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 hi