The Army: A Profession of Arms

[Ken White]

in its concluding paragraphs contained the thought that failure of the Germans was due in large part to the fact that "...Generals became more concerned with protecting the institution than they did with their mission" or words to that effect. I read that book so many years ago I do not even recall the title but I recall that the author was German and had been there. Regardless, I readily recall the comment to this day. That is principally because in 45 years in and with the US Army and Marines, I saw evidence on a frequent basis over the last 20 or so years of that time that in both organizations the syndrome was and is alive and well .

I have always believed that if an institution was reasonably competent and did, as an organization, what was right then there would be no need for it to 'protected.' Nothing over the past couple of decades has caused me to change my mind on that score.

Long way of agreeing with ChipColbert. Morality is an individual construct so everyone's entitled to their own. Organizations cannot have morals though their leaders can insure they operate in accordance with group morals that mesh with those of the society in which that organization lives or operates. Sometimes the moral construct of an organization and the nation or that of some individuals and the organization may differ.

In the case of an Armed Force, the organizational moral construct should never differ greatly in substance from that of the nation to which the force belongs. Individuals in that force may be at variance on some aspects -- and if those differences are significant, then the individual should work for change or leave. At no point should the protection of the institution be an issue for the institution per se or for individuals in that institution. IMO that particularly applies to the more senior people whose concern should be insuring the organization hews to the national norms and improving the institution, not protecting it.

Yes, I realize self protection is a base trait of all bureaucracies.

I think that's my point...

[jmm99]

Briefly with reference to the articles by Milburn, Breaking Ranks - Dissent and the Military Professional, and Yingling, Breaking Ranks?.

He who disobeys an order takes a legal risk - and may find that the courts (military and civilian) are not very charitable, especially if they treat a military order in a manner akin to a court order. A second lesson learned from legal litigation is that appeal remedies within the system have to be exhausted.

Thus, where a court orders an injunction, the injunction will normally be obeyed until it is stayed or reversed by a higher court, as Richard Harding recently advised in the interim betwixt District and Circuit Courts in the DADT case:

Email from Richard C. Harding, The Judge Advocate General, U.S. Air Force:

Members of The Judge Advocate General’s Corps,

On 12 October 2010, a federal district judge of the Central District of California issued an injunction barring the enforcement or application of 10 USC 654, commonly known as the “Don’t Ask, Don’t Tell” statute. A copy is attached. At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms, as follows:

The District Court “permanently enjoins defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys and all persons acting in participation or concert with them or under their direction or command from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command.”

The District Court further “orders defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act or pursuant to 10 USC 654 or its implementing regulations, on or prior to the date of this Judgment.”

Further guidance on this and related issues will be provided as it is made available by DoD. Inform your commanders of this injunction and its terms. Direct any questions to the Administrative Law Division, AF/JAA

There is a good reason for the JAG's caution - Generally, the substance of a court order cannot be attacked in a subsequent contempt proceeding:

Jansen initially argues that the district court erred in issuing the preliminary injunction order, since Central States had an adequate remedy at law (apparently because Express Freight Lines possessed an unencumbered piece of real estate). This is a collateral attack on the underlying order for the contempt proceeding and may not be contested on appeal from a civil contempt citation.

"It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the controversy. The procedure to enforce a court's order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience."

United States v. Rylander, 460 U.S. 752, 756-57, 103 S.Ct. 1548, 1552 (1983) (quoting Maggio v. Zeitz, 335 U.S. 56, 69, 68 S.Ct. 401, 408 (1948)). Express Freight Lines could have challenged the preliminary injunction in the district court, since it had notice that the proceeding was about to occur; furthermore, the preliminary injunction could have been appealed pursuant to 28 U.S.C. Sec. 1292(a)(1).[1] Thus, we decline to consider Jansen's arguments regarding the validity of the underlying order.

[1] If the preliminary injunction had been a non-appealable order, then it could be challenged on appeal from a contempt citation. See Marrese v. American Academy of Orthopedic Surgeons, 726 F.2d 1150, 1157 (7th Cir.1984), but we will not review the underlying order when it could have been appealed initially.

Even if collateral attack is allowed, the grounds are usually limited to whether the order was "void" - as opposed to merely "erroneous".

-------------------------------
I also will follow ChipColbert's lead:

I won't comment on the speculation of the article that his personal doctrinal views possibly cultivated a dangeorous command climate that resulted in higher casualties and the killing of civilians. I wasn't there and I don't think you can comment on that unless you had the experience of being in the unit.

and refrain from comments about COL Tunnell.

But, I will briefly comment on the reason for the "speculation" - and that is the "Yama$hita Rule", based on Application of Yama$hita, 327 U.S. 1 (1946). There, Yama$hita's conviction and death sentence were affirmed, with two dissents. One was by another (like Holmes) former Cpt. of Inf., Frank Murphy, who was strongly against the large expansion of a remote commander's criminal liablity for atrocities committed under battlefield conditions:

The petitioner was accused of having 'unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes.' The bills of particular further alleged that specific acts of atrocity were committed by 'members of the armed forces of Japan under the command of the accused.' Nowhere was it alleged that the petitioner personally committed any of the atrocities, or that he ordered their commission, or that he had any knowledge of the commission thereof by members of his command.

The findings of the military commission bear out this absence of any direct personal charge against the petitioner. The commission merely found that atrocities and other high crimes 'have been committed by members of the Japanese armed forces under your command ... that they were not sporadic in nature but in many cases were methodically supervised by Japanese officers and noncommissioned officers ... that during the period in question you failed to provide effective control of your troops as was required by the circumstances.'
....
International law makes no attempt to define the duties of a commander of an army under constant and overwhelming assault; nor does it impose liability under such circumstances for failure to meet the ordinary responsibilities of command. The omission is understandable. Duties, as well as ability to control troops, vary according to the nature and intensity of the particular battle. To find an unlawful deviation from duty under battle conditions requires difficult and speculative calculations.

FM 27-10 (rev. 1944) did not support expanded criminal liabilty of the remote commander; nor did our own experience from the Philippine Insurrection, according to Justice (CPT) Murphy:

Paragraph 347 of the War Department publication, Basic Field Manual, Rules of Land Warfare, FM 27-10 (1940), states the principal offenses under the laws of war recognized by the United States. This includes all of the atrocities which the Japanese troops were alleged to have committed in this instance. Originally this paragraph concluded with the statement that 'The commanders ordering the commission of such acts, or under whose authority they are committed by their troops, may be punished by the belligerent into whose hands they may fall.' The meaning of the phrase 'under whose authority they are committed' was not clear. On November 15, 1944, however, this sentence was deleted and a new paragraph was added relating to the personal liability of those who violate the laws of war. Change 1, FM 27-10. The new paragraph 345.1 states that 'Individuals and organizations who violate the accepted laws and customs of war may be punished therefor. However, the fact that the acts complained of were done pursuant to order of a superior or government sanction may be taken into consideration in determining culpability, either by way of defense or in mitigation of punishment. The person giving such orders may also be punished.' From this the conclusion seems inescapable that the United States recognizes individual criminal responsibility for violations of the laws of war only as to those who commit the offenses or who order or direct their commission. Such was not the allegation here. ....

There are numerous instances, especially with reference to the Philippine Insurrection in 1900 and 1901, where commanding officers were found to have violated the laws of war by specifically ordering members of their command to commit atrocities and other war crimes. [cites omitted]. And in other cases officers have been held liable where they knew that a crime was to be committed, had the power to prevent it and failed to exercise that power. [cites omitted] In no recorded instance, however, has the mere inability to control troops under fire or attack by superior forces been made the basis of a charge of violating the laws of war.

Murphy's opinion was ignored; Yama$hita was executed; and, sometimes, "victors' justice" comes back to bite you.

Regards

Mike