Members of the naval service, like military members of all nations, must obey readily and strictly all lawful orders issued by a superior. Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing of a noncombatant or the torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict.  [emphasis in original]

Members of the naval service, like military members of all nations, must obey readily and strictly all lawful orders issued by a superior. Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing or torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict.  [emphasis in original]

A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders. 

For the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness …

Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it can scarcely fail to be held justified by a military court.  [emphasis in original]

To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. The so-called “Nuremberg defense” applies only to individual acts committed in wartime; it does not apply to the Government’s decision to wage war. See United States v. Berrigan, 283 F. Supp. 336, 341 (D.Md. 1969), aff’d sub nom. United States v. Eberhardt, 417 F.2d 1009 (4th Cir. 1969), cert. denied, 397 U.S. 909 (1970). The duty to disobey an unlawful order applies only to “a positive act that constitutes a crime” that is “so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.” United States v. Calley, 22 U.S.C.M.A. 534, 543, 48 C.M.R. 19, 28 (1973), citing Lambert v. California, 355 U.S. 225, 228, 2 L. Ed. 2d 228, 78 S. Ct. 240 (1957), and W. Winthrop, Military Law and Precedents 296–97 (2d ed. 1920 Reprint). CPT Huet-Vaughn tendered no evidence that she was individually ordered to commit a “positive act” that would be a war crime.