- By Peter FeaverPeter D. Feaver is a professor of political science and public policy and Bass Fellow at Duke University, and director of the Triangle Institute for Security Studies and the Duke Program in American Grand Strategy. He is co-editor of Elephants in the Room.
The debate over whether it is proper for senior military officers to resign in protest continues to bubble along. I made my case for a highly restrictive norm, one that would leave almost no room for resignation in protest. I was rebutting those (see here and here) who were urging a norm that would greatly expand the practice. Now, partly in response to my own post, two other distinguished commentators have weighed in with what might be considered a middle ground option. I have great respect for both of these commentators and so I take their arguments seriously but, in the end, I think they muddy the waters. If anything, the case they make for a middle ground makes me even more convinced of the need for the bright line I propose in my original article.
But first, a point that bears even greater emphasis than I gave it initially: the military has a legal, ethical, and professional obligation to resist illegal orders. It is not merely acceptable for the military to resist illegal orders, it is obligatory that they do so. If the President of the United States ordered General Dempsey to do something illegal, then Dempsey should resist the order up to the point of resigning in public protest. Every expert I know who writes or comments on this topic would agree with that. All of the debate is about orders that are legal but otherwise problematic.
Now the obligation to resist illegal orders itself comes with some additional clear constraints. It is not up to the individual officer to adjudicate the legality of the order. While it is appropriate for the military to have a presumption in favor of the legality of orders that come from the president through the chain of command, there is a large military legal community that is professionally empowered to help military officers determine that such orders are, in fact, legal. Moreover, these military lawyers operate within the larger civilian legal framework that is itself hierarchical, and in which the military is clearly subordinate. So if the military determines that an order might be illegal but the competent superior civilian legal authorities have determined that it is legal then, for the purposes of applying this norm, the order is legal. The military should obey it. The point is made clear by considering one of the most infamous orders in American military history: the order to round up and intern Japanese-Americans during World War II. Whatever your views on the wisdom or ethicality of that order, from the point of view of American civil-military relations there can be no reasonable debate about whether the order was legal under the United States Constitution. The Supreme Court unambiguously made it so. You are free to regret that decision today, but it would have been a gross violation of democratic civil-military norms for Gen. George Marshall to say to President Franklin D. Roosevelt, "I know the Supreme Court disagrees with me, but I think that order is illegal and so I refuse to implement it." The military is simply not competent to make that judgment. There is a name for military officers determined to rescue their country from their own constitution: dictator.
Another point that bears re-emphasis is that the policymaking process should provide ample room for the military to present a contrarian view to civilian leaders — to dissent from proposed courses of action. In my hypothetical, it would have been entirely appropriate for Gen. Marshall to recommend against interning Japanese-Americans.
Likewise, senior military officers have some latitude to quietly retire, if they believe that a policy trajectory is legal but problematic. This option is also circumscribed by caveats that require case-by-case adjudication. "Retiring" with a letter to the editor denouncing the president as a warmonger just ahead of an anticipated order to deploy to the combat zone is different from quietly transitioning to civilian life because you doubt that women can be effectively integrated into Special Operations units and do not want to be obliged to try to make that work. The former violates the norm, the latter does not.
I also outlined other forms of recourse available to the military, including testimony to Congress and correcting the public record if their own views have been misstated. So those like me who hold what might be considered a fairly absolutist position against resignation in protest nevertheless give the military ample opportunity to "dissent," including dissent in public.
For that reason, I do not see why there is a need to expand the wiggle room for the military still further, as some of my colleagues try to do.
Consider this argument by Gen. James Dubik (Ret.), one of the most thoughtful people in the business (also, as an aside, one of the funniest people in the business — he has stories about his early job as a zookeeper that leave me literally falling out of my chair laughing). Dubik’s piece is mainly devoted to rebutting those who are urging Dempsey to resign now. Dubik argues, rightly, that the current policy challenges come nowhere close to meeting the standards for resignation in protest. Moreover, he rightly says that the military should not resign just because they disagree with the final policy or feel that their advice is being ignored. And he wisely limits resignation to a private matter. But then, I fear, he muddies the waters by admixing "illegality" and "immorality."
Waging war becomes unjust when the lives of citizens in military service are being wasted. Part of war’s hellishness lies in this: war necessarily uses lives, and sometimes honest mistakes of omission and commission results in live lost in battle. But when lives are wasted in avoidable ways like promulgating manifestly inept policies and strategies, or conducting campaigns that have no reasonable chance of success because they are neither properly resourced nor connected to strategic aims worthy of the name — lives are not used, they are wasted. Senior political and military leaders are co-responsible for the lives of the citizens-now-soldiers they use in waging war.
That sounds good in theory, but is almost impossible to apply in practice. More to the point, it is a loophole so wide that it risks allowing back in all of the bad forms of resignation in protest Dubik is seeking to rule out of bounds. Every military officer who resigns in protest is going to claim that he is doing so on these terms, not because they merely "disagree" with the policy or are "frustrated" that their advice is ignored. Every controversial decision I can think of can be recast in these terms: canceling the F-22 will needlessly cost us lives, invading North Africa in 1942 will needlessly cost us lives, conducting the 2003 Iraq invasion force without such-and-such civil affairs unit will needlessly cost us lives, conducting the 2007 Iraq surge will needlessly cost us lives, and so on. At the end of the day, in our system, the military is competent to advise on all of these questions, but the rightness of the decision hinges both on irreducible unknowables and trade-offs across different forms of risk. In a democracy, choices that have those qualities are the proper responsibility of the civilian leadership to make, for good or for ill.
Or consider this contribution from Don Snider, one of the leading thinkers of military professional norms and another man I deeply respect. Snider invokes the work of two other thought-leaders and friends, Martin Cook and James Burk. (If all of these cross-cutting encomia strikes you as excessively clubby, I accept the critique. All of us working on this issue have been arguing amongst ourselves for years and have developed the mutual respect that comes from civil debate.) Snider, Cook, and Burk seek to make sure the military develops the capacity of high professions to become truly expert, and not mere robotic implementers of civilian directives. To reach this level of expertise, they argue, the military needs a certain amount of autonomy. I agree and would further assert that the U.S. military, one of the most professionalized and expert militaries in the world, readily enjoys that level of autonomy. Now it is the case that in some settings and on certain issues, civilians might restrict that autonomy a bit more than in others — for instance, President Obama is doubtless scrutinizing and circumscribing military operations in Syria more than he is in Iraq more than he is in Afghanistan more than he is in the United Kingdom more than he is in Texas. That is entirely proper. The dividing line between what can rightly be "left up to the military" and what needs to be decided by the civilian shifts with circumstances and it is the civilian’s prerogative as to where to draw it. Moreover, the military might prefer even more autonomy across the board. But in even the most restrictive areas I know about, the degree of civilian imposition does not come close to eroding military professionalism. The forms of imposition might be unwise — I think some of President Obama’s restrictions have been unwise — but they are not of the sort that threatens military professionalism, which is the threshold Snider, Cook, and Burk are establishing for the military to publicly rebuke civilians.
Snider’s error, I believe, is to fail to distinguish clearly enough between dissent and resignation in protest. He says that a professional military has to be able to offer dissent, and I agree. The military can dissent in the form of presenting unwelcome advice during the policymaking process. And the military can dissent in the form of explaining to Congress how and why that advice differs from the course of action the President ultimately took. But the current debate concerns resignation in protest over decisions that are unambiguously legal yet arguably unwise. It is hard to see how the military can do that without undermining the democratic foundations that military professionalism is supposed to protect.
And, finally, nothing I or any of these other experts say should be construed as seeking to insulate our civilian leaders from critique. When the President is pursuing unwise policies, the President’s boss — all of us — should be vigorous in offering our dissent. We just should not seek to enlist the military in that public effort. They have more important things to be doing.