[Richard]

Breaking Ranks: Dissent and the Military Professional
Part 2 of 4

Code of Ethics

How a profession views itself does much to shape its identity, and U.S. military officers take pride in belonging to a profession centered on high ethical standards. This belief, inculcated upon entry and constantly reinforced, appears within the profession to be self-evident. Indeed, each Service uses the term core values to describe ethical tenets that it regards as fundamental. The emphasis on values reflects an institutional understanding that it is a profession wherein the potential cost of bad decisionmaking is especially high.

The concept of integrity, defined as doing what is right both legally and morally, is enshrined in the professional ethics of the Army, Navy, and Marine Corps. The Army lists among its values Selfless Service, defined as "Putting the welfare of the nation, the Army, and your subordinates before your own." Although Loyalty is also one of the Army values, it is defined as an obligation to safeguard the welfare of subordinates. Obedience is not listed among any Service's core values or code of ethics—nor does it appear as an area of evaluation on fitness reports, although moral courage does.

The Oath of Office

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.

Check and Balance

In Supreme Command, Elliott Cohen's central theme is one of unequal dialogue—a term he uses to describe the method by which civilian leaders must supervise military operations to ensure that force is being used in consonance with policy objectives. I agree with this argument, but not with Cohen's parallel contention that the military officer has no business making decisions in the realm of policy.8 Significantly, Cohen's discussion focuses on four statesmen renowned for both their strategic acumen and their skill in handling their military commanders. His theory does not recognize the possibility that, at the blurred nexus between strategy and policy, the military professional plays a valuable and constitutionally defendable role as a check on the potentially disastrous decisions of men less capable than Abraham Lincoln or Winston Churchill.

The traditionalist "stay in your lane" argument presupposes a clear distinction between matters of policy and those of military strategy. Even Cohen, who criticizes Huntington for oversimplifying the line between the two, believes that a line has to be drawn somewhere in order to preserve the principle of civilian control. The truth is that the complexity of what military doctrine terms the Joint Operating Environment and the nature of roles and missions assigned to top military commanders make any clear distinction impossible.9

Clearly, the military professional's realm of decision extends beyond the strict parameters applied by Huntington and even Cohen. I further argue that just as the statesman's involvement in military operations provides a healthy check in the execution of policy, so does the military professional's exercise of moral autonomy. Sound decisionmaking depends on the statesman and soldier sharing alike a responsibility for the execution of both policy and strategy.

The traditionalists, of course, balk at the suggestion that the military professional has an important role to play as a check and balance: "In a democracy, the military is not the one assigned to ensure that civilian politicians are not shirking," commented Peter Feaver, a professor of political science at Duke University.10 Prima facie, this statement appears true. But when the results of bad decisionmaking are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution—the electoral voice of the people, Congress, or the Supreme Court—are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion.

Take, for instance, the decisions by the Coalition Provisional Authority in May 2003 to disband all Iraqi security institutions and to impose a policy of de-Ba'athification without any corresponding caveats permitting reconciliation. Assume, for the sake of argument, that these were bad policies that fueled the nascent insurgency with thousands of armed, trained, and disgruntled young men with drastic consequences for American forces and U.S. efforts in Iraq. Assume, too, that these consequences can be deemed predictable by the reasonable man. With these assumptions in mind, would not the military chain of command have been justified in refusing the order? The traditional argument would deny military leaders this recourse simply because the orders reflected policy decisions.

Or consider a recent case in which senior military officers complied with an executive decision that violated the Geneva Conventions. In Hamdan v. Rumsfeld, June 2006, the Supreme Court ruled that Guantanamo detainees were entitled to the protections provided under Common Article 3 of the Geneva Conventions. This meant that the U.S. Government had violated the Geneva Conventions for over 4 years. It is hard to see this ruling as being anything less than a serious blow to national prestige, undermining U.S. efforts in the all-important arena of strategic communication. But it was more than that—for those who believe that national values are important, it appeared to undermine the very cause that the Nation professed to represent. This point was not lost on the Supreme Court; as Justice Anthony Kennedy observed, "Violations of Common Article 3 are considered war crimes."11

The Bush administration's decisions vis-à-vis the Guantanamo detainees also infringed on the Constitution, which military professionals have sworn to support and defend. So decided the Supreme Court in the case of Boumediene v. Bush, in which the Justices ruled that the government did not have the constitutional authority to suspend habeas corpus indefinitely.12 The Constitution declares that "the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The executive branch had asserted broad authority to detain without trial without claiming either caveat.

My point in discussing the habeas corpus issue is not to debate the rights and wrongs of the case or to argue that the transgression should have been obvious to the military officers involved. Instead, I cite it to exemplify a situation in which an officer would have been justified in refusing an order even though it was a policy decision. In so doing, he would have been upholding his oath by opposing the unconstitutional exercise of executive authority.

There is another facet to this case that emphasizes the military professional's important role as a check and balance. The clause in the Constitution pertaining to the suspension of habeas corpus is under Article I, which deals with Congress, as opposed to Article II, which covers the powers of the President. And yet it was the executive branch that in this case assumed the role granted Congress. Perhaps the most disturbing aspect of this incident was that Congress raised no objection, thus shirking its constitutional role.

In a February 2010 article, Lieutenant Colonel Paul Yingling, USA, accused Congress of "all but abdicating many of its war powers."13 He is correct. In recent years, Congress has proven less than vigorous in carrying out its constitutional duties pertaining to the military, creating what is essentially a constitutional void. For instance, the function of declaring war is vested in Congress with good reason. It is an expression of public support for the most momentous decision a nation will make; it ensures that the rationale for going to war and the policy goals sought by this decision are clearly defined. And yet not since World War II has Congress exercised its constitutional duty of declaring war.

A congressionally approved declaration of war performs another important function by fulfilling the "public declaration" requirement of the universally accepted theory of just war. The United States and its allies are committed by treaty and policy to conduct military operations within the framework of just war theory.14 Just war criteria fall into two categories: jus ad bellum, the reasons for going to war, and jus ad bello, the manner in which war is conducted.15

(cont'd)