"There are circumstances under which a military officer is justified to disobey a legal order."

[elfs]

So, it has come to this:

There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order.

...

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.

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.

Joint Forces Quarterly, Issue 59. Everyone got that? Lt. Col. Andrew Milburn is arguing that it is his duty as an officer to decide if national policy, as consequented to him by his civilian commander, and is apparently legal, is moral enough for him to obey. This is the hubris of "military wisdom" that leads to military overthrows of government and the imposition of juntas.

What's particularly scary is that at least one of the previously mentioned "Oath Keepers" quoted Milburn. To be fair, he dissents from Milburn, boiling Milburn's argument down to "In effect, Lt. Col. Milburn’s dissenting officer assumes emergency powers and inherits veto power from his moral and strategic righteousness." He also linked to several excellent takedowns of Milburn, but finished by stating that the civilians in this country are "slovenly, self-absorbed, preoccupied with excess and welfare, and altogether ignorant of the two wars we've been fighting for the better part of a decade."

Comments

[oldhans117.livejournal.com]

And yet a bunch of Bozo's in uniform hung a guy up by his wrist and beat him to death with baseball bats. And the "Oath Keepers" and there right wing ilk has no problem with this.

[slutdiary.livejournal.com]

Uh, sorry.

Some - many - of us slovenly citizens have already fought our wars, and earned just a bit of credibility in our opinions.

[shockwave77598.livejournal.com]

Amen. I still have the scars and burns to show for it, too.

[drewkitty.livejournal.com]

Thank you both for your service and your comments.

[technoshaman.livejournal.com]

Military or civillian, a government servant's oath *is* to the constitution. The problem is interpretation. If you've got some asshole who believes in all his heart that t3h gay is an abomiNATION!!!11eleven!... why, them heathern are a Security Threat, to be eliminated by Any Means Necessary. Why, they're TRAITORS, giving HELP and COMFORT to the Evil One...

eeeeeyeah. OTOH, if you've got a really good person in, you can make them autocrat and still have a decent outcome.

I don't know how to ensure we get good people in there in the first place, nor how to keep a dynasty of them going, much less how to recover after we've lost.

[drewkitty.livejournal.com]

This problem obsesses senior military officers. One solution is military academies and a strong body of military law. Another solution is a system which filters for both competence and ethics, eliminating Liddell's "stupid but energetic" officer from the forces wherever he may be found. The requirement that an officer have a college education and "be a gentleman" is another stab at the same issue.

The problem is hard but smart people have worked on it in America for over two centuries.

Heinlein suggested that the career civil service should establish an academy system for civilian bureaucrats, particularly those who oversee contracts and fight corruption.

[drewkitty.livejournal.com]

The duty of a military officer is to obey the lawful orders of his chain of command. In a representative democracy, the Commander in Chief is a civilian.

The duty of obedience is fundamental. The only honorable alternative is resignation, and even then, only off the battlefield.

The obedience is intelligent, informed, and if necessary after respectful dissent -- but the only way to have an army and not a mob or a banana dictatorship.

[elfs.livejournal.com]

Interestingly enough, Richard Kohn has an essay entitled "Always Salute, Never Resign (http://www.foreignaffairs.com/articles/65644/richard-h-kohn/always-salute-never-resign)," in which he argues:

Military leaders who claim that they are resigning for moral or professional reasons are imposing their own conceptions of morality and professional behavior on the country. While there may be general group norms, these kinds of judgments always vary by individual. Even supposed norms provoke considerable disagreement within the military. Resigning because of moral doubts also violates the military's subordination to civilian authority and contravenes an officer's oath to support and defend the U.S. Constitution.

It's a strong argument that, once you've reached a level of authority that brings you Congress's attention, your duty to maintaining a solid appearance of civilian rule is more important to the ongoing success of our national experiment than one's own convictions. If you can't resolve that to your moral satisfaction, you should resign before being promoted to such a position. It's like the Peter Principle, writ military.

[shunra.livejournal.com]

How does that sit with the principle made abundantly clear in the Nuremberg trials, about "following orders" not being an acceptable nor sufficient defense?

[elfs.livejournal.com]

That's a good question. Although Kohn is clear that this is an issue about one having qualms about legal orders. Obviously, the defendants at Nuremberg were following "legal" orders.

[shunra.livejournal.com]

There is an interesting discussion of this which leaves matters pretty muddy.

I mean, what is "manifestly unlawful"? How can you tell?

[caraig.livejournal.com]

Once upon a time, 'torturing prisoners' was 'manifestly unlawful.'

Now? I wish I knew. I realize that the definition of an 'illegal order' is inherently grey -- the UCMJ can't delineate every possible case -- but now, I just don't know; we've been sunk into a civil meme war where the very definition of words is being fought over.

[drewkitty.livejournal.com]

Torturing prisoners (POWs and persons whose status has not been adjudicated) is clearly, unambiguously a violation of the Geneva Conventions and the law of land warfare, as well as a big chunk of international law, the Hague Conventions, etc. Donald Rumsfeld had better not travel to Europe in the next decade or so, or he might find out personally.

http://en.wikipedia.org/wiki/Hamdan_v._Rumsfeld

[drewkitty.livejournal.com]

Interestingly.

An officer must be educated in the law of land warfare. As important if not more, an officer must have the moral courage to violate an order that would violate the law of land warfare -- i.e. an order to shoot prisoners or destroy medical supplies.

[mouser.livejournal.com]

RICHARD H. KOHN is Professor of History and Adjunct Professor of Peace, War, and Defense at the University of North Carolina at Chapel Hill. He has been Chief of Air Force History for the U.S. Air Force and Omar N. Bradley Professor of Strategic Leadership at Dickinson College and the Army War College.

He speaks as an arm chair general, not as someone who has ever had to make the choice between order, oath, and morality.

At the end of the day, soldiers are humans not automatons. I can come up with hypothetical and historical on both sides of the issue. "I was just following orders" and "That may be the law, but the law is WRONG!"

What it all boils down to is "Can you live with yourself in the wee hours of the morning?" and what are you willing to risk? Your life? Your fortune? Your sacred honor?

U.S. soldiers of all branches all make the same oath:

I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God. (National Guard is different and mentions the states, and the last sentence is optional.)

The order is intentional, as is the phrase "True Faith". It's not "I'll blindly follow orders" it's "I'll do the best I can for the country and the people."

You do also risk courts-martial, of course.

(Former Enlisted, U.S.A.F)

[ionotter.livejournal.com]

That is the enlisted oath, not the officers oath. It does not contain the passage about obeying. To wit:

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.

[drewkitty.livejournal.com]

The author of the piece is a Lt. Colonel. He will probably not make full Colonel, and will certainly not get his first star.

[caraig.livejournal.com]

What the hell? No, really, what the hell? Unless I've badly misinterpreted my memory of the UCMJ, this is virtually sedition. Was this at least clearly billed as an opinion piece?

[mouser.livejournal.com]

Your memory is correct, but there can be situations where you don't follow legal orders:

"Fire on the enemy position" should probably not be followed if they've taken up a position in a school. Legal, but not ethical or moral.

The circumstances are very rare when you wouldn't get a Dishonorable (or General) Discharge, though.

[drewkitty.livejournal.com]

http://en.wikipedia.org/wiki/Lieber_Code

http://www.civilwarhome.com/liebercode.htm

(Article 15)

15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy's country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.

[shockwave77598.livejournal.com]

Yes, there are times you have to disobey an order. Those of us who served in nuclear forces know it well, and I've seen the biggest bigshots get guns pointed at them as they were pulled off a plane. Thing is though, that we KNOW that we are going to face charges for doing so. We didn't try to shirk the consequences of our acts. And we didn't disobey for no reason, like Col Red State here is trying to do.

I hold to that to this day. Yes, I'll break a rule if necessary. But I'll accept the consequences of doing so too, so I don't do it lightly.