Exclusive: Top lawyer for military joint chiefs told chairman that officers should retire if faced with an unlawful order

By Natasha Bertrand, Zachary Cohen, CNN

(CNN) — How should a military commander respond if they determine they have received an unlawful order?

Request to retire — and refrain from resigning in protest, which could be seen as a political act, or picking a fight to get fired.

That was the previously unreported guidance that Brig. Gen. Eric Widmar, the top lawyer for the Joint Chiefs of Staff, gave to the country’s top general, Joint Chiefs Chairman Gen. Dan Caine, in November, according to sources familiar with the discussion.

Caine had just seen a video that included six Democratic lawmakers publicly urging US troops to disobey illegal orders. He asked Widmar, according to the sources, what the latest guidance was on how to determine whether an order was lawful and how a commander should reply if it is not.

Widmar responded that they should consult with their legal adviser if they’re unsure, the sources said. But ultimately, if they determine that an order is illegal, they should consider requesting retirement.

The guidance sheds new light on how top military officials are thinking about an issue that has reached a fever pitch in recent weeks, as lawmakers and legal experts have repeatedly questioned the legality of the US military’s counternarcotics operations in the Caribbean Sea and Pacific Ocean including intense scrutiny of a “double-tap” strike that deliberately killed survivors on September 2.

Caine is not in the chain of command. But he is closely involved in operations, including those in SOUTHCOM, and is often tasked with presenting military options to the president—more so than Secretary of Defense Pete Hegseth, CNN has reported.

The Joint Staff declined to comment for this story.

Several senior officers who reportedly expressed concerns about the boat strikes, including former US Southern Command commander Adm. Alvin Holsey and Lt. Gen. Joe McGee, the former director for Strategy, Plans, and Policy on the Joint Staff, have retired early in recent months.

Widmar’s advice to Caine was meant to help inform the chairman’s discussions with senior military officials should the issue come up, the sources said. The Democrats’ video had become headline news, enraging Hegseth and sparking debates across the country.

A separate official familiar with military legal advice said that it is not uncommon for lawyers to urge servicemembers to consider leaving the force if they believe they’re being asked to do something they are personally uncomfortable with, but it’s typically handled on a case-by-case basis and tailored to the facts of the situation.

Other current and former US officials, however, including those who have served as miliary lawyers in the Judge Advocate General corps, stressed that broadly encouraging servicemembers to quietly retire — if they’re eligible — rather than voice dissent in the face of a potentially illegal order risks perpetuating a culture of silence and lack of accountability.

“A commissioned officer has every right to say, ‘this is wrong,’ and shouldn’t be expected to quietly and silently walk away just because they’re given a free pass to do so,” said a former senior defense official who left the Pentagon earlier this year.

More than a dozen senior officers have either been fired or retired early since Trump took office in January, an unusually high rate of turnover. In a speech before hundreds of general and flag officers in September, Hegseth directed officers to “do the honorable thing and resign” if they didn’t agree with his vision for the department.

But disagreeing with the direction of the military is different than viewing an order as illegal, legal experts said.

Dan Maurer, a retired Army lieutenant colonel and former JAG lawyer, said that the guidance, as described by CNN, appears to “misunderstand what a servicemember is supposed to do in the face of an unlawful order: disobey it if confident that the order is unlawful and attempt to persuade the order-giver to stop or modify it have failed, and report it through the chain of command.”

Maurer added that “if the guidance does not explicitly advise servicemembers that they have a duty to disobey unlawful orders, the guidance is not a legitimate statement of professional military ethics and the law.”

Widmar advised that an order may be unlawful if it is “patently illegal,” or something an ordinary person would recognize instinctively as a violation of domestic or international law, the sources said — the My Lai massacre in Vietnam is an oft-used example. But the guidance he provided was that an unlawful order should be met with retirement, if possible, and did not note that servicemembers have a duty to disobey unlawful orders, the sources said.

“It’s a very safe recommendation in this current political environment,” said the former senior defense official. “But that doesn’t make it the right or ethical one.”

Experts on civil military relations have previously pointed to retirement as a reasonable option for officers who object to a particular policy, while noting that it comes with its own costs.

In a September article that has been discussed amongst the Joint Staff and other senior military officials, Peter Feaver, a political science professor at Duke University, and Heidi Urben, a former Army intelligence officer and current associate director of Georgetown University’s security studies program, wrote that “quiet quitting”, or opting for retirement “allows officers with professionally grounded objections to leave without posing a direct challenge to civilian control.”

And while officers shouldn’t resign in protest or pick fights, they argued, they should “speak up” and “show moral courage” when the military’s professional values and ideals are at risk.

And they should be willing to be fired for it. “Complete silence can be corrosive to good order and discipline and signal to the force that the military’s professional values and norms are expendable,” they wrote.

Maurer, the former Army officer, said the advice to retire in the face of an unlawful order also functions to “keep that person silent in perpetuity, because as a retiree he or she remains subject to the Uniform Code of Military Justice, which criminalizes a broad range of conduct and speech that would be constitutionally protected for regular civilians.”

Those constraints have been apparent as the Pentagon has launched an investigation into Sen. Mark Kelly, a retired Navy captain and one of the Democratic lawmakers seen in the video encouraging troops to disobey unlawful orders, which prompted Caine to seek the legal advice.

As questions continue to swirl around the legality of the boat strike campaign, Widmar also advised Caine that Article II of the Constitution gives the president the authority to authorize lethal force to protect the nation, unless hostilities rise to the level of a full-blown war — in which case Congressional approval is required, the sources said.

Whether the president’s orders are legal to begin with, Widmar advised according to the sources, is a question only the Justice Department’s Office of Legal Counsel can answer, due to the executive order Trump issued in February that says the president and the attorney general’s “opinions on questions of law are controlling” on all executive branch employees — to include US troops.

The Office of Legal Counsel determined in September that it is legal for Trump to order strikes on suspected drug boats because they pose an imminent threat to the United States, CNN has reported.

Since September 2, the US military has killed at least 99 people across dozens of strikes in the Caribbean and eastern Pacific, arguing that those targeted were “narcoterrorists” that pose a direct threat to the United States. The Trump administration has also not provided public evidence of the presence of narcotics on the boats struck, nor their affiliation with drug cartels.

Lawmakers have said that Pentagon officials have acknowledged in private briefings not knowing the identities of everyone on board a vessel before striking it; instead, military officials only need to confirm that the individuals are affiliated with a cartel or criminal organization to target them.

Some members of Congress, legal experts and human rights groups have argued that potential drug traffickers are civilians who should not be summarily killed but arrested—something the Coast Guard did routinely, and continues to do in the eastern Pacific, when encountering a suspected drug trafficking vessel.

CNN’s Haley Britzky contributed to this report

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