By Andrew R. MilburnOctober 26, 2010
There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order. In supporting this assertion, I discuss where the tipping point lies between the military officer's customary obligation to obey and his moral obligation to dissent. This topic defies black-and-white specificity but is nevertheless fundamental to an understanding of the military professional's role in the execution of policy. It involves complex issues-among them, the question of balance between strategy and policy, and between military leaders and their civilian masters.
Any member of the military has a commonly understood obligation to disobey an illegal order; such cases are not controversial and therefore do not fall within the purview of this article. Instead, the focus is on orders that present military professionals with moral dilemmas, decisions wherein the needs of the institution appear to weigh on both sides of the equation. Whether the issuer of the order is a superior officer or a civilian leader, the same principles apply. However, because issues at the strategic level of decisionmaking have greater consequences and raise wider issues, I focus on dissent at this level.
In the face of such a dilemma, the military professional must make a decision, which cannot simply owe its justification to the principle of obedience, and must take responsibility for that decision. But when and on what grounds should the officer dissent' And how should he do so' I offer three propositions:
1. The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral; that is, an order that is likely to harm the institution writ large-the Nation, military, and subordinates-in a manner not clearly outweighed by its likely benefits.
2. This obligation is not confined to effects purely military against those related to policy: the complex nature of contemporary operations no longer permits a clear distinction between the two. Indeed, the military professional's obligation to disobey is an important check and balance in the execution of policy.
3. In deciding how to dissent, the military officer must understand that this dilemma demands either acceptance of responsibility or wholehearted disobedience.
Before supporting these propositions, I discuss the "traditional" view of civil-military relations, which owes much to Samuel Huntington and his theory of objective control.
Obedience as Virtue
Samuel Huntington's The Soldier and the State remains the touchstone for the study of civil-military relations. However, the book should be viewed in its historical context, written as it was over 50 years ago at the height of the Cold War when the obvious need to centralize decision authority for the use of nuclear weapons lent support to a strict interpretation of civilian control. No doubt also fresh in Huntington's mind was General Douglas MacArthur's narrowly averted threat to cross the Yalu River and thus escalate the Korean War. Huntington's concept of "objective control" delineates clear boundaries between the realm of the soldier and statesman; the former is afforded some functional autonomy within his area of expertise but very little moral autonomy. Huntington argues that the military professional is on thin ice if he dissents on any grounds other than purely military or legal-and that ultimately, his overriding obligation is loyalty to his civilian masters. For Huntington, there is no middle ground: "When the military man receives a legal order from an authorized superior, he does not hesitate, he does not substitute his own views; he obeys instantly."1
Huntington's views still have strong influence on U.S civil-military relations today, and this may explain why, despite some ruffled feathers at the nexus between policy and military operations, there have been few recent cases of U.S. military leaders protesting the orders of their civilian masters. As General Richard Myers and Dr. Richard Kohn point out, "There is no tradition of military resignation in the United States, no precedent- and for good reason."2
This "good reason" is the principle of civilian control that is embedded in the U.S. Constitution. It gives Congress authority to raise the military, to set the rules for military conduct, and to decide whether to authorize war. It also makes the President the Commander in Chief of the military. Traditionalists argue that this principle is incompatible with any theory of civil-military relations that does not obligate the military professional to absolute obedience. In their view, dissent is justified only under the most exceptional circumstances and must be confined to the purely military aspects of a decision. The Nation's civilian leadership, they argue, has the "right to be wrong."3
The comments of General Myers and Dr. Kohn about resignation are quoted from an article entitled "Salute and Disobey'" An impassioned and ostensibly well-reasoned defense of the traditional view of civil-military relations, the article was published in response to accusations of excessive docility among the Nation's military leadership in the conduct of the war in Iraq. The authors object to the idea that a military officer should refuse an order on moral grounds because "one individual's definition of what is moral, ethical, and even professional can differ from someone else's."4 This claim appears to let the military officer off the hook from making any moral decisions. That argument, by logical extension, would deny the existence of a military profession at all-by relegating its role to the bureaucratic function of executing instructions. It also reflects a weakness in the traditionalist argument by denying moral autonomy to a profession with a clearly defined code of ethics and an oath of allegiance not to any one person, but to the Constitution. I argue that these obligate members of the military profession to exercise moral autonomy beyond its commonly accepted responsibilities to proffer the executive branch candid advice and speak truth to Congress.
The Military Profession
A survey conducted among students at the Marine Corps War College (MCWAR) in January 2010 reveals a view of the military profession that contrasts sharply with the Huntingtonian model espoused in "Salute and Disobey'" The sample is admittedly small; nevertheless, it represents a cross section of 20 senior field-grade officers from all Services and two foreign countries. Without exception, they agreed that there are circumstances under which they would disobey a lawful order. Their criteria vary little, as these excerpts illustrate:
* "If the officer cannot live with obeying the order, then he must disobey and accept the consequences."
* "When I cannot look at myself in the mirror afterwards."
* "When I deem the order to be immoral."
* "When it is going to lead to mission failure."
* "When it will get someone injured or killed needlessly."
* "When it will cause military or institutional disaster."5
These comments reflect the view that the military professional has moral obligations more fundamental than obedience and loyalty to their leaders, civilian or military. Myers and Kohn imply that the term moral is too subjective to be defendable. However, I argue that the military profession is founded on clearly defined moral principles.
For the purposes of this article, I use the term military professional to apply to military officers. I make this distinction based on the nature of the officer's professional military education, which focuses on developing an abstract body of knowledge; his code of ethics, which reflect the "special trust and confidence" conferred on him by the President and Congress in his commission; and his oath of office, which differs in an important aspect from the enlisted oath. These defining characteristics of the military profession impose on him obligations beyond obedience.
Code of Ethics
How a profession views itself does much to shape its identity, and U.S. military officers take pride in belonging to a profession centered on high ethical standards. This belief, inculcated upon entry and constantly reinforced, appears within the profession to be self-evident. Indeed, each Service uses the term core values to describe ethical tenets that it regards as fundamental. The emphasis on values reflects an institutional understanding that it is a profession wherein the potential cost of bad decisionmaking is especially high.
The concept of integrity, defined as doing what is right both legally and morally, is enshrined in the professional ethics of the Army, Navy, and Marine Corps. The Army lists among its values Selfless Service, defined as "Putting the welfare of the nation, the Army, and your subordinates before your own." Although Loyalty is also one of the Army values, it is defined as an obligation to safeguard the welfare of subordinates. Obedience is not listed among any Service's core values or code of ethics-nor does it appear as an area of evaluation on fitness reports, although moral courage does.
The Oath of Office
While enlisted Servicemembers take an oath in which they promise to "obey the orders of the officers appointed over me," officers do not undertake any such obligation to obey, but rather to support and defend the Constitution. This difference is significant because it confers on the officer a weighty responsibility to, as Lieutenant General Gregory Newbold put it, "give voice to those who can't-or don't have the opportunity-to speak."6 The obligation to nation and subordinates cannot conceivably be interpreted as meaning blind obedience to civilian masters. This obligation is given legal codification in the United States Code, Title 10, Armed Forces, which charges commanding officers to "safeguard the morale, the physical well being, and the general welfare of the officers and enlisted persons under their command or charge.7
The military professional's core values and oath of office demand the exercise of moral autonomy in carrying out orders. He has sworn to defend the Constitution and safeguard the welfare of his subordinates. Implicit is the obligation to challenge orders whose consequences threaten either without apparent good reason.
Check and Balance
In Supreme Command, Elliott Cohen's central theme is one of unequal dialogue-a term he uses to describe the method by which civilian leaders must supervise military operations to ensure that force is being used in consonance with policy objectives. I agree with this argument, but not with Cohen's parallel contention that the military officer has no business making decisions in the realm of policy.8 Significantly, Cohen's discussion focuses on four statesmen renowned for both their strategic acumen and their skill in handling their military commanders. His theory does not recognize the possibility that, at the blurred nexus between strategy and policy, the military professional plays a valuable and constitutionally defendable role as a check on the potentially disastrous decisions of men less capable than Abraham Lincoln or Winston Churchill.
The traditionalist "stay in your lane" argument presupposes a clear distinction between matters of policy and those of military strategy. Even Cohen, who criticizes Huntington for oversimplifying the line between the two, believes that a line has to be drawn somewhere in order to preserve the principle of civilian control. The truth is that the complexity of what military doctrine terms the Joint Operating Environment and the nature of roles and missions assigned to top military commanders make any clear distinction impossible.9
Clearly, the military professional's realm of decision extends beyond the strict parameters applied by Huntington and even Cohen. I further argue that just as the statesman's involvement in military operations provides a healthy check in the execution of policy, so does the military professional's exercise of moral autonomy. Sound decisionmaking depends on the statesman and soldier sharing alike a responsibility for the execution of both policy and strategy.
The traditionalists, of course, balk at the suggestion that the military professional has an important role to play as a check and balance: "In a democracy, the military is not the one assigned to ensure that civilian politicians are not shirking," commented Peter Feaver, a professor of political science at Duke University.10 Prima facie, this statement appears true. But when the results of bad decisionmaking are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution-the electoral voice of the people, Congress, or the Supreme Court-are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion.
Take, for instance, the decisions by the Coalition Provisional Authority in May 2003 to disband all Iraqi security institutions and to impose a policy of de-Ba'athification without any corresponding caveats permitting reconciliation. Assume, for the sake of argument, that these were bad policies that fueled the nascent insurgency with thousands of armed, trained, and disgruntled young men with drastic consequences for American forces and U.S. efforts in Iraq. Assume, too, that these consequences can be deemed predictable by the reasonable man. With these assumptions in mind, would not the military chain of command have been justified in refusing the order' The traditional argument would deny military leaders this recourse simply because the orders reflected policy decisions.
Or consider a recent case in which senior military officers complied with an executive decision that violated the Geneva Conventions. In Hamdan v. Rumsfeld, June 2006, the Supreme Court ruled that Guantanamo detainees were entitled to the protections provided under Common Article 3 of the Geneva Conventions. This meant that the U.S. Government had violated the Geneva Conventions for over 4 years. It is hard to see this ruling as being anything less than a serious blow to national prestige, undermining U.S. efforts in the all-important arena of strategic communication. But it was more than that-for those who believe that national values are important, it appeared to undermine the very cause that the Nation professed to represent. This point was not lost on the Supreme Court; as Justice Anthony Kennedy observed, "Violations of Common Article 3 are considered war crimes."11
The Bush administration's decisions vis-AfA -vis the Guantanamo detainees also infringed on the Constitution, which military professionals have sworn to support and defend. So decided the Supreme Court in the case of Boumediene v. Bush, in which the Justices ruled that the government did not have the constitutional authority to suspend habeas corpus indefinitely.12 The Constitution declares that "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The executive branch had asserted broad authority to detain without trial without claiming either caveat.
My point in discussing the habeas corpus issue is not to debate the rights and wrongs of the case or to argue that the transgression should have been obvious to the military officers involved. Instead, I cite it to exemplify a situation in which an officer would have been justified in refusing an order even though it was a policy decision. In so doing, he would have been upholding his oath by opposing the unconstitutional exercise of executive authority.
There is another facet to this case that emphasizes the military professional's important role as a check and balance. The clause in the Constitution pertaining to the suspension of habeas corpus is under Article I, which deals with Congress, as opposed to Article II, which covers the powers of the President. And yet it was the executive branch that in this case assumed the role granted Congress. Perhaps the most disturbing aspect of this incident was that Congress raised no objection, thus shirking its constitutional role.
In a February 2010 article, Lieutenant Colonel Paul Yingling, USA, accused Congress of "all but abdicating many of its war powers."13 He is correct. In recent years, Congress has proven less than vigorous in carrying out its constitutional duties pertaining to the military, creating what is essentially a constitutional void. For instance, the function of declaring war is vested in Congress with good reason. It is an expression of public support for the most momentous decision a nation will make; it ensures that the rationale for going to war and the policy goals sought by this decision are clearly defined. And yet not since World War II has Congress exercised its constitutional duty of declaring war.
A congressionally approved declaration of war performs another important function by fulfilling the "public declaration" requirement of the universally accepted theory of just war. The United States and its allies are committed by treaty and policy to conduct military operations within the framework of just war theory.14 Just war criteria fall into two categories: jus ad bellum, the reasons for going to war, and jus ad bello, the manner in which war is conducted.15
The traditionalist argument holds that military leaders are concerned only with jus ad bello; it regards jus ad bellum as outside their purview since the decision to go to war is one of policy. However, for reasons already advanced by this article, senior military leaders are obligated to make judgments that fall within the realm of jus ad bellum, especially if Congress appears to have neglected its responsibilities in this regard. Of course, this obligation applies only to military officers of the highest rank; subordinate leaders do not have the choice of resigning in preference to going to war. This means, for instance, that a military leader might be justified in insisting that Congress vote to declare war in order to ensure that the decision stems from legitimate authority. He might also be in possession of information not available to the public, indicating that the stated rationale for going to war is invalid, in which case he has an obligation to speak out.
Once war is declared, the power of the purse obligates Congress to oversee its conduct by ensuring that ways and means are matched to the stated ends. With the early years of U.S. involvement in both Afghanistan and Iraq fresh in mind, it is hard to challenge the accusation that congressional oversight has not been zealous. Indeed, the wording of the 2002 authorization for the use of force in Iraq is so open-ended as to abdicate up front all congressional responsibility for subsequent oversight.16
The Founding Fathers recognized the need for checks and balances to counteract the frailty of human nature. Yingling concludes his article by saying the only way to ensure that Congress exercises these checks and balances would be to bring back universal military service. Not so, I argue. If the country's military leaders employ moral and intellectual rigor in adhering to their oath of office and professional ethics, there will be no need for so drastic a measure. That is not to say that the resignation of one or more senior leaders would always be enough to awaken the legislature to their constitutional duties, but it might at least gain the attention of the American people.
When the Constitution was written, the army was intended to be only a militia, soon to be disbanded and resurrected only in time of impending crisis. It names the judiciary as a check on both the executive and the legislature. The Supreme Court, however, will only catch those cases that are pushed to its jurisdiction, which may be after much damage has been done, as the Guantanamo cases bear witness. The court is unlikely to be called upon to decide whether a decision to go to war was justified, or whether its subsequent prosecution is in accordance with clearly defined goals, and matched with the necessary resources. In the face of congressional somnolence, the military professional has a duty to speak out in such cases.
The traditionalists need not worry. Recognition of the fact that military commanders have an obligation to make judgments involving policy is not tantamount to permitting politicization of the profession. The military professional cannot pick and choose courses of action that correspond to his political views. He must exercise careful discretion, basing his decision on his oath of office and professional ethics as opposed to a political agenda. The military officer belongs to a profession that demands the highest standards of conduct and that confers great responsibility, to include decisions literally involving life or death. He is entrusted with the Nation's treasure. Surely he can be trusted to handle nuance.
My argument does not challenge civilian control of the military. Civilian leaders retain the authority to direct and fire military leaders who prove inept or disobedient. Nevertheless, the traditionalists appear to assume that allowing military professionals a degree of moral autonomy is a slippery slope culminating in loss of civilian control. To understand this argument, it is necessary to envision their concerns: a military pursuing its own agenda irrespective of civilian direction, and in doing so enacting a de facto coup whereby its leaders call the shots in matters ranging from acquisition programs to foreign policy. But given the highly professional nature of the U.S. military, is this fear realistic' A country's system of government usually evolves with experience. Chile and Argentina now have embedded in their constitutions tight controls on the military-a consequence of recent history in which military juntas seized power in both countries. But the history of the United States is quite different. Not since the Newburgh Conspiracy in 1783 has the military overstepped its bounds by trying to influence Congress, and even then the goal was financial reimbursement rather than political power.17
The traditionalists may fear that allowing military leaders moral autonomy will open the floodgates, enabling generals to threaten resignation simply because they do not agree with a particular policy. Human nature, as well as professionalism, provides a bulwark against such an eventuality. It is fair to assume that generals like being generals, and thus would select judiciously those causes for which they were prepared to sacrifice their careers. Greater likelihood and worse consequences attend the other end of the spectrum where senior leaders refuse to make a stand on policy issues-cloaking their reluctance behind a Huntingtonian view of civil-military relations.
The military professional plays a key role as a check and balance at the indistinct juncture between policy and military strategy. He should not try to exclude himself from this role, even on issues that appear to involve policy, any more than the statesman should exclude himself from overseeing the conduct of military operations. He has a moral obligation to dissent rooted in his oath of office and his code of professional ethics. The question remains, how should he do so in a morally defensible manner'
Dissent: What to Do'
If an officer decides that an order is rendered unconscionable by its probable consequences, it follows that he has a moral obligation to dispute the order and, if unsuccessful, to dissent in a manner that has the best chance of averting those consequences, or his dissent is rendered meaningless. Resignation is his ultimate option, but he may choose to take other steps prior to that (for instance, requesting an audience with the President or with the Senate Armed Service Committee). Following resignation, he may decide to "go public" by speaking to the media.
The circumstances surrounding these decisions are seldom clear-cut. The military professional has, as discussed, an obligation to his subordinates. He must consider how his public defiance could affect their morale. It may be that he would cause them to lose confidence at a critical time without changing the course of events. He must also consider what effect his resignation would have. Would it cause a stir sufficient to avert the feared consequences, or is it more likely that he would be replaced by someone who would carry out the order, perhaps in a manner likely to cause even greater harm'
This question raises a difficult issue. Should dissent be founded on the right action or the right effect' A third of the MCWAR officers surveyed argued that in the face of a moral dilemma, the military professional should focus on the effect desired: mitigation of the immoral order, rather than the conscience- salving but possibly ineffectual act of resignation. These officers advocated an indirect approach: addressing higher authority, leaking the story to trusted journalists or politicians, and dragging their feet in execution- "slow rolling" in military parlance. "What else can I do'" asked one officer rhetorically. "My only option is to conduct covert actions to reduce the risks of misfortune and of American casualties."18 This approach is certainly not without precedent. As one Army colonel commented in response to the survey, "The most (commonly) used form of disobeying an order I've seen is slow-rolling."19 This option does have some prima facie appeal, combining its own moral logic with a pragmatic focus on effects.
But a profession that values integrity and moral courage cannot at the same time justify a deceptive approach to dissent. By taking an open stand, the military professional displays the courage of his convictions but also implicitly accepts personal consequences, whether he is right or wrong. His stand may persuade the issuer of the order to reconsider or it may draw the attention of the legislature to the issue. On the other hand, it may be purely symbolic-and have no effect on the decision. Regardless, he has exercised his moral autonomy and taken the consequences. He may, after all, have been wrong in his predictions, and this point is key because the military professional, however well placed and intelligent, is always fallible. Allowing him moral autonomy to dissent benefits the process of policy execution overall; sanctioning the practice of "slow-rolling" orders deemed to be immoral ultimately sabotages this process. The truth of this statement becomes more apparent when, rather than looking to past examples of bad orders that were slow-rolled to good effect, one looks at a potential policy decision whose consequences could be highly controversial but are by no means predictable.
Suppose the current "Don't Ask, Don't Tell" policy with regard to homosexuals in the military is repealed and that the Service chiefs are ordered to integrate homosexuals in the same manner as were African Americans and women previously. Considering all that I have discussed with reference to the military professional's moral autonomy, could any Service chief-or subordinate unit commander- claim to be justified in dragging his feet in executing the policy' What if one did so, while the others executed the policy wholeheartedly, with consequences that proved that integration was the right thing to do' While open dissent is an act of professionalism, carrying with it an acceptance of personal responsibility, slow-rolling reflects hubris without moral courage. Its practice obfuscates rather than clarifies questions of policy and discredits the military profession.
Lastly, "silent" resignation is likely to accomplish little to divert the decisionmaker from his course. Criticism of policy from the haven of retirement lacks the same moral force as public dissent backed by the publicly announced tender of resignation. Moreover, the senior officer must bear in mind that his subordinates do not have the option to resign to avoid, for instance, going to war. This burdens the military professional with the responsibility to use this privilege to accomplish more than the personal, perhaps selfish, goal of conscience appeasement.
The question of how to dissent is not an easy one. Nevertheless, the military professional must exercise his moral autonomy when confronted by a dilemma. He cannot morally justify his subsequent decision on the basis that he was simply obeying orders, that he put up token resistance prior to obeying, or that he dragged his feet in execution.
The topic of military dissent raises issues of fundamental importance to the profession of arms. When faced with a moral dilemma, the military officer not only has grounds for dissent, but also, if his code of ethics and oath of office so guide, has a duty to disobey. He is obligated to exercise moral autonomy, and in so doing must use his professional ethics to guide him down a path that is by no means clearly defined.
Just as civilian leaders have an obligation to challenge military leaders if the latter appear to be pursuing a strategy that undermines policy, military leaders are committed to challenge their civilian masters if the policy appears to be unconstitutional, immoral, or otherwise detrimental to the institution. Civilian control of the military does not obviate this obligation and should not be viewed simply as a unilateral and hierarchical relationship with clear boundaries. This is especially important now in this era of complex operations that blur the boundaries between military strategy and policy.
For the military officer, this underscores the importance of understanding the nature of his profession and its role in executing national policy-both of which appear to have changed markedly since Huntington wrote his famous book a half century ago. JFQ
1 Samuel P. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Belknap Press, 1957).
2 Richard B. Myers and Richard H. Kohn, "Salute and Disobey'" Foreign Affairs, September- October 2007.
3 Damon Coletta, "Courage in the Service of Virtue: The Case of General Shinseki's Testimony before the Iraq War," Armed Forces and Society, October 2007.
4 Myers and Kohn.
5 The author conducted the MCWAR survey at the Marine Corps War College in early January 2010. The subjects were asked: 1) Under what circumstances (short of an illegal order) is a military professional justified in dissenting or disobeying an order; 2) What form should this dissent take'
6 Gregory Newbold, "Why Iraq Was a Mistake," Time, April 17, 2006.
7 United States Code, Title 10, Armed Forces (Sections 3583, 85831, 5947).
8 Elliott A. Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (New York: Anchor Press, 2003).
9 See U.S. Joint Forces Command (USJFCOM), The Joint Operating Environment 2008: Challenges and Implications for the Future Joint Force (Norfolk, VA: USJFCOM, 2008): "Above all, joint force commanders, their staffs, and their subordinates must have a clear understanding of the strategic and political goals for which they conduct military operations. In almost every case, they will find themselves working closely with partners, a factor which will demand not only a thorough understanding of U.S. political goals, but coalition goals as well."
10 Peter Feaver, Armed Servants: Agency, Oversight, and Civil-Military Relations (Cambridge, MA: Harvard University Press, 2003).
11 Supreme Court of the United States, Hamdan v. Rumsfeld, Secretary of Defense et al., Certiorari to the United States Court of Appeals for the District of Columbia Circuit, No. 05-184. Argued March 28, 2006-decided June 29, 2006, available at www.law.cornell.edu/supct/html/05-184.ZS.html.
12 Supreme Court of the United States, Boumediene et al. v. Bush, President of the United States et al., Certiorari to the United States Court of Appeals for the District of Columbia Circuit, No. 06-1195. Argued December 5, 2007-decided June 12, 2008, available at www.law.cornell.edu/supct/html/06-1195.ZS.html.
13 Paul Yingling, "How Congress Has Abdicated Its War Powers," Armed Forces Journal, February 2010.
14 Just War theory is embodied in the United Nations Charter and the Law of War. Its intent is also reflected by the wording of the National Security Strategy.
15 Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977).
16 "The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq." Public Law 107-243, "Authorization for Use of Military Force Against Iraq," Resolution of 2002, October 16, 2002.
17 The officers involved planned to march on Washington to lobby Congress to grant their request for back pay and pension.
18 A MCWAR student with the rank of colonel in response to the survey question, "What form should dissent take'"