CREATORS
February 17, 2026
Befehlsnotstand
is a word worth noting. The word is of German origin. The legal term refers to
soldiers who obey illegal orders because they are afraid of the consequences if
they do not obey. The defense didn't work in Nuremberg after World War II and won't
work today.
In a weird
twist on the concept of befehlsnotstand, last fall, Sen. Mark Kelly and five
other Democratic lawmakers released a video advising U.S. military personnel
that they "can refuse illegal orders."
Kelly was
joined by Senator Elissa Slotkin and Reps. Jason Crow, Chrissy Houlahan, Maggie
Goodlander, and Chris Deluzio — all with military or intelligence backgrounds.
They
emphasized, "Our laws are clear. You can refuse illegal orders,"
while urging troops to uphold their oath to the Constitution. This statement
came amid concerns regarding potential unlawful orders by the Trump
administration, particularly from Secretary of War Pete Hegseth.
This comes
into focus, yet again, as the Trump administration, through the U.S. military,
carried out another deadly strike on a vessel accused of trafficking drugs in
the Caribbean Sea.
According
to ABC News, the U.S. Southern Command announced that the boat "was
transiting along known narco-trafficking routes in the Caribbean and was
engaged in narco-trafficking operations." It said the strike killed three
people. A video linked to the post shows a boat moving through the water before
exploding in flames.
This most
recent attack raises the death toll from the Trump administration's strikes on
alleged drug boats to 133 people in at least 38 attacks carried out since early
September in the Caribbean Sea and eastern Pacific Ocean.
Under both
U.S. and international law, it is flagrantly illegal to use the military to
kill civilians suspected of only crimes. The United States is not in an armed
conflict with anyone in Latin America. That means the people on these boats are
civilians. Civilians, including those suspected of smuggling drugs, are not
lawful targets.
The Trump
administration countered by saying the cartels behind the drug trafficking are
terrorists and, therefore, the attacks are legal. The Justice Department's
Office of Legal Counsel (OLC) has issued a "secret" memo to legally
justify the US military's strikes on these boats and their occupants.
This memo
reportedly details the Trump administration's legal reasoning. Initially, the
strikes are lawful because the United States is in an "armed
conflict" with unspecified drug cartels, and the officials who have
authorized or carried out these strikes should not be prosecuted for murder or
other crimes, reported the American Civil Liberties Union. Even as legal
experts from across the political spectrum have challenged these claims, the
administration has refused to release the OLC memo or any related records.
To
complicate things even further, on at least one occasion, two survivors of a
boat attack, considered shipwrecked, were killed by a second attack. In
addition, reports from January indicate that the U.S. military has used
disguised aircraft, designed to look like civilian planes, to attack suspected
drug-smuggling boats in the Caribbean. This tactic has raised serious legal and
ethical questions regarding "perfidy," which is considered a war
crime under international law, according to The Guardian.
Under
Article 92 of the Uniform Code of Military Justice (UCMJ), service members are
legally obligated to obey only lawful orders. According to the military website
MyBaseGuide.com, an illegal order is a directive that violates a law,
regulation, or the Constitution.
Examples
of illegal orders include committing a crime, engaging in unethical acts, or
violating human rights standards. The UCMJ requires military personnel to
disobey patently illegal orders, such as those directing war crimes or
"targeting civilians."
International
Courts have established that befehlsnotstand is not a defense. The defense was
unsuccessful for senior members of Adolph Hitler's leadership during the
post-World War II Nuremberg trials and likely would be unsuccessful today.
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book, "The Executioner's Toll," 2010, was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino
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