Dissent or License?

This article is bold in one primary respect; it considerably expands the sphere of policies the carrying out of which military officers have moral obligation to disobey. Where most would agree that officers have obligation to disobey clearly unconstitutional or illegal orders, this paper, cashing in on a logical distinction that exists between the moral and the legal, makes an attempt to use the necessarily more difficult to ascertain criterion of 'immorality' toward the end of arguing that there are obligations to disobey orders that are themselves allowed or rendered justifiable by plausible readings of the Constitution, relevant legislative acts or judicial history. Many readers of this article have remarked that this is a rather remarkable and disturbing proposal. It is certainly unusual.

Fortunately, in most cases, the immoral has been sanctioned by law. So, for instance, if the President ordered the wholesale slaughter of the inhabitants of Canada, there are international laws and treaties that cover that act, forbidding it, and thanks to the U.S. constitution, the officer's oath gives clear guidance. That order can be, and should be disobeyed.

Not content to stay with the easy stuff, Milburn considers decision making at the strategic (grand and otherwise) level. He says:

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.

He forces us to consider cases that are considerably more ambiguous than the rabid anti-Canadian-Chief Executive hypothetical. He draws a distinction between strategy and policy, and argues that military officers are not only responsible for giving expert advice vis the strategy side, but are also obliged to weigh in on the policy side, and should publicly disobey when their views are not accepted.

We really need an example. Let's assume one. General Electric does not believe that nation building in far off Sylvania is sound policy. He is convinced that such a project is immoral. Why? It is an imposition of Freedonian culture or extinction of indigenous Sylvanian culture, or perhaps it's a violation of Sylvanian national autonomy, or perhaps GE has reason to believe the project will bring on internal civil warfare in Sylvania, ending in substantial suffering and loss of life. For whatever reason, General Electric's moral spider sense is tingling. What does Milburn have to say about such a circumstance? GE should act as a check against the powers that are deciding the policy. If the executive and/or the Freedonian Congress has declared in favor of the policy, and set it in motion, he needs to disobey, perhaps even take more active steps to thwart.

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.

Notice, this is not, I repeat NOT like the Canada case. President Firefly (OK OK..I know. Now he's the U.S. Prez..just go with me on this..) orders the attack on Canada. General Electric seeing not only the clear immorality, but the clear illegality of the order, refuses, and even takes the President into custody, realizing that the people cannot vote Firefly out of office until the next election. What is more, Congress, being Congress, would "fiddle twiddle and resolve" but not be able to act in a timely manner. And the courts? Please. Wayyy to much time involved. This calls for immediate action!

This is the stuff of Hollywood scripts. We can imagine such cases, and imagine what might have been if analogous steps had been taken by the German high command during WWII, and see, at least partially, what motivates Milburn's argument in the present case.

But, and this is where the piece is particularly bold, Milburn means to test our intuitions in such stark cases by the trickier touchstone of much more commonplace and mundane scenarios, scenarios that are constant throughout U.S. history. For that reason, his recommendations render him vulnerable to accusations of opening up a slippery slope. Sometimes accusations of opening slippery slopes are treated as rhetorical dodges, or samples of fallacious reasoning. Other times such accusations are based on sober and judicious consideration of the likely results of allowing for certain courses of action. So, with an eye toward deciding whether or not Milburn's suggested revision of the ethics of officership would indeed open up a slippery slope, let's look at his cases:

The first thing of note is that his cases are considerably less clear cut than the 'attack on Canada' scenario. They are not even as clear cut as some cases from U.S. history which naturally spring to mind as you read Milburn. As you read him, and consider these historical cases (about which, more shortly), ask yourself whether or not it would be morally advisable for us to allow as a general rule of behavior, that military officers at the highest levels can disobey such orders, or take actions to thwart them. I think your answer to this Kantian question will be "No. That would be terribly unwise, and it would also be a substantial intrusion of the military into the realm of civilian control of policy." But, having already poisoned the well, let me ask you to put my answer in abeyance, and consider the question yourself, in light of the historical precedents.

The scenarios he presents are particular, but, significantly, they are preceded in the essay by a more general description, which Milburn believes covers the cases. That description, if we are to believe him, covers the essential features of the particular cases that Milburn exhibits as presenting legitimate triggers for dissent in higher command. In the general description the hypothetical person Milburn envisions as having moral obligation to disobey orders or thwart policy has decided that the policy has (or perhaps could) "waste" lives and has already or could if implemented "damage" the nation in some fundamental way (at any rate I think this is what he means by the phrase "writ large".)

What is more, if all the normally recognized checks on that executive power have acquiesced in its policy (or failed to check the policy), that is, if the President has been duly elected by a properly informed populace, and neither Congress nor courts have blocked the executive's policy, and it is also the case that the situation gets the General's moral spidey sense tingling, he is not only excused in acting to thwart the President, but obligated to do so.

That, in general terms, is the gist of Milburn's case. What is more, any standard that codifies this allowance or leeway provided commanders at the highest levels would necessarily have to include language at this level of generality. One wonders, then, at the risk such general language introduces, the risk, that is, of easy interpretation of events as having met the ambiguous criteria, the risk, that is, of frequent invocation of the right to dissent or to taking more proactive measures, and the attendant risk of ultimate breakdown of the military as an organization that is an adjunct of the U.S. government and its people.

Now, at this point, we are given examples, from the Bush years:

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?

What is quite remarkable about this example is that there is not anything in the ruminations about the straightforward illegality of the policy. The general just thinks it's ill conceived and WILL lead to untoward consequences. According to Milburn, this gives sufficient justification for dissent, in fact it obligates the general to act. What is more, some language in his piece seems to suggest that the general should go further if needs be:

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.

So, we have to assume that anytime someone sufficiently high in command becomes convinced of the ill-advised nature of an overall strategy being implemented in a war he/she is morally obliged to do all this. What is more, if we are going to allow for this, we will have to codify that allowance somehow within the military code of ethics.

Keep in mind: All of this discussion is predicated on an example where there was no plausible case to be made that the allegedly ill-advised policy was in fact illegal or unconstitutional. Wow.

But things get even more interesting with Milburn's next two examples. They at least have the benefit of being cases that present policy decisions that might, (emphasis on "might") be illegal or unconstitutional. (Please note this in light of the references to U.S. history just above and coming below.)

The two examples are premised on controversial Supreme Court decisions which privileged non-citizens and unlawful combatants with full protections of the U.S. Constitution (habeas corpus rights, and protections via articles of international treaty accepted by the U.S. and thus functionally equivalent to Constitutional law):

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."

The Bush administration's decisions vis-à-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. 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.

Now, we could no doubt expand the sphere of such examples to actions taken by the present administration (e.g., targeting Awlaki), and we could also consider analogous actions of past administrations (Roosevelt, Lincoln). The point here is not to argue for or against the constitutionality of the policy decisions, or whether or not constitutional provisions can be overridden in extraordinary circumstances but, as Milburn says, to argue that granted situations like these, high level officers are not only permitted to disobey orders, but have a moral obligation to do so, if they sincerely believe policy is unconstitutional. Why? Because officers have sworn to defend the Constitution per se.

Now, as stated earlier, these two cases have the benefit of being backed by some legal argumentation to the effect that the actions were in fact unconstitutional. However, it is also clearly the case that each of these actions enjoyed the support of equally plausible legal argumentation that they were in fact constitutional.

While the Supreme Court decisions favored the first interpretation, subsequent rulings and subsequent legislation has apparently reversed them, or rendered them ambiguous at the very least. Additionally, as the examples of Roosevelt and Lincoln clearly show, arguments have been made, and generally accepted, that supspension of Constitutional rights is sometimes morally acceptable, or, if not, excusable, given extreme circumstances, such as warfare. We wisely leave such judgemnts up to elected members of the government, and hold them responsible. In general we do not hold military members similarly responsible, and bring the hammer down on them only for CLEARLY illegal and immoral actions. There is good reason for this. If we chose to make both sides equally morally responsible, some sort of anarchic result would be in the offing. That, ultimately, is the reason I believe Milburn's proposal is ill-advised.

I think the example of Lincoln is most telling in this connection. Compared to him, Bush was a relative piker when it came to wielding executive power. Yet, the judgment of history is that he made tough but right choices, given the overall goal he had in mind of preserving the union, and protecting lives of civilians and union soldiers.

Now, we, given the benefit of hindsight, are epistemically able make that judgment, we are in a position to do so, given the time that has elapsed since the Civil War and given our ability to see what Licoln in fact preserved and made possible (the United States as the world power it is, and force for good it is..)

But, (and this is key) it would have been either impossible or unlikely for someone in 1861 to see this. In particular, it would have been impossible for one or more of the many generals predisposed to suspicion of Lincoln to see this. What is more, such persons, seeing Lincoln suspend habeas rights, could arguably have reasoned in a manner not unlike that championed by Milburn. Consequent to that bit of moral reasoning, they could have resigned, could have gone public with an all too eager press, could have petitioned Congress, and etc.. The result? Two nations?

What is more, this would have set a precedent for those at higher levels of command during the ensuing 150 someodd years of U.S. (if indeed it would have been United States) history.

Obviously, similar things can be said if we look back at episodes in U.S. history where it was arguable at the time that policy might "endanger the nation" or "waste lives."

The fact that precedent would have been set is undeniable, and the mere presence of such precedent also leaves us apparently solid ground for arguing that a slippery slope (pun intended) would have been created that would have disturbing repurcussions into the future.

That, I think is the primary fault with this argument presented by LtCol. Milburn.

We hold elected representatives responsible for the consequences of the mundane and ambiguous commonplace cases, not the military. This is not to say that the military is not ever held responsible for any orders they carry out. They are, but for clearly immoral and illegal acts.

None of this gainsays the fact that officers always have the right to resign if they feel so compelled. In fact, that is the honerable thing to do in many cases, and would serve to bring to public awareness things that need to be exposed. But, to admit this to be the case is a far cry from making the claim that military officers have an obligation to resign in each and every case when their moral spidey senses get to tingling. For, that recommendation boils down to arguing that most officers will have multitudes of instances in which they will have moral obligation to resign. That is a recipe for something very like dissolution of the military into a sort of chaos and anarchy. To paraphrase Kant here: universalizing that maxim of action is not plausible. It is also unwise.