Lieutenant Colonel Andrew R. Milburn, USMC, is assigned to Special Operations Command, Europe, Future Operations (J3).
And so it goes...
Richard 
Breaking Ranks: Dissent and the Military Professional
LTC Andrew Milburn, NDU Press, 2010
Part 1 of 4
There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order. In supporting this assertion, I discuss where the tipping point lies between the military officer's customary obligation to obey and his moral obligation to dissent. This topic defies black-and-white specificity but is nevertheless fundamental to an understanding of the military professional's role in the execution of policy. It involves complex issues—among them, the question of balance between strategy and policy, and between military leaders and their civilian masters.
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.
In the face of such a dilemma, the military professional must make a decision, which cannot simply owe its justification to the principle of obedience, and must take responsibility for that decision. But when and on what grounds should the officer dissent? And how should he do so? I offer three propositions:
1. 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.
2. 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.
3. In deciding how to dissent, the military officer must understand that this dilemma demands either acceptance of responsibility or wholehearted disobedience.
Before supporting these propositions, I discuss the "traditional" view of civil-military relations, which owes much to Samuel Huntington and his theory of objective control.
Obedience as Virtue
Samuel Huntington's The Soldier and the State remains the touchstone for the study of civil-military relations. However, the book should be viewed in its historical context, written as it was over 50 years ago at the height of the Cold War when the obvious need to centralize decision authority for the use of nuclear weapons lent support to a strict interpretation of civilian control. No doubt also fresh in Huntington's mind was General Douglas MacArthur's narrowly averted threat to cross the Yalu River and thus escalate the Korean War. Huntington's concept of "objective control" delineates clear boundaries between the realm of the soldier and statesman; the former is afforded some functional autonomy within his area of expertise but very little moral autonomy. Huntington argues that the military professional is on thin ice if he dissents on any grounds other than purely military or legal—and that ultimately, his overriding obligation is loyalty to his civilian masters. For Huntington, there is no middle ground: "When the military man receives a legal order from an authorized superior, he does not hesitate, he does not substitute his own views; he obeys instantly."1
Huntington's views still have strong influence on U.S civil-military relations today, and this may explain why, despite some ruffled feathers at the nexus between policy and military operations, there have been few recent cases of U.S. military leaders protesting the orders of their civilian masters. As General Richard Myers and Dr. Richard Kohn point out, "There is no tradition of military resignation in the United States, no precedent— and for good reason."2
This "good reason" is the principle of civilian control that is embedded in the U.S. Constitution. It gives Congress authority to raise the military, to set the rules for military conduct, and to decide whether to authorize war. It also makes the President the Commander in Chief of the military. Traditionalists argue that this principle is incompatible with any theory of civil-military relations that does not obligate the military professional to absolute obedience. In their view, dissent is justified only under the most exceptional circumstances and must be confined to the purely military aspects of a decision. The Nation's civilian leadership, they argue, has the "right to be wrong."3
The comments of General Myers and Dr. Kohn about resignation are quoted from an article entitled "Salute and Disobey?" An impassioned and ostensibly well-reasoned defense of the traditional view of civil-military relations, the article was published in response to accusations of excessive docility among the Nation's military leadership in the conduct of the war in Iraq. The authors object to the idea that a military officer should refuse an order on moral grounds because "one individual's definition of what is moral, ethical, and even professional can differ from someone else's."4 This claim appears to let the military officer off the hook from making any moral decisions. That argument, by logical extension, would deny the existence of a military profession at all—by relegating its role to the bureaucratic function of executing instructions. It also reflects a weakness in the traditionalist argument by denying moral autonomy to a profession with a clearly defined code of ethics and an oath of allegiance not to any one person, but to the Constitution. I argue that these obligate members of the military profession to exercise moral autonomy beyond its commonly accepted responsibilities to proffer the executive branch candid advice and speak truth to Congress.
The Military Profession
A survey conducted among students at the Marine Corps War College (MCWAR) in January 2010 reveals a view of the military profession that contrasts sharply with the Huntingtonian model espoused in "Salute and Disobey?" The sample is admittedly small; nevertheless, it represents a cross section of 20 senior field-grade officers from all Services and two foreign countries. Without exception, they agreed that there are circumstances under which they would disobey a lawful order. Their criteria vary little, as these excerpts illustrate:
•"If the officer cannot live with obeying the order, then he must disobey and accept the consequences."
•"When I cannot look at myself in the mirror afterwards."
•"When I deem the order to be immoral."
•"When it is going to lead to mission failure."
•"When it will get someone injured or killed needlessly."
•"When it will cause military or institutional disaster."5
These comments reflect the view that the military professional has moral obligations more fundamental than obedience and loyalty to their leaders, civilian or military. Myers and Kohn imply that the term moral is too subjective to be defendable. However, I argue that the military profession is founded on clearly defined moral principles.
For the purposes of this article, I use the term military professional to apply to military officers. I make this distinction based on the nature of the officer's professional military education, which focuses on developing an abstract body of knowledge; his code of ethics, which reflect the "special trust and confidence" conferred on him by the President and Congress in his commission; and his oath of office, which differs in an important aspect from the enlisted oath. These defining characteristics of the military profession impose on him obligations beyond obedience.
(cont'd)