What Discord Follows: The Divisive Debate over Military Disobedience

In The Soldier and the State, Samuel Huntington tells a story of a German officer in World War II who strongly believed his government was wrong, but also strongly believed his professional ethic required him to obey his country’s leaders, even when they were wrong. Unable to live with either obedience or disobedience, he chose to walk into Polish machine-gun fire. His professional and personal ethics could not be reconciled. While Huntington appears to have embellished this particular story, it is a good illustration of the dilemmas officers and soldiers face around the world: should members of a professionalized military obey, disobey, or resign when they feel their government’s policies and strategy are wrong? The Nazi regime may be an easy case for democratic sensibilities, but professional and moral obligations come into conflict frequently in less extreme cases.

There is no relationship more critical to the operation of military establishments — and the defense of their governing institutions — than the reliable execution of orders. But nearly everyone agrees that there are times when orders should not be obeyed. Reasonable people can disagree on how and where to draw the line on when officers should exercise moral autonomy. They can also disagree on which lines are most important to draw.

At one extreme, one could argue that the individual gives up no moral agency in taking the oath of office and should exercise individual judgment over every order. This position — or something like it — was laid out recently by Andrew Milburn in “When Not to Obey Orders.” On the other end of the spectrum is the idea that individuals must give up most moral agency in order to safeguard the procedural legitimacy of the principal-agent relationship that characterizes healthy democratic institutions. At its most extreme, this position holds that even resigning in protest is inappropriate because it places the agent’s judgment above the principal’s, or grants the agent leverage over the principal through the ability to threaten resignation if the principal makes choices of which the agent does not approve. Traditionally, this position has been taken by opponents of Milburn like Richard H. Kohn, who staked out a clear and decisive position: “the military possesses no autonomy of any kind not derived from civilian political institutions.” Kohn and Milburn even had a direct debate on the topic in a 2011 Ethics Symposium at the U.S. Naval War College.

 

 

Public responses to the arguments of Milburn and Kohn have sometimes been confused, largely because both make sweeping claims that should really be disaggregated. We argue that the question of how much autonomy an officer ought to exercise (ranging from none to absolute) cannot be answered once and for all, because the officer’s judgment has a different value in different contexts. We break these down into at least three distinct questions: whether to obey orders that would be counterproductive to the mission, whether to obey orders that would be immoral (but not necessarily illegal), and whether to obey orders that appear to the officer to undermine the political order or the national interest. The first line of argumentation is couched in the military vernacular of “mission command,” and holds that officers should disobey specific commands in order to accomplish the higher intent or mission. The second argument emphasizes officers as moral agents who have obligations to their own conscience and to protect their subordinates from unethical or unnecessarily dangerous actions. The third says that military officers should refuse (or otherwise resist) orders when they disagree with the broader strategic or policy objectives.

One reason for these different positions could be the fundamental assumptions from which they build their arguments. Kohn starts from the principle of civilian control of the military and concludes that, to keep that principle safe, the military officer must always obey orders, even ones he finds unwise or immoral, unless they are clearly illegal. Milburn starts his argument from the premise that officers have responsibilities to both the nation and their subordinates, and that this responsibility always requires the individual’s moral judgment to be an important part of his or her decision about what to do. All of these principles are important and worth protecting, and that means sometimes they will come in conflict, and it is not clear how to tell which one should prevail under any given circumstances. By explaining how these issues play out in three different contexts of disobedience, we try to bring more clarity to the discussion.

Effective national security policy is only possible when the policymakers, the policy-implementers, and the public understand each other and share a common ethical language. By clarifying what principles and outcomes are at stake in this discussion, we hope to lay the groundwork for more fruitful conversations on the military’s professional ethics and role in ethical national security policy in the future.

To Obey or Not Obey

In the mission command argument, proponents for selective disobedience hold that military officers should use agency and judgment in accomplishing the purpose of orders, even if a specific task must be modified or ignored. Of the prongs of the disobedience argument, this is the least problematic. Most people, both military and civilian, would agree that military personnel should not be unthinking automata who carry out obviously counterproductive orders. Battlefield improvisation is neither new nor something the U.S. military denigrates. Adherence to the “commander’s intent” is often valued above allegiance to any particular task, as changing circumstances might require achieving the goal at the expense of the original plan. The U.S. Army chief of staff, Gen. Mark Milley, said as much when describing a fictional officer he had ordered to seize “Hill 101”:

“I’ve said the purpose is to destroy the enemy,” Milley said. “And the young officer sees Hill 101, and the enemy is over on Hill 102. What does he do? Does he do what I told him to do, seize Hill 101? Or does he achieve the purpose, destroy the enemy on Hill 102?”

The premises of this argument are that accomplishment of the mission is more important than the principle of obedience, and that the person closer to the action may be in a better position to judge what will and will not accomplish the mission (assuming that person has been fully informed/fully understands what the mission is). These premises can be questioned — the whole point of a hierarchical military structure is because sometimes a broad overview is more important than the tactical perspective — but in general, professional militaries want their officers to use their professional experience and judgment to make calls at the point of action.

Mission command at the tactical level is permissible and even expected. The second argument, however, is slightly more difficult to apply in practice. This argument says officers should disobey or resist when they receive orders that violate the officer’s conscience. We think most people would agree that there is some point at which the individual officer’s moral sensibility must take precedence over his or her lawful orders. Milburn also makes it clear that the officer who disobeys must be prepared to accept the consequences, and while mission command-type disobedience is unlikely to have adverse consequences, disobedience based on moral or normative objections may end an officer’s career. It should be noted that the autonomy Milburn and company prescribe is not in reference to overtly illegal or morally dubious acts, like the kind that have characterized past atrocities, have recently plagued the military justice system, or have arisen in debates over military implementation. All parties to the debate are largely in agreement that military officers are obliged to resist manifestly illegal orders. Milburn’s argument goes further: Officers cannot be content with an order merely passing the criteria of legality.

While very few people argue that individuals must give up all moral agency when they take an oath of office, it is not simple to determine when to follow professional versus personal morality. We obviously do not allow officers to discriminate against subordinates whom they personally find morally offensive, nor do we allow officers to countenance behavior that is against regulations even if they personally agree with it (e.g., sexism). At the other extreme, it is possible to imagine orders that are legal but morally reprehensible, and most of us would probably praise an officer who sacrificed his or her own interest to resist that order. But this avoids the hard question of how to tell when it is appropriate to substitute one’s own morality for procedural legitimacy. As Milburn points out, deciding in favor of the former requires serious deliberation and a strong sense of professional ethics.

These first two arguments are generally uncontroversial. While we can argue about specific instances, most people probably agree that military officers ought to exercise both tactical judgment and some personal moral agency. It is the third argument that raises bigger issues: that military officers should disobey (or resign in protest) when their orders support the mission but they think the mission or goal is wrong, or contrary to the national interest,  , or insufficiently justified or clarified by the political leadership. It is the idea that the parable of Hill 101 operates just as effectively and legitimately at scale. This is not an uncommon attitude, but it is a significant departure from traditional civil-military norms, so it is worth unpacking the assumptions that underpin it.

Selective disobedience advocates like Milburn justify military autonomy in response to political disagreements in two ways. First, they argue that taking the “mission command” concept to its logical conclusion “will sometimes lead an officer to have to divine what that higher purpose is, which may mean redefining the mission.” They push this beyond the realm of mere tactical or operational analysis, though, to claim that officers also have a responsibility to ensure a “clearly defined military strategy that aligns with policy objectives.” But civil-military traditionalists, many ex-military analysts among them, would likely emphasize the point at which this concept no longer scales, namely when civilian leadership is setting the strategic agenda. While military leaders, Milley remarked, can engage in “disciplined disobedience” on the battlefield, democratic norms designed to prevent a small and powerful minority — the military — from driving national policy require obedience to elected officials and their representatives. This is the crux of the “unequal dialogue” to which civil-military scholar Eliot Cohen refers and to which most officers were exposed in their professional education. Once the conversation includes suits rather than stars, they would argue, the “blood-brain” barrier for mission command emerges.

In addition, the disobedience argument typically advances the dangerous belief — most familiar in states plagued by military coups — that officers are the best agents to defend the public interest. Advocates may be right that an oath to the Constitution, rather than to any administration, may in theory mean the officer must defend the rule of law rather than the regime should those two things conflict. But neither the officer’s oath nor the U.S. Constitution says anything to suggest that the military has a right to overrule civilians on matters of strategy or policy. In part, this is merely a critique of the Huntingtonian notion of objective control. However, when this critique is based on the faulty notion that officers derive superior moral judgment and authority from their constitutional oaths and their willingness to risk themselves, one of the most fundamental threads of democratic civil-military relations begins to unwind. Putting aside the fact that many civilian policymakers take a similar oath, the idea that officers have a moral responsibility or duty to influence policy sets a dangerous precedent that takes fundamentally political decisions out of the hands of democratically elected politicians. It also devalues the rights of all the citizens who do not serve in the military, implying that their expression of political agency through elections is less valid than the judgment of military officers.

For example, Milburn believes officers should resist or disobey when Congress fails to perform “its constitutionally mandated responsibility for oversight of foreign policy,” to ensure that military “blood is shed for a coherent cause.” This argument has several flaws. What happens when — inevitably — officers disagree about the extent to which Congress is engaged in foreign policy oversight, or whether the cause Congress approves is “coherent” and appropriate? How can the military decide if its blood is shed appropriately without also deciding what the national interest is? How does one distinguish between a lack of congressional oversight and simply a democratic acceptance of the status quo? Moreover, if military officers have final say in how the military should be used, they also get to determine an array of other political decisions about the use of resources. Military budgets, acquisitions, and domestic activities all become subjects about which officers know better than the voting and tax-paying public. The argument that the military should ignore democratic decisions because it pays the price in blood ignores the basic logic of democratic decision-making, and sets the stage for the military to be the guardian not only of national interests, but also of its own organizational interests. More than one coup has been motivated by a military’s desire to assert policies that benefit itself at the expense of the rest of the country. It takes considerable mental gymnastics to argue that an oath to the Constitution — which places foreign policy oversight squarely in the hands of democratic institutions — actually demands rejecting the decisions of those institutions.

It would be one thing if proponents of this third disobedience argument simply advocated for officers to provide a contrary voice or resign in the face of orders that they believe are contrary to the national interest. Milburn, however, speaks dismissively of the effects of resignation and push-back, and repeatedly suggests active disobedience as a legitimate option. Military disobedience in response to fundamentally political disagreements is antithetical to perhaps the most important American national interest: the preservation of democratic norms that keep political decisions in the hands of the population. Why do so many observers overlook this potential consequence of the disobedience treatise?

Bridging the Scholar-Professional Gap

We suggest several reasons why many observers have traditionally failed to appreciate the dangers of this argument. One explanation is simply that, as seems to be the case in Milburn’s most recent take, these three logics are often conflated. If one accepts the idea that an officer must exercise judgment and retain moral agency, then why should she or he not also exercise judgment over the wisdom of a policy or military operation?

A second reason may be that most people tend to focus on ideas that they can relate to from their own experience. Scholars of civil-military relations think about these issues of military obedience and civilian control a lot, and many are familiar with the history of the selective disobedience philosophy. Moreover, civil-military relations scholars are primed to identify military behavior that poses a threat to democratic norms. Academics have commonly believed these aspects of the disobedience argument overshadow more reasonable claims and have focused their attention accordingly. Conversely, those in the military or government may understandably gravitate to the ideas that have the most relevance to them: how to deal with orders from a direct superior when they seem unwise or unsavory. Few military professionals are faced with opportunities to disobey orders relating to national policy, but all encounter superiors’ orders and questions of mission command on a daily basis.

Third, people may have fundamentally different perceptions of the plausibility and seriousness of the third line of argumentation. It is possible that the general observer of security affairs believes democracy and civilian control are fundamentally safe in the United States. There are plenty of reasons to have faith in American democratic institutions and their coup-free history. Civil-military scholars, drawing lessons from historical experiences in other countries, may be more skeptical of the idea that democratic norms cannot be eroded in the United States as they have been elsewhere. They may be particularly sensitive to the fragility of civilian control in the context of a highly polarized political environment that has frequently painted members of the military as “adults in the room” who can restrain the president or save the country from his more impulsive tendencies. These concerns become all the more prevalent if people gravitate toward different parts of the argument due not just to their identity as either professionals or scholars, but because of party identification or political ideology.

Different people are always going to have different reactions to controversial arguments. However, the responses in this case have worrying implications for civil-military relations. What does it say, for example, if only scholars of civil-military relations pick up on this controversial third argument? If non-scholars simply do not notice this implication amidst the more reasonable first two claims about mission command and immorality, there is little to worry about. Things get stickier if they notice the third argument and think it unproblematic. Such an attitude is especially concerning  if people are persuaded by appeals to grant the military superior moral authority by virtue of its great sacrifices. If high rates of public support for the military translate into a belief that the military should have more of a say in political decisions, democracy is in trouble. It may not be realistic for every citizen to become a scholar of civil-military relations, but it is important to have a basic familiarity with the reasons for the current division of responsibilities between the military and civilians. It is dangerous to privilege the military’s voice in debates over civilian control, but that seems to be exactly how many citizens have historically responded to the disobedience argument.

Where to Go from Here?

The debate over selective disobedience should not be viewed as a parochial squabble or an internecine vanity exercise for security scholars and policy practitioners. Arguments like “When Not to Obey Orders” have always been controversial and should be scrutinized accordingly. But the varying reactions to this argument reveal that national security and civil-military analysts — on both sides of the hyphen — have more shared ground on this question than is often acknowledged. And, as Jim Golby, Peter Feaver, and one of the authors of this article (Lindsay Cohn) have pointed out, both civilians and members of the military view military disobedience as more acceptable today than they did in the past. We need to consider not only the differences between these groups but also their commonalities in order to maintain confidence in democratic institutions and military actors.

First, whether you study the organizational ethics of disobedience, its institutional implications for democracy, or its effects on the efficacy of the defense apparatus, all levels of this discussion are holistically important and help us diagnose the state of civil-military relations. But each community would do well to heed the concerns of the other. Practitioners, veterans, and scholars should note that while policy decoupled from user-level concerns may be of limited use, so too is policy unenlightened by theory. A mutual recognition of these concerns not only leads to a more robust debate but allows us to place it in the proper context. This also obliges scholars of U.S. security studies or American political institutions to recognize that, in many ways, they can no longer afford to assume that they traffic in rarefied air. Instead, concerns over military politicization and frayed civil-military relations mean using a shared vocabulary with comparative scholars studying democratic backsliding in the broader West or state failure in the developing world.

Second, practitioners or veterans who are removed from the theoretical level of political science or security studies need to appreciate the gravity of cross-national institutional trends and the perspective that they afford. This means the academic community needs to be able to have a concerted discussion about the state of U.S. civil-military relations without, as Loren DeJonge Schulman puts it, being reduced to “coup chicken littles.” Problematic civil-military relations are not purely an artifact of the developing world, nor should discussion of this issue be relegated to failed states or military regimes. Trends like military politicization should not be dismissed out of hand, nor should fear of an imminent coup be necessary to make the health of civil-military relations an urgent discussion, whether in the United States or in other countries.

This means attending to important trends in the political-military relationship, whether you believe in the “moral autonomy” of military officers or not. High public confidence in the military is often used as an argument against having a discussion about military effectiveness, when it may actually require one. While it might be easy to assume that democratic institutions are safely insulated from these issues — passing on political debates in favor of organizational ones — concerns about the politicization of the military and its potentially deleterious effects have been discussed again, and again, and again. In short, those responding only to the battlefield-level implications of selective disobedience would do well to look up once in a while.

Finally, scholars of institutions and comparative politics who might be removed from the user-level experience of the military should similarly lend credence to service-members’ concerns over a crisis of professionalism. In his original 2010 Joint Forces Quarterly article, Milburn deemed disobedience legitimate when orders were “likely to harm the institution writ large.” How does this argument function in an era of hyper-military politicization, retired military activism, and wide-scale disenchantment with U.S. military interventions, all of which are institutionally damaging? In this regard, appeals to the USS John S. McCain incident draw attention to a legitimate concern. Amidst similar stories like the Fourth of July parade, expecting military custodianship over civilian-led processes, or the proposed pardoning of suspected war criminals: When do the military officer’s various obligations start to conflict?

Scholars of democracy and institutions are likely to agree that a constrained military is necessary for a free society to function, and that having a non-partisan military is essential in order to achieve that end result. But is the military’s organizational ethic of non-partisanship more important than obeying civilian orders? Security and military efficacy analysts might similarly contend that a cohesive organization that maximizes investment in its people is necessary for an effective fighting force. Then is the expectation of obedience to civilian policy more pressing than concern for the welfare of subordinates? The “disobedience” argument, even unintentionally, prompts a wider discussion about the logical conclusion that such thinking requires. A debate of this complexity and import demands not just industry of thought, but mutual appreciation for the multi-disciplinary approaches necessary for a satisfactory answer.

 

 

Lindsay P. Cohn is an associate professor in the National Security Affairs Department at the U.S. Naval War College. Her research focuses on civil-military relations — particularly personnel issues, public opinion, and democratic theory. Before joining the Naval War College, she spent a year at the Pentagon as an assistant to the deputy assistant secretary of defense for special operations and combatting terrorism, and was an assistant professor of political science at the University of Northern Iowa.

Max Z. Margulies is an assistant professor of international affairs and director of the Rupert H. Johnson Grand Strategy Program at the United States Military Academy. His research interests include military recruitment and personnel policies, military effectiveness, and civil-military relations. He received his Ph.D. in political science from the University of Pennsylvania in 2018.

Michael A. Robinson is an assistant professor of international affairs at the United States Military Academy and an active-duty Army strategist. His research interests include comparative civil-military relations, public opinion, and democratic institutional trust. He received his Ph.D. in political science from Stanford University in 2018.

The views expressed here are those of the authors and do not reflect the official policies or positions of their institutions, including the Department of the Navy, Department of the Army, Department of Defense, or any part of the U.S. government.

Image: U.S. Marine Corps