When Not to Obey Orders

July 8, 2019

During the Austro-Prussian War of 1866, a Prussian officer defended himself from reprimand by arguing that he was simply following orders. His commander, Prince Frederick Charles, reportedly replied: “His Majesty made you a Major because he believed you would know when not to obey his orders.” It’s a simple vignette, but the question that it raises is anything but simple: When should a military officer disobey orders? I have always believed that those who answer, “only when those orders are illegal,” have probably not thought hard enough about the question. An officer’s oath of office, professional ethics, and obligation to subordinates may at times require him to dispute or even disobey a legal order.

The story of Frederick Charles and his overly obedient major came to mind last week when I read David Barno and Nora Bensahel’s article “The Increasingly Dangerous Politicization of the U.S. Military.” In it the authors recount how members of the White House staff asked the Navy to conceal the name of the USS John S. McCain during the president’s visit to U.S. sailors in Japan last month, calling the incident “the latest blow to the norms of military nonpartisanship.” They are right to be concerned. The request was brazenly political and ethically questionable. But what disturbs me most about the story is not that the request was made, but that someone in uniform obeyed it.

Nine years ago, while a student at the Marine Corps War College, I wrote an essay entitled “Breaking Ranks: Dissent and the Military Professional,” in which I argued that under certain circumstances, a military officer is obligated to disobey orders — even legal ones. My point was that the military officer is not an automaton. He has an obligation to the nation, derived from his oath to defend the constitution, and to his subordinates, implicit in the extraordinary position of authority he has over them, to exercise some degree of moral autonomy in the gap between receipt of order and execution. The higher an officer climbs in rank, the closer he comes to the nexus between policy and military strategy, and the weightier that obligation becomes.

Published in the Joint Forces Quarterly, the article elicited what I can only describe as a storm of protest from civilian academics and political pundits who perceived it as a wholesale challenge to the concept of civilian control of the military. Richard Kohn of the University of North Carolina excoriated the article, writing, “It should be assigned in every military school from pre-commissioning through Capstone so that it can be exposed for what it is: an attack on military professionalism that would unhinge the armed forces of the United States.” Although flattered, I noted he had missed my point completely. Admitting that military officers have moral autonomy and the obligation to act according to their conscience is not the same as granting them the license to do so free of consequences. The risk to career and reputation involved in such decisions means they will never be taken lightly.

Despite Kohn’s concerns, the Marine Corps saw fit to allow me to remain on active duty for almost a decade after writing that article, even promoting me to colonel and giving me command, without causing a noticeable drop in good order and discipline. And I remain convinced — perhaps even more so than when I wrote the article — that neither the military nor the nation is best served by having an officer corps that unquestioningly accepts Samuel Huntington’s injunction that “loyalty and obedience are the highest military virtues.”

To be clear, I am a proponent of the traditional view of civil-military relations in which military leaders offer their best military advice to civilian policymakers — the secretary of defense, the National Security Council, and the president — in a discussion that should be frank and forthright. Whether or not this advice is taken, the military leader’s role is then to execute or speak up and, as a last resort, resign. It isn’t the military leader’s job to challenge the executive on questions of policy. That is the role of Congress.

But I have one problem with this traditional view, or — more accurately — the manner in which it is commonly discussed and presented: It assumes an absolute clarity in interpretation that doesn’t always match reality. As officers, our oath is to the Constitution rather than to any individual or administration. That much is clear. But what exactly this means leaves some room for interpretation. At the highest levels, it means that military leaders have the obligation to ensure that there is a clearly defined military strategy that aligns with policy objectives. If there is no policy, nor any real plan beyond the military campaign, then perhaps it means that it’s time to speak up rather than simply execute. In Exit, Voice and Loyalty, the late economist Albert O. Hirschman offered three options for those who seek organizational change. Resignation by itself is unlikely to have effect, while subordinate push-back sometimes does.  Loyalty is indeed important, but a military leader cannot in good conscience then absolve himself from the consequences of that loyalty.

With the exception of a few brief flurries, there has been little Congressional scrutiny into the conduct of America’s wars since 2001. Nor does Congress appear willing to even reconsider the Authorization for Use of Military Force passed in the aftermath of 9/11, thus giving the executive a continuing blank check. Of course, for such a debate to happen, there would have to be a level of public interest fueled by a sense that the American public has something at stake. Perhaps that is what is missing.

“America is not at war; the Marine Corps is at war; America is at the Mall” was an oft-repeated refrain by graffiti artists in Iraq from Al Qaim to Camp Fallujah. A vanishingly small percentage of Americans serve in today’s military, so it is no surprise that they feel little personal investment in the wars currently fought on their behalf. Without more Americans personally invested, there is nothing to drive media attention or Congressional action. That may just be an unavoidable consequence of having an all-volunteer force — there’s nothing like the prospect of universal service to spur public debate.

“Can service members maintain a sense of purpose when nobody—not the general public, or the Congress elected to represent them, or the commander in chief himself—seems to take the wars we’re fighting seriously?” asks former Marine officer Phil Klay in an article published in the Atlantic last May. Klay concludes:

If your country won’t even resource the wars with what its own generals say is necessary for long-term success, what else is there to fight for? But if you think the mission your country keeps sending you on is pointless or impossible and that you’re only deploying to protect your brothers and sisters in arms from danger, then it’s not the Taliban or al-Qaeda or ISIS that’s trying to kill you, it’s America.

Klay’s argument is that it matters little that America holds the military in high regard and supports the man or woman in uniform, if superficial trappings of support don’t translate into a deeper sense of responsibility to ensure that their blood is shed for a coherent cause.

Although not explicitly mentioned by Klay, military leaders also have a responsibility to ensure that this happens. With a Congress less than zealous about its constitutionally mandated responsibility for oversight of foreign policy, it’s reasonable to expect those in uniform to question why service members are risking their lives for no clear purpose. To deny this responsibility in the name of obedience, as Kohn and the traditionalists do, allows U.S. military leaders less agency than was enjoyed by their 19th century Prussian counterparts. “Best military advice” is the well-worn phrase used to describe the responsibility that a military officer has towards his political masters, but it falls short in capturing the full extent of that responsibility. “Best military advice” shouldn’t provide shelter for an officer from the consequences of disastrous policy, allowing him without question to prosecute wars that drag on without purpose and at great cost.

It may seem that the question of dissent in terms of loyalty to the Constitution is of academic importance to most officers, the vast majority of whom will never rise to the rank that will allow them to have a say in matters of policy. But whether obeying civilian masters or a military chain of command, the question of agency — of having an obligation to exercise your own moral judgment — remains the same.

 

 

It’s not a topic that fits well into the curriculum of any school — there is no handy acronym that will teach an officer when to disobey orders. Discussions on the subject tend to gravitate to a very binary focus: the differentiation between legal and illegal orders. As officer candidates, regardless of service, we learn that we have a duty to obey all orders that are not illegal, yet many of us learn that it’s not quite as simple as that.

There are times when disobeying an order will lead to a better outcome than the consequences of following it. How can you tell when this is and what gives you the right to decide? Well, to paraphrase Frederick Charles, that’s why your country saw fit to give you a commission. You can’t just decide not to disobey an order because you don’t want to — you have to be confident that you are doing so in accordance with the ethics of your profession. And you had better be prepared to face the consequences if you are wrong.

At almost every stage of my career I have disobeyed orders deliberately, with a clear-eyed view to these consequences. As a lieutenant in Mogadishu, in defiance of an order not to give anything to the local population, I had my platoon distribute food in a restive part of the city cut off from the formal distribution points by the militia of a hostile warlord. As a lieutenant colonel and battalion commander, I authorized my company commanders to give gas to their Iraqi police partners so that they could patrol the streets even though there was a standing order forbidding me from doing so – an order intended to prompt the hopelessly broken Iraqi logistics system into action. Again as a lieutenant colonel, tasked with coordinating the evacuation of U.S. citizens from Libya, I disobeyed an order that no U.S. personnel were to set foot in the country when it appeared that only by doing so could we guide Americans through the chaos of Tripoli airport to waiting planes. And as a colonel and task force commander in Iraq, I authorized U.S. special operations teams on the ground to use their weapons — machine guns and mortars — against ISIL positions in order to relieve pressure on our Peshmerga partners, though by doing so, I was disobeying a directive that all fires had to be approved by a U.S. one-star general.

During my career I made decisions that weren’t the best, and some that were outright foolish — but I don’t count any of those just mentioned among them. In each case, I either lacked the time to explain my perspective or had no expectation that it would be understood. Nor would it have been practical to take the path of dissent vice disobedience — a course of action more appropriate to a higher level of command where the threat of resignation carries real weight. To give these examples coherence, I was confident that I remained loyal to the ethics of my profession in taking the path that I chose.

With the same rationale, if I had been in a position to execute the orders of the Coalition Provisional Authority in Iraq — to disband the Iraqi Army and to deny employment to former Baathists in the nascent government — I like to think that I would have refused. And, I would have been proud to exercise moral autonomy in refusing to carry out those enhanced interrogation techniques that appeared to me remarkably like torture. Both these examples illustrate why not even the stamp of civilian authority should render an order inviolate from ethical censure.

I use the term professional ethics deliberately aware that this is a category hard to define and open to criticism from the traditionalists, but impossible for any officer in good conscience to ignore. Of course, in order to accept the argument that military officers should be guided by professional ethics, you have to believe that they do indeed belong to a profession. In her essay “Questioning Military Professionalism,” Pauline Shanks Kaurin defines a profession as possessing a body of knowledge on which basis the public accords it certain privileges on the understanding that members of the profession will self-regulate and operate for the common or public good. As a career military officer, I would accept that as a good description of my profession. And Kaurin’s reference to the public good is a reminder ± not often stated — of my profession’s implicit pact with the American people. “To talk about the military as a profession,” Kaurin adds, “is to say that the ethical values are generated from the identity and nature of the profession…..”.

In May 2017, Army Chief of Staff Mark Milley made headlines when, in an event organized by the Atlantic Council, he called for “disciplined disobedience,” explaining that sometimes this will be necessary in order to “achieve the higher purpose.” In a narrow sense, his comment was not really controversial at all. He was simply calling for adherence to the U.S. military’s proclaimed doctrine of mission command which holds the purpose of an order more important than any specified task. But mission command followed to its logical conclusion will sometimes lead an officer to have to divine what that higher purpose is, which may mean redefining the mission. Professional ethics provide him with a guide for doing so – and professional ethics take the decision to disobey beyond simply finding an alternative means to accomplish the mission. Because sometimes neither the mission nor purpose is the right one, like covering the name of a ship, for instance, simply to avoid potential embarrassment to the Commander in Chief.

In none of the examples of my own disobedience was I confident that my immediate superior would have appreciated my decision. I was confident however, that I remained true to Milley’s requirement that “disobedience, when done, must be done with trust and integrity, and you must be morally and ethically correct.” Note that Milley didn’t feel it necessary to explain what he meant by this, trusting perhaps that military officers understand their obligation to figure out for themselves what morally and ethically correct might mean.

When officers fail to do so, it can lead to tragic consequences. In 2017, two collisions in the Pacific led to the death of 17 sailors. Although the proximate causes of both accidents were attributable to mistakes by sailors aboard the ships involved, the deaths were ultimately the responsibility of a chain of command that tolerated systemic problems, leading to poorly equipped ships manned by overworked and under-trained crews. And in the last instance, for the sake of mission, two captains decided to go to sea with crews that were woefully ill-prepared. And it was the crews who paid for that decision.

“But at the end of the day,” summarized Adm. John Richardson, chief of naval operations, “Our commanders make decisions and our sailors execute — and there is an outcome.”

Richardson’s comment emphasizes the importance for military officers of understanding their obligation to enlisted subordinates. And for those who don’t accept the argument that loyalty to the Constitution and professional ethics provide sufficient grounds for dissent, it is this obligation that is perhaps the most compelling.

“The mission and then the men” is the phrase dinned into all of us from our first days in uniform. It seems a rule whose validity is so obvious that it need hardly be stated. Good order and discipline — the very fabric of any military organization — depends on leaders understanding that there will be times when they have to order their subordinates to do things that will cause them hardship or worse. But if the mission involves risking subordinate lives for the pursuit of goals that are unobtainable or indecipherable, at what point does the leaders’ responsibility shift from the mission to the men? There may be officers who would reply “never,” but by doing so they miss the implications of an important distinction between their oath of office and that taken by enlisted personnel.

The two oaths differ in one key respect. Both swear to support and defend the constitution against all enemies foreign and domestic, but while officers then state that they have no reservations about taking office, and promise to execute their duties to the best of their abilities, enlisted personnel pledge to obey all those placed over them. This distinction places an implicit burden of responsibility on officers to not ask them to do dumb things. The Seventh Fleet chain of command would have done well to bear this obligation in mind.

These examples illustrate that America has more to fear from an officer corps of automatons than from one that accepts a role for dissent within its profession. With its emphasis on ritual, tradition, and hierarchy, the U.S. military is a culture already far removed from the society that it protects. Perhaps that is a necessity given the grim nature of its mission. Remove a belief in moral autonomy from that culture, replace it with simple obedience and that divide becomes unhealthy. Whether refusing to cover a ship’s name or questioning the policy objectives of an interminable and costly war — or even demanding due consideration before embarking on another one — dissent enables us to stay true to our oath of office and our implicit pact with the American people.

 

 

Andrew Milburn is the former commanding officer of the Marine Raider Regiment and Combined Special Operations Task Force-Iraq.  He retired earlier this year as the chief of staff at Special Operations Command, Central, and is the author of a forthcoming book, When the Tempest Gathers.

 

Image: U.S. Air Force photo by Airman 1st Class Harry Brexel