It started with Lt. Col. Andrew Milburn, USMC over at NDU's JFQ.
There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order.Professor Richard Kohn from UNC-CH, is not pleased.
But when and on what grounds should the officer dissent? And how should he do so? I offer three propositions:
1. The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral; that is, an order that is likely to harm the institution writ large—the Nation, military, and subordinates—in a manner not clearly outweighed by its likely benefits.
2. This obligation is not confined to effects purely military against those related to policy: the complex nature of contemporary operations no longer permits a clear distinction between the two. Indeed, the military professional's obligation to disobey is an important check and balance in the execution of policy.
3. In deciding how to dissent, the military officer must understand that this dilemma demands either acceptance of responsibility or wholehearted disobedience.
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).That is close to an airtight argument.
Is there an American tradition of rare and specific "selective hearing?" Sure, but that is at the Tactical level. At the Operational and Strategic level though - there is very little wiggle room; as it should be.
In my career, I was involved in things I did/do not think were "moral" or in the best interests of my nation. My participation in the Haiti embargo in the 1990s is one; some of the targets I "serviced" in DESERT FOX is another that comes to mind. But; I did them - and I did them well, as I knew that history would decide and I did not know all the facts. A bad taste? Yes. Would I do it again? Yes. Why? It was/is my duty, and yes - I was just following orders.
I have always been more of a Picket and Longstreet guy than a Lee guy; but they were right in their ideas and their ability to follow orders. As it should be.
In the end - when in doubt, call the JAG if needed. Better - mention your concerns privately with your boss; then execute the order - and execute it with the full force at your disposal. Anything else smells more like South America - to me at least.