Michael Schmitt, Ryan Goodman and Tess Bridgeman
The question of when it is lawful for U.S. military personnel to refuse an unlawful order has become a point of discussion in the political arena. Those conversations took a turn with the Washington Post and CNN reporting over Thanksgiving weekend that Secretary of Defense Pete Hegseth had issued a verbal order to “kill everyone” in the initial U.S. military strike on suspected drug smugglers in the Caribbean, resulting in U.S. special forces’ allegedly killing two shipwrecked survivors who were clinging to the wreckage of their vessel on Sept. 2, 2025.
In this article, we do not engage with the political discussion, but rather examine the law that applies to the alleged facts of the operation and Hegseth’s reported order. And with respect to the legal assessment of that operation, we will not be dealing with the broader question of whether the attack on the boat was unlawful as such, which it was (see articles published at Just Security by Marty Lederman, Michael Schmitt, and a podcast discussion with Tess Bridgeman, Brian Finucane, and Rebecca Ingber). Instead, we focus on a narrower aspect of the strike, the purported order to kill all aboard the vessel and the resulting second strike on the boat that killed the survivors.
As a matter of law, there are two central issues to address. The first concerns the circumstances in which military personnel have a duty to refuse to obey an order and, relatedly, whether a superior order can relieve them of criminal responsibility. The second is whether the orders in this case triggered that duty or provided those involved a defense. As both issues are context-dependent, we begin with the facts.
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