Friday, October 8, 2010

Morality and Dissent: Redux

LtCol Milburn sure has caused quite a stir with that article of his. The latest commentary is from Bernard Finel who believes that I (and Dr. Kohn) use the "Nuremberg Defense" by ignoring peremptory norms, the "I just followed my orders" defense. I don't think that was the argument I made.

I'll draw Bernard's attention to the final paragraph of my post where I write that "once legal orders are issued a professional military officer has the obligation to execute those orders regardless of his or her personal moral views." I'll highlight the term "legal orders" - which in present day (or at least late 1990s, early 2000s) military officer education includes peremptory norms as a basis for legal orders. So, no, I don't see that I'm using the Nuremberg Defense that allows military officials to say they were just following orders.

As for the examples he uses from the Milburn article, I think Bernard is correct. The military should have questioned the disbanding of the Iraqi security apparatus in 2003, but the order given was quite legal, if ill-advised. They had an obligation to enforce it - something Milburn seems to disagree with. The military likewise should have dissented from upholding many of the detainee policies under the Bush Administration as they were quite illegal. General Hayden's defense (trusting the legal interpretation of the Administration) was unfounded and there should have been legal repercussions to him and other uniformed personnel who broke the law.

Essentially, I agree with Bernard and I don't think my previous post was argued as portrayed. I didn't mention peremptory norms specifically because my education placed it under the penumbra of legal basis for orders. We both agree that Milburn's "negative consequences" test would create a new CMR norm that would give the U.S. military unprecedented, and unhealthy to say the least, power to buck the civilian leadership in its own interests. Where Bernard and I still might diverge, as far as I can tell from his post, is the role morality plays as a basis for officer dissent as I can't tell if he thinks that morality does have a role beyond non-statutory, peremptory norms. I still firmly believe that dissent can only be based on the legality of the order. Granted, there is always some interpretation of legality and organizations are prone to expand their legal maneuver-space, but the United States has plenty of precedence from which to draw upon to help adjudicate such matters. The controversial orders given in the wake of 9-11 seem, for the most part, to fall neatly into categories of legal and illegal. Too bad those who executed those illegal orders didn't dissent at the time, as was their obligation.


  1. Fair enough, but the line between a moral decision and a legal one is fuzzy here. In essence, you're saying morality can't play a part, unless the violations of ethical norms are so egregious as to make the order illegal. In some cases, that is obvious... in many other cases... say waterboarding, I think it is less so. And as a consequence, I do think that allowing for an open considerations of the moral sphere is useful.

  2. I'm curious to hear your thoughts on the differences between legitimate and illegitimate dissent based on morality. I cannot for the life of me see how that works while maintaining a functioning military. Both within the military (mil to mil) and without (civ to mil orders).

    I had written about four more paragraphs, but my computer managed to delete them - so I'll just leave it at that question.