[Richard]

Breaking Ranks: Dissent and the Military Professional
Part 3 of 4

The traditionalist argument holds that military leaders are concerned only with jus ad bello; it regards jus ad bellum as outside their purview since the decision to go to war is one of policy. However, for reasons already advanced by this article, senior military leaders are obligated to make judgments that fall within the realm of jus ad bellum, especially if Congress appears to have neglected its responsibilities in this regard. Of course, this obligation applies only to military officers of the highest rank; subordinate leaders do not have the choice of resigning in preference to going to war. This means, for instance, that a military leader might be justified in insisting that Congress vote to declare war in order to ensure that the decision stems from legitimate authority. He might also be in possession of information not available to the public, indicating that the stated rationale for going to war is invalid, in which case he has an obligation to speak out.

Once war is declared, the power of the purse obligates Congress to oversee its conduct by ensuring that ways and means are matched to the stated ends. With the early years of U.S. involvement in both Afghanistan and Iraq fresh in mind, it is hard to challenge the accusation that congressional oversight has not been zealous. Indeed, the wording of the 2002 authorization for the use of force in Iraq is so open-ended as to abdicate up front all congressional responsibility for subsequent oversight.16

The Founding Fathers recognized the need for checks and balances to counteract the frailty of human nature. Yingling concludes his article by saying the only way to ensure that Congress exercises these checks and balances would be to bring back universal military service. Not so, I argue. If the country's military leaders employ moral and intellectual rigor in adhering to their oath of office and professional ethics, there will be no need for so drastic a measure. That is not to say that the resignation of one or more senior leaders would always be enough to awaken the legislature to their constitutional duties, but it might at least gain the attention of the American people.

When the Constitution was written, the army was intended to be only a militia, soon to be disbanded and resurrected only in time of impending crisis. It names the judiciary as a check on both the executive and the legislature. The Supreme Court, however, will only catch those cases that are pushed to its jurisdiction, which may be after much damage has been done, as the Guantanamo cases bear witness. The court is unlikely to be called upon to decide whether a decision to go to war was justified, or whether its subsequent prosecution is in accordance with clearly defined goals, and matched with the necessary resources. In the face of congressional somnolence, the military professional has a duty to speak out in such cases.

The traditionalists need not worry. Recognition of the fact that military commanders have an obligation to make judgments involving policy is not tantamount to permitting politicization of the profession. The military professional cannot pick and choose courses of action that correspond to his political views. He must exercise careful discretion, basing his decision on his oath of office and professional ethics as opposed to a political agenda. The military officer belongs to a profession that demands the highest standards of conduct and that confers great responsibility, to include decisions literally involving life or death. He is entrusted with the Nation's treasure. Surely he can be trusted to handle nuance.

My argument does not challenge civilian control of the military. Civilian leaders retain the authority to direct and fire military leaders who prove inept or disobedient. Nevertheless, the traditionalists appear to assume that allowing military professionals a degree of moral autonomy is a slippery slope culminating in loss of civilian control. To understand this argument, it is necessary to envision their concerns: a military pursuing its own agenda irrespective of civilian direction, and in doing so enacting a de facto coup whereby its leaders call the shots in matters ranging from acquisition programs to foreign policy. But given the highly professional nature of the U.S. military, is this fear realistic? A country's system of government usually evolves with experience. Chile and Argentina now have embedded in their constitutions tight controls on the military—a consequence of recent history in which military juntas seized power in both countries. But the history of the United States is quite different. Not since the Newburgh Conspiracy in 1783 has the military overstepped its bounds by trying to influence Congress, and even then the goal was financial reimbursement rather than political power.17

The traditionalists may fear that allowing military leaders moral autonomy will open the floodgates, enabling generals to threaten resignation simply because they do not agree with a particular policy. Human nature, as well as professionalism, provides a bulwark against such an eventuality. It is fair to assume that generals like being generals, and thus would select judiciously those causes for which they were prepared to sacrifice their careers. Greater likelihood and worse consequences attend the other end of the spectrum where senior leaders refuse to make a stand on policy issues—cloaking their reluctance behind a Huntingtonian view of civil-military relations.

The military professional plays a key role as a check and balance at the indistinct juncture between policy and military strategy. He should not try to exclude himself from this role, even on issues that appear to involve policy, any more than the statesman should exclude himself from overseeing the conduct of military operations. He has a moral obligation to dissent rooted in his oath of office and his code of professional ethics. The question remains, how should he do so in a morally defensible manner?

Dissent: What to Do?

If an officer decides that an order is rendered unconscionable by its probable consequences, it follows that he has a moral obligation to dispute the order and, if unsuccessful, to dissent in a manner that has the best chance of averting those consequences, or his dissent is rendered meaningless. Resignation is his ultimate option, but he may choose to take other steps prior to that (for instance, requesting an audience with the President or with the Senate Armed Service Committee). Following resignation, he may decide to "go public" by speaking to the media.

The circumstances surrounding these decisions are seldom clear-cut. The military professional has, as discussed, an obligation to his subordinates. He must consider how his public defiance could affect their morale. It may be that he would cause them to lose confidence at a critical time without changing the course of events. He must also consider what effect his resignation would have. Would it cause a stir sufficient to avert the feared consequences, or is it more likely that he would be replaced by someone who would carry out the order, perhaps in a manner likely to cause even greater harm?

This question raises a difficult issue. Should dissent be founded on the right action or the right effect? A third of the MCWAR officers surveyed argued that in the face of a moral dilemma, the military professional should focus on the effect desired: mitigation of the immoral order, rather than the conscience- salving but possibly ineffectual act of resignation. These officers advocated an indirect approach: addressing higher authority, leaking the story to trusted journalists or politicians, and dragging their feet in execution— "slow rolling" in military parlance. "What else can I do?" asked one officer rhetorically. "My only option is to conduct covert actions to reduce the risks of misfortune and of American casualties."18 This approach is certainly not without precedent. As one Army colonel commented in response to the survey, "The most (commonly) used form of disobeying an order I've seen is slow-rolling."19 This option does have some prima facie appeal, combining its own moral logic with a pragmatic focus on effects.

But a profession that values integrity and moral courage cannot at the same time justify a deceptive approach to dissent. By taking an open stand, the military professional displays the courage of his convictions but also implicitly accepts personal consequences, whether he is right or wrong. His stand may persuade the issuer of the order to reconsider or it may draw the attention of the legislature to the issue. On the other hand, it may be purely symbolic—and have no effect on the decision. Regardless, he has exercised his moral autonomy and taken the consequences. He may, after all, have been wrong in his predictions, and this point is key because the military professional, however well placed and intelligent, is always fallible. Allowing him moral autonomy to dissent benefits the process of policy execution overall; sanctioning the practice of "slow-rolling" orders deemed to be immoral ultimately sabotages this process. The truth of this statement becomes more apparent when, rather than looking to past examples of bad orders that were slow-rolled to good effect, one looks at a potential policy decision whose consequences could be highly controversial but are by no means predictable.

(cont'd)