Richard Kohn of the University of North Carolina at Chapel Hill is one of the nation's premier military historians, especially learned on the subject of civilian control of the U.S. military. So when he throws the bullshit flag on an article in an official military publication about how officers should dissent, I pay attention.
By Richard Kohn
Best Defense guest columnist
The national security community ought to applaud Joint Forces Quarterly for publishing "Breaking Ranks: Dissent and the Military Professional." If the thinking in that mush of assertions and opinions evokes any sympathy among officers serving today, 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.
The best way to analyze whether "a military officer is not only justified but also obligated to disobey a legal order," and whether there is a "moral obligation to dissent," is first to see if the arguments have any validity, and second to explore their implications -- whether we're talking about "the strategic level of decisionmaking" where there are "greater consequences" or down the line, because it makes no sense -- if we are discussing professional or moral obligations -- to separate the leaders from the followers on "orders that present military professionals with moral dilemmas wherein the needs of the institution appear to weigh on both sides of the equation."
Lt. Col. Andrew R. Milburn's first argument is that officers "belong to a profession upon whose members are conferred great responsibilities, a code of ethics, and an oath of office" that together "grant individual officers a moral autonomy and obligate" them "to disobey an order" they deem "immoral" or one that "is likely [emphasis added] to harm … the Nation, military and subordinates -- in a manner not clearly outweighed by its likely benefits."
The military profession most everywhere today is the creature of the state and more or less subordinate to it; in the U.S., the military possesses no autonomy of any kind not derived from civilian political institutions, and certainly no moral autonomy. Individuals possess that, but as officers they have no authority, or are any of them prepared, to determine whether an order harms the country, a military institution, or subordinates in such a way as to justify countermanding a decision by the president or secretary of defense. How would an officer know all the considerations involved, and by what authority or tradition is it legitimate to violate the will of the people's elected or appointed officials? Against what standard would even the most senior officer judge? Whose morality, whose definition of what's good for the country, a service, or subordinates? Would every top officer weigh the lives of soldiers against every mission, on their own individual calculation of cost and benefit? If so, the military would be paralyzed by inaction or disagreement. Officers who together refused an order would be in revolt. Think of a Pentagon riven by the kind of pressures reproduced in the movie Crimson Tide. Think Vietnam in the 1960s: the Chiefs and the CINCs (today's COCOMs), and probably officers and enlisted down the line, joining the demonstrators (to the delight of the Left) in some "professional" version of "Hell no, we won't go!" Think George C. Marshall in 1942 refusing the presidential order to round up Japanese Americans on the West Coast because the order might be immoral or illegal (before the Supreme Court rules), or refusing to invade North Africa because American soldiers might be unnecessarily sacrificed at the wrong time and place to defeat Germany (Marshall opposed that invasion).
Milburn's second argument is that the "obligation [emphasis added] is not confined to effects purely military against those related to policy," because "the complex nature of contemporary operations no longer permits a clear distinction between the two" -- as if today differs from the past, as if operations in our War for Independence, Civil War, and World War II were not complex, and did not mix the political and the military, as indeed every war does at the strategic level. He asserts the "obligation to disobey [emphasis added]" as "an important check and balance in the execution of policy," thereby using a glib trick of language to introduce a constitutional term as though our system of government raises the military to some status equivalent to the three branches of government. Actually, the U.S. Constitution explicitly subordinates the military to each branch and specifically prohibits in every way possible the military from arrogating to itself the ability, much less the responsibility, to defy constituted authority. Milburn thinks that a military officer should "exercise his discretion" if the three branches are about to commit or allow a disaster and "the military professional alone is in a position to prevent calamity." What officer can make that judgment, on what basis, and how, without violating the oath to support and protect the Constitution? The Constitution, law, military professionalism, and tradition all make the military accountable to the civilian leadership, not the other way around. Implying otherwise is to recommend the destruction of the very constitution and military establishment Milburn claims he wishes to preserve.
Finally, Milburn claims that "how to dissent [emphasis added] … demands either acceptance of responsibility or wholehearted disobedience," in effect boxing in every officer between assuming the responsibility for every order that comes down from above or disobeying it, a nonsensical either/or that makes no practical sense and has no basis in American law or military tradition. The responsibility officers have is to execute the lawful orders of their superiors, not to weigh each one against their own system of morality or their own calculation about whether they are good for the country, the military, or their subordinates.
In offering his arguments, Milburn makes some elementary errors. He equates without explanation orders from a superior officer and those from a civilian (one assumes he's talking about the president or secretary of defense or a service secretary). Are those orders really the same legally, constitutionally, professionally, politically, and by tradition? In pointing out the absence of "obedience" from all the services' core values, fitness reports, and officers' oath, Milburn neglects the obvious: obedience is assumed. Indeed it has been a foundation for military service since ancient times, and without it, there is no discipline, making armed services merely dangerous mobs, as Americans have known since the beginning of the Republic. Milburn trots out that old, and discredited, distinction between loyalty and obedience to the Constitution and to the president that Douglas MacArthur used to try to justify his violation of the president's orders, directives, and policies. Every school child in the country knows that the people properly elected or appointed to office embody the Constitution, even if they sometimes (according to their critics or opponents or the Supreme Court) occasionally violate it. Our system of government operates only through the individuals that the document empowers to exercise political authority. How can an officer preserve, protect, and defend the Constitution by ignoring or defying its proper functioning?
No amount of hemming and hawing about complexity and uncertainty, or invocations of "moral autonomy," or disingenuous claims that his "argument does not challenge civilian control of the military," can excuse Milburn's misrepresentations. He is not reassuring when he cites Chile and Argentina in talking about civilian control, or when he uses such words as "public defiance." Thankfully he rejects those Marine war college officers who suggest "leaking the story, … dragging their feet in execution," and other "covert actions." But Milburn rejects them not as unprofessional violations of civilian control, which they are, but on the grounds of cowardice, avoidance of accountability, or lack of effectiveness, and in invoking once again his mantra of "moral autonomy," he essentially boils the issue down to not being a "standup guy." What Milburn proposes has nothing to do with dissent and everything to do with disobedience: the destruction of good order and discipline in the U.S. armed forces. Advising (and disagreeing with policy or decisions) in the executive branch or Congress in private or when asked for personal opinions in open testimony, is perfectly proper and indeed obligatory. But trying to overturn or block the decisions of the officials put into office by the American people is altogether different. If attempted by more than one officer, or as the product of discussion, disobedience becomes conspiracy and revolt, not exactly moral by any stretch of the imagination. Indeed, put into practice, what Milburn proposes would not only unravel the good order and discipline of the armed forces, but destroy all trust between the military and its bosses -- elected and appointed civilian leaders -- and its client: the American people.
Finally, there are the errors in the article. A work that muddles the most famous historical example (MacArthur never made any "threat to cross the Yalu River"), asserts wrongly that, "When the Constitution was written, the army was intended to be only a militia," and that the military has not since 1783 "overstepped its bounds by trying to influence Congress," and even misspells the name of the leading scholar of civil-military relations (Eliot Cohen, not "Elliott"), lacks credibility. Such sloppiness also reflects badly on the referees and editors of the Joint Forces Quarterly. This article calls to mind the famous response of a Yale law professor to a student in class: "Your answer reminds me of the thirteenth chime of the clock: not only is it wrong in and of itself, but it calls into question the other twelve."