When can a member of the military disobey an order?

The Pentagon says it is investigating former Navy captain and current Arizona Sen. Mark Kelly for a video he and other lawmakers with military or intelligence backgrounds posted to social media telling lawmakers to disobey "illegal orders."

Kelly says he was just repeating what's in the Uniform Code of Military Justice.

Retired Maj. Gen. Steven Lepper served as a military lawyer and judge, and was deputy Judge Advocate General, or JAG, for the U.S. Air Force. He's a member of a JAG working group that believes that an investigation of Kelly is wrong.

The group also concluded that the Pentagon has issued illegal orders in attacks on alleged drug boats off Venezuela.

A military has to function like a watch. Won't there be disorder and chaos within the ranks if every service member just decided to challenge what I'm being asked to do?

“You're absolutely right, and that's why, as I said, there is a strong presumption in military law that all orders are lawful. And it is only the exception when an order is patently or manifestly unlawful does a military member have the obligation to disobey it."

But if someone feels that something is unlawful, they can't just do it mid-flight, right? 

“Well, it depends on the order and it depends on the context. Ideally, the order will be given with enough time for the military member to question it if he or she believes that it's unlawful, and that questioning process will elevate all the way up to the point where senior officers can perhaps push back if they agree that it's unlawful.

“If there's a tactical situation, if you're on the battlefield in the heat of battle, then you have far less time to question whether there's an unlawful order. And again, the presumption weighs very heavily in favor of complying."

The JAG working group you're part of put together a sample legal analysis concluding that these Pentagon boat strikes off of Venezuela are illegal. You conclude it's murder, and if you follow that logic, it would seem that you are also recommending that troops could object to taking part. Do you think that you're putting yourselves in the same position that these Democratic lawmakers have? 

“Well, yes, we've taken great care not to suggest that military members should disobey any particular order. What we are saying is that we believe that there are certain military operations that do not comply with domestic or international law. We have said that orders to conduct or prosecute those operations may be unlawful. But we're not suggesting that military members should disobey any particular order."

This interview was edited for clarity.

Lynn Menegon produced and edited this interview for broadcast with Michael Scotto. Scotto adapted it for web.