The Army: A Profession of Arms

[Ken White]

...as to the tension in your comments: You make arguments that claim we should subordinate our moral judgements to legal requirements. Fine, but this is a moral claim, and one you think should apply to all people (so far as I can tell). But you also say that we have no right to impose such claims on anyone.

I do not make the claim that we should subordinate our moral judgments to legal requirements. Just the opposite, thus my purposely repeated "One always has choices."

Morals are an individual construct and each person has an absolute right to their own. Legality is a consensual construct that may or may nor accept a particular moral view.

The fact of life I apparently failed to clearly state is that legal requirements today will override individual moral concerns. The politicians set the norms generally IAW majority opinion; individual opinions are trumped. That's my point in this sub thread. One can do what they believe morally correct but if it runs afoul of the statutory factors those factors will prevail and a loss is inevitable.

In event of such loss, I did and do advocate taking responsibility for one's actions without whining...

[slapout9]

The fact of life I apparently failed to clearly state is that legal requirements today will override individual moral concerns. The politicians set the norms generally IAW majority opinion; individual opinions are trumped. That's my point in this sub thread. One can do what they believe morally correct but if it runs afoul of the statutory factors those factors will prevail and a loss is inevitable.

Very profound Ken, and that's part of the problem Politicians have no morals but they do have opinions. I was talking to a friend about this the other day relative to Economics and I asked him do you really,really believe God is a capitalist? just cut taxes on the rich and everything will be just fine bit of a digression but it also applies to war.

[Bob Underwood]

The fact of life I apparently failed to clearly state is that legal requirements today will override individual moral concerns. The politicians set the norms generally IAW majority opinion; individual opinions are trumped. That's my point in this sub thread. One can do what they believe morally correct but if it runs afoul of the statutory factors those factors will prevail and a loss is inevitable.

In event of such loss, I did and do advocate taking responsibility for one's actions without whining...

This is interesting to talk about. Do we have no choice as a profession to make this a bit better? Is this the way things ought to be simply because it happens to be true?

I think we could do a bit better with regards to protecting the individual in the face of the majority.

Regards,

Bob

[Ken White]

This is interesting to talk about. Do we have no choice as a profession to make this a bit better?

That would require a consensus within the trade or profession in the development of a position. I doubt that could be obtained due to the huge number of conflicting viewpoints. If consensus was obtained, my sensing is that it would gravitate toward the current procedures and policies -- and the overarching rule of laws imperfect though they may be.

Is this the way things ought to be simply because it happens to be true?

Difficult to answer IMO. The converse of that is to ask why it is true and the answer seems to be the development of legal codes to control societies more base instincts in the several centuries since Hammurabi. In any event, with respect to this:

I think we could do a bit better with regards to protecting the individual in the face of the majority.

Many laws really exist to protect the majority from some of our more crass individuals.

That is particularly true in the Armed Forces and in the US Armed Forces it goes to an extreme. There is no legal code in the world, to my knowledge, that provides the protection to the individual provided by the UCMJ.

I have long advocated a psychological assessment for entry to the Armed Forces and far higher standards for accession and retention (among a lot of other things advocated...). Lacking those -- even with them -- there are always going to be individuals who try to game the system as well as some who truly have a change of mind about what or where they might be engaged. They both deserve fair treatment and my observation over a good many years is that the process is generally fair and works far more often than not.

[Jason Thomas]

I think a part of this discussion goes back to LTC Milburn's article "Breaking Ranks". His central theme is; “There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order.” I believe part of this discussion has to address civil-military relations. How do we as professionals give our best advice, provide a wide range of reasonable options and still remain non-politicized?

If we embrace LTC Milburn's concept of moral justification for disobeying then I would suggest that we are setting ourselves up dysfunction and incoherence not only with our civilian bosses but in our own ranks as well.
What is troubling to me is the murky concept of morality that is laid out in the article. It appears to me that each officer’s moral code would allow him or her to openly disobey a legal authority at the first hint of disagreement. If a military officer can cite morality as a reason to disregard legal orders why can’t the officer also cite the authorities’ popularity or political affiliation? Bringing personal morality into the equation erodes the military concepts of discipline and support to civil authorities.

Richard Kohn hits the nail on the head by repudiating the argument; “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.” I think Mr. Kohn is exactly right.

Officers are responsible to execute the legal orders of civilian authorities. More dangerously, bestowing that kind of moral independence upon officers will simply serve to be corrosive to civil-military relations and erode the confidence and trust of the American people. Furthermore, the moral exceptionalism that is advanced in the article would only create a chasm between the military and society that it has sworn to serve.

I don't want to replow the field with an old article but I think it is relevant to the ongoing dialogue.

Just my two cents.

[Ken White]

Good post, Jason.

[ChipColbert]

I'm glad Jason brought up the Milburn piece. I think there are some interesting points in his article and it is definitely a useful piece to generate discussion on civil-military relations.

Where I disagree with Milburn is on his notion that military officers have some sort of "moral autonomy" because of our position. While I think we all have our own individual moral code that we adhere to, I don't think military officers as a whole have a higher or "better" moral autonomy by which we should judge our civilian masters. To me that smacks of military elitism and exacerbates civil-military tensions.

I also agree with one of the critiques made by Dr. Kohn (I believe) on Milburn's piece about the false dichotomy Milburn lays out of "either acceptance of responsibility or wholehearted disobedience." I personally don't like the use of the term disobedience. I think the piece is much more palatable if you replace disobedience with dissent. It is always an officer's right to dissent if an order is illegal, immoral, or unethical. That individual should give voice to their dissent and if they feel strongly enough, take actions commensurate with the strength of their convictions. However, the use of the term wholehearted disobedience, at least to me, implies some type of active subversion.

Lastly, I disagree with Milburn's piece when he states, "military leaders are committed to challenge their civilian masters if the policy appears to be unconstitutional, immoral, or otherwise detrimental to the institution." My problem is with that last clause "otherwise detrimental to the institution." To me that is far too broad and if every officer in the Army must evaluate every order on whether or not he or she thinks it will be detrimental to the institution (according to whose judgment or standards by the way), we would never accomplish a mission.

On this not, if you haven’t had the chance, I highly recommend the following article:

http://www.csmonitor.com/USA/Militar...tryker-brigade

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.

However, reading this article made me think of the "detrimental to the institution" line. Did this CDR view the COIN doctrine and ISAF guidance as "detrimental to the institution" and therefore blow it off in favor of his own personal doctrinal ideas? And is that OK? What does it mean for our profession when we have a BDE CDR in combat that apparently blew off higher's guidance to focus on what he deemed “right” or important: counter-guerilla and guerilla hunter killer teams. If you believe Milburn’s argument, I guess this is OK? I'm not so sure.

[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

[William F. Owen]

Richard Kohn hits the nail on the head by repudiating the argument; “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.” I think Mr. Kohn is exactly right.

I agree with Ken White. Good point, well made. - but I would further add, that I find it very disturbing that this debate even got going.

You cannot teach "ethics" and morality. You teach Law. You teach what is written. Policy is always ethical. That is what policy "is."

I think there is very great danger that TRADOC has managed to elevate something pretty simple, into a pseudo-science, which lacks a grounding in the simple and classical teachings that have proven effective historically.

[Chris Case]

I agree with Ken White. Good point, well made. - but I would further add, that I find it very disturbing that this debate even got going.

You cannot teach "ethics" and morality. You teach Law. You teach what is written. Policy is always ethical. That is what policy "is."

I think there is very great danger that TRADOC has managed to elevate something pretty simple, into a pseudo-science, which lacks a grounding in the simple and classical teachings that have proven effective historically.

Is this hyperbole? An inside joke? I want to check before someone takes my comments about it the wrong way.

[Bob's World]

I thought about this a lot as junior officer who had the pleasure to work for a few officers that were dreadfully weak. I came to the philosophy of staying focused on the mission and my men; and using as my guiding context that "while it is sometimes right to do the wrong thing, it is never wrong to do the right thing." Just be prepared to stand tall and take the consequences when one makes that conscious decision to deviate of the directed path.

To blindly follow stupid orders (not inartful ones, but ones that put the mission or your men at risk) is a brand of careerism encouraged by the senior rater profile system. But those who break rules just to be a maverick or for self-serving reasons never impressed me much, nor those who would attempt to dodge responsibility when caught.

[William F. Owen]

Is this hyperbole? An inside joke? I want to check before someone takes my comments about it the wrong way.

Not a joke. Why would anyone start wanting to debate "ethics" and "morality" in a profession that should be bounded by "Law." What is "ethical" is delineated by "Policy." Un-ethical actions undermine policy.