To those of us who did not have the experience of serving as a Judge Advocate General officer in the military, the video made by members of Congress may seem like an invitation for soldiers and sailors to decide for themselves what orders are illegal and should not be carried out. David French, however, was a JAG and explains that, while the video may not have provided a good explanation, the procedures and law are not quite so mysterious.

Notably, Trump, who called it seditious and punishable by death, was neither a member of the military nor a lawyer. French began by giving two examples, the order to bomb Iraqi insurgents in a farmhouse and the order to kill a prisoner who committed an atrocity. As to the first, David calls the question one of “distinction.”

You’ve been briefed over and over again about the law of war, and you’re worried that there might be civilians in the house. You can’t see any, but you don’t know for sure. A legal principle called “distinction” requires you to discriminate between military and civilian targets, and you’re worried about who might be behind those walls.

If you, the person dropping the bomb, have concerns, you question whether there are civilians in the house.

The response is immediate. “We’ve got the JAG (military lawyer) in the TOC (tactical operations center), and you’re cleared to engage.” That response tells you that a legal analysis has been done, and the lawyer thinks the strike is acceptable.

This involves an element of trust, that what you’re being told is accurate and that the JAG approved the strike, as well as the legitimacy of the JAG’s legal analysis, that the JAG isn’t rubber stamping the strike, but has made the analysis upon which you’re relying. But his point is that the procedure has been used and the strike has been ratified. So you pull the trigger.

But what about killing the prisoner?

You can’t fight a war — especially a counterinsurgency like the one we faced in Iraq — if every soldier acts as an independent legal check on every order he or she receives. Individual service members don’t have sufficient knowledge or information to make those kinds of judgments. When time is of the essence and lives are on the line, your first impulse must be to do as you’re told.

But not always. In the two scenarios above, the pilot should drop his bomb, but the platoon leader should refuse the order to shoot the prisoner.

During the Vietnam war (lower case, since it was never declared by Congress to be a war), Lt. William Calley was ordered to clear a village. And he followed orders.

The legal difference between those two scenarios can be explained in a case called United States v. Calley, the best-known case to emerge from the Vietnam War, a conflict that also contained both conventional and counterinsurgency elements. First Lt. William Calley Jr. was facing charges related to the My Lai massacre in Vietnam, and he presented a classic military defense — that he was following orders to clear the village.

In response, the Court of Military Review said that “The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.”

Of course, leaving it to the discretion of “a man of ordinary sense and understanding” might not seem to most to be a sufficiently clear line. After all, most of us believe ourselves to be a person of “ordinary sense and understanding,” and therefore any decision we make, whether to comply or not, will satisfy this test, known as the “manifestly unlawful” test.

As Maj. Keith Petty, then an Army judge advocate, explained in an excellent summary of the law in a 2016 piece in Just Security, this is called the “manifestly unlawful” test, and — as Petty described it — the rule means that “the legal duty to disobey is strongest when the superior’s order is unlawful on its face.”

Shooting a prisoner, for example, is unambiguously illegal. Bombing a home that is thought to contain insurgents is not.

What is clear, coming out of the Nuremberg trials of the Nazi high command following World War II, is that “just following orders” is not a defense. While the high command alone bears responsibility for commencing illegal aggression, the soldier bears responsibility for how he executes his orders in the field.

This means that when it comes to the decision to initiate hostilities, the responsibility rests with the senior leaders of the nation (in this case, ultimately, with President Trump). At the same time, however, members of the military bear responsibility for how they conduct those operations.

The problem, of course, is that not all scenarios fall nicely within the parameters set forth by the two examples David provides. In the course of executing orders, innumerable scenarios arise which could implicate illegality, and troops are not in a position to make complex legal determinations as to whether their execution of orders are lawful or illegal.

Even if the facts are clear, the law is often complex. Do we really expect individual pilots or sailors to know that the statutes Trump is relying on to designate various narcotics gangs as international terrorist organizations do not also contain an authorization to use military force?

Do we expect individual pilots and sailors to know when criminal activity rises to the level of a true military threat under international law?

No, we do not.

We do, however, expect that our leaders, the high command, will make the distinction.

Trump has put the military in an impossible situation. He’s making its most senior leaders complicit in his unlawful acts, and he’s burdening the consciences of soldiers who serve under his command. One of the great moral values of congressional declarations of war is that they provide soldiers with the assurance that the conflict has been debated and that their deployment is a matter of national will.

Congress has not authorized the military to bomb ships in international waters. The Justice Department has fashioned a classified memo saying this is lawful, but it is subject to Trump’s twin directives, that the OLC memo should accept the facts as Trump says they are and apply the law as Trump says it should. But neither Trump, nor the OLC “golden shield” of a legal opinion authorizing the action, changes the law as it is.

So here’s the bottom line: No legal opinion can compel any member of the military to commit “manifestly unlawful” acts during a war. But when it comes to the decision to begin an armed conflict, the responsibility doesn’t rest with individual soldiers, sailors, airmen or marines; it rests with Trump and his most senior military and political advisers — the men and women who ordered them to fight.

Does this clarify what the members of Congress meant when they restated the law that troops must not obey an illegal order, or how it should apply to the circumstances before us? Probably not, but that’s the nature of law at a time “when the president [orders] it, that means that it is not illegal.”