Rule, DoD Instruction 3216.02, and the consent limits of 10 U.S.C. § 980, and an attorney’s guidance is the disciplined application of those rules so that the science stays within them.

Frequently Asked Questions

Is informed consent always required in DoD research?
It is the rule, and 10 U.S.C. § 980 limits when informed consent may be waived for research using DoD funds, a stricter standard than applies to some civilian research.

What is an institutional review board?
A board that reviews research involving human subjects to ensure it meets ethical and regulatory standards before and as it proceeds.

Can a consent form make a subject waive their legal rights?
No. Informed consent may not include exculpatory language through which a subject waives legal rights or releases the investigator or institution from liability for negligence.

This article is general information about human-subjects research ethics in the Defense Department. It is not legal advice and does not create an attorney-client relationship. Regulations are detailed and can change. This article describes the framework in general terms only.

Sources

• DoD Instruction 3216.02, Protection of Human Subjects
• eCFR, 32 CFR Part 219, Protection of Human Subjects
• HHS, Federal Policy for the Protection of Human Subjects (Common Rule)

A general court-martial is the most serious level of military trial, carrying the most severe potential consequences, so preparation for one is comprehensive and staged. It is not a single push before trial but a sequence of phases, each with its own work. Understanding that sequence is how an attorney organizes a defense that is ready when the trial begins.

The procedural road to trial

A general court-martial follows a defined path, and preparation tracks it:

• The Article 32 preliminary hearing. Before charges may be referred to a general court-martial, a preliminary hearing under Article 32 is generally required. This is an early, critical opportunity: the defense can hear and probe the government’s evidence, test witnesses, and shape the case before referral.
• Referral and arraignment. The convening authority refers the charges, and the accused is arraigned.
• Motions and the trial itself. Pretrial motions are litigated, then the trial proceeds through forum selection, the presentation of evidence, findings, and, if needed, sentencing.

Knowing where the case sits on this road tells the attorney what preparation is due next.

The core preparation workstreams

Across those phases, the defense runs several parallel lines of work:

• Investigation and discovery. Independently developing the facts and obtaining the government’s evidence, the foundation everything else is built on.
• Witnesses and experts. Identifying, securing, and preparing fact witnesses and any necessary experts.
• Motions. Litigating threshold issues, suppression of unlawfully obtained evidence, jurisdiction, and others, that can shape or end the case.
• The theory of the case. Building a coherent narrative that ties the evidence, the cross-examinations, and the argument together.

These workstreams advance together, because a strong trial is the product of all of them, not any one.

Pulling it together

As trial nears, preparation converges: the theory is set, witnesses are ready, exhibits are organized, cross-examinations are planned, and the order of proof is mapped. The Article 32 work and the motions practice feed directly into how the trial will be tried.

Consider a serious charge headed for a general court-martial: the attorney uses the Article 32 hearing to probe the government’s evidence early, then builds the investigation, motions, and theory toward trial.

The bottom line is that general court-martial preparation is staged and comprehensive. It follows the road from the Article 32 hearing through referral, motions, and trial, while parallel workstreams, investigation, discovery, witnesses, and a unifying theory, are built and then converged, so the defense meets the most serious forum fully prepared.

Frequently Asked Questions

What is the Article 32 hearing?
A preliminary hearing generally required before charges can be referred to a general court-martial, giving the defense an early opportunity to probe the government’s evidence and test witnesses.

What are the main areas of trial preparation?
Investigation and discovery, identifying and preparing witnesses and experts, litigating pretrial motions, and developing a coherent theory of the case, all advancing in parallel.

Why is a general court-martial prepared so comprehensively?
Because it is the most serious level of court-martial with the most severe potential consequences, so preparation spans the full procedural sequence and every workstream that supports the defense.

This article is general information about general court-martial preparation. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel promptly.

Sources

• Legal Information Institute, 10 U.S. Code § 832 (Art. 32, Preliminary hearing)
• Joint Service Committee on Military Justice, Manual for Courts-Martial (Rules for Courts-Martial)
• Congress.gov, Military Courts-Martial Under the Military Justice Act of 2016 (CRS R46503)

In a court-martial the “jury” is the panel of members, and a point of procedure shapes everything: the military judge, not the attorneys, actually instructs the members. So an attorney does not deliver instructions; the attorney shapes them, by proposing the ones that favor a fair reading of the case and objecting to the ones that do not. Preparing instructions is really preparing requests and objections.

What the instructions must contain

The judge’s instructions on findings carry mandatory content, and knowing it tells counsel what to work with. The members must be told:

• The elements of each offense that must be proved beyond a reasonable doubt.
• How they may consider the evidence presented.
• The voting procedures to follow in closed deliberations.

And the instructions must close with mandatory advice on the burden of proof, reasonable doubt, and the presumption of innocence. These required pieces form the backbone that every set of instructions must include.

The standard source, and where counsel adds value

Military judges work from a standard reference, the Military Judges’ Benchbook (Department of the Army Pamphlet 27-9), which contains pattern instructions: the elements of offenses and the procedural and burden-of-proof language. Because the pattern instructions are well established, an attorney’s preparation focuses on the case-specific additions, the matters that the benchbook does not supply on its own:

• Defenses raised by the evidence. When the record raises an affirmative defense, the judge must generally instruct on it, so counsel identifies it and requests the instruction.
• Lesser included offenses, special evidentiary cautions, and other tailored points that fit the particular facts.

Under the rules, instructions on findings include such additional explanations as are properly requested by a party or that the judge decides to give. That request mechanism is the attorney’s main lever.

How counsel actually prepares

Where the evidence raises a defense the standard instructions omit, the attorney requests a tailored instruction, since the judge gives the instructions but counsel shapes them.

The core point is that preparing panel instructions is advocacy by precision. The judge gives the instructions and a benchbook supplies the standard language, so the attorney’s job is to ensure the elements, the reasonable-doubt framework, and every defense and nuance the evidence raises are correctly and fairly put before the members.

Frequently Asked Questions

Who actually gives the instructions to the panel?
The military judge instructs the members. The attorneys prepare and request instructions and object to improper ones, but they do not deliver the instructions themselves.

What must the instructions include?
The elements of each offense to be proved beyond a reasonable doubt, how to consider the evidence, voting procedures, and mandatory advice on the burden of proof, reasonable doubt, and presumption of innocence.

Where do the standard instructions come from?
From the Military Judges’ Benchbook (DA Pam 27-9), with counsel requesting case-specific additions such as instructions on defenses raised by the evidence.

This article is general information about court-martial instructions. It is not legal advice and does not create an attorney-client relationship. Application is fact-specific and the law can change. Anyone facing a court-martial should consult qualified defense counsel.

Sources

• U.S. Court of Appeals for the Armed Forces, Daily Journal Digest: Merits Instructions
• Joint Service Committee on Military Justice, Manual for Courts-Martial (Rules for Courts-Martial)
• Department of the Army Pamphlet 27-9, Military Judges’ Benchbook