In a recent article published in Joint Forces Quarterly Lieutenant Colonel Andrew M. Milburn provoked quite a bit of controversy by insisting that officers had an affirmative duty to disobey lawful orders under a variety of circumstances. This description of Milburn’s views may seem murky, but that is only because his views are murky. Milburn claims there is a “moral” obligation to dissent, but the conditions that trigger this “obligation” lack coherence. Consider two examples he uses in setting up the debate issue.
The first is “the decision by the Coalition Provisional Authority in May 2003 to disband all Iraqi security institutions….” Milburn claims – actually asks us to assume – that there were “bad polices that fueled the nascent insurgency” and furthermore that “these consequences can be deemed predictable by the reasonable man.” The second are the various decisions on detainees by the Bush Administration regarding the applicability of the Geneva Conventions (clarified by Hamdan v. Rumsfeld) and habeus corpus (clarified by Boumediene vs. Bush). As Milburn notes, the Bush Administration’s policies “infringed on the U.S. Constitution, which military professionals have sworn to support and defend.”
These two sets of issues frame what Milburn considers a professional duty to dissent, a dissent his insists ought to be pursued in the most effective way possible. But these two issues are fundamentally different. The first is, perhaps, a bad policy decision. The second is a bad moral and legal decision. Military professionals do absolutely have a duty to dissent against the latter, but while they may raise objections through the chain of command, they have a duty to obey the former.
Milburn’s refusal to distinguish between bad judgments on one hand and criminal and immoral acts on the other is the fundamental flaw in his argument. Oddly, many of Milburn’s critics, which disagreeing with his conclusions, also seem unwilling to separate the two.
Blogger Gunslinger at the well-respected site Ink Spots, writes, “Morality is subjective to the holder of moral views. And there is no room in the uniformed military to impose one’s personal views on the execution of his or her duties. The only true and accepted basis for not performing one’s duties is the legality of the orders given to the officer.”
Similarly, Dr. Richard Kohn writing at Tom Rick’s blog Best Defense excoriates Milburn:
But trying to overturn or block the decisions of the officials put into office by the American people is altogether different. If attempted by more than one officer, or as the product of discussion, disobedience becomes conspiracy and revolt, not exactly moral by any stretch of the imagination.
But in failing to account for legitimate moral objections, Kohn is making the same mistake as Milburn, but in reverse. Kohn and Gunslinger are, essentially, insisting on the Nuremberg Defense. Gunslinger because the military ought not make moral judgments, Kohn because the orders of elected officials must be considered sacrosanct.
The key to understanding the issue is that there is indeed a professional obligation to dissent. I wrote about this earlier (Professionalism in Foreign Policy), where I argued:
In the recent past, we seem to have lost this sense of a president as a fallible public servant served by honorable professionals who are duty-bound to oppose a rash or unlawful decision. Instead, we have come to see the president as a quasi-monarchical figure, endowed by virtue of national elections with some sort of unique insight and wisdom, and in a very real sense existing above the law.
Worse still is the lack of professionalism shown by some senior military officers. The case of Gen. Michael Hayden is particularly problematic. General Hayden, while a serving member of the U.S. Armed Forces, failed to refuse an unambiguously unlawful order. The domestic espionage program he oversaw as director of the National Security Agency for roughly 18 months after 9/11 until changes to the program were made after the infamous midnight meeting in Atty. Gen. John Ashcroft’s hospital room was clearly unlawful. Hayden has argued that he relied upon White House guidance in ignoring statutory requirements. But absolving military officers of their obligation to resist unlawful orders simply because their superior assures them the order is legal makes the obligation meaningless. For his dishonorable conduct Hayden ought to have been subject to court martial. Instead he was promoted to director of the CIA.
This issue here is quite different from the decision to disband Iraqi security forces. Yes, policy professionals, including military professionals have an obligation to oppose immoral orders – such as orders to torture and murder. And they have an obligation to oppose unlawful orders, even if some lawyer lackey writes a memo claiming they are lawful. Recall that John Yoo, for instance believes there is no legal bar to a president ordering a child’s testicles to be crushed. Yoo, because of the various peculiarities of how the Department of Justice works was, for a time, unilaterally allowed to determine the legality of various interrogation techniques. But Yoo’s status was no different than that of a military officer. Both were government employees, and as a practical matter, there is no fundamental moral reason why an officer faced with such a clearly immoral and unlawful order should not ask for further clarification.
What Gunslinger ignores is the issue of peremptory norms – jus cogens – “fundamental principle(s) of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.” There can certainly be debate over whether an action violates jus cogens. But I would argue it is not only permissible but required for military officers to question, dissent, and ultimately refuse orders that they believe violate peremptory norms, even if a war criminal like John Yoo has signed off the orders.
This is also true of clearly unlawful actions; actions that violate the plain language of existing statutes, and again the obligation to dissent here exists regardless of internal classified memos until the issue is unambiguously resolved by the Supreme Court.
What Kohn ignores is the issue raised by the following debate over the Bush Administration’s unlawful domestic surveillance programs:
The analysis is flawed, in fact facially flawed,” [Deputy Attorney General James] Comey said. “No lawyer reading that could reasonably rely on it.”
[White House Counsel Alberto] Gonzales said nothing. [Counsel to Vice President Cheney David] Addington stood by the window, over Cheney’s shoulder. He had heard a bellyful.
“Well, I’m a lawyer and I did,” Addington said, glaring at Comey.
“No good lawyer,” Comey said.
The “no good lawyer” test is the professionalism test. But agreeing that officers have a duty to challenge immoral orders and unlawful orders (even if the legality of the order has been affirmed within the executive branch) is a far cry from the idea that officers should block the implementation of policy options they believe will have a “negative consequence” of any sort, which is essentially the test that Milburn proposes.
The key is to balance a condemnation of the Nuremberg Defense without opening up the door to a soft coup. Milburn certainly misses that balance. But so do most of his critics.