A Duty to Disobey?

The United States is in the midst of an uncertain era of complex global threats.  Some have described the nation’s defense policy as one of “forever war.”  During this uncertain time, when the nation calls, military service members are required to follow orders with significant legal and moral consequences.  

But several high profile examples illustrate the limits of the duty to obey orders.   In 2006, First Lieutenant Ehren Watada refused to deploy to Iraq because of legal and moral objections to the underlying conflict.  More recently, Captain Nathan Smith sued President Barack Obama in federal court, claiming the conflict against the Islamic State terrorist organization was not properly authorized by Congress.  And more crises of conscience could be coming for those serving in the military. Since early 2016, President-elect Donald Trump has made repeated  proposals to combat terrorism, including targeting civilians and committing torture.  If confronted with such orders, under what circumstances do service members have a duty to disobey?  I explore this and other questions in my latest work-in-progress.  

Disobedience in the face of armed conflict is nothing new.  The reasons vary—fear of death, taking a political stand against a government or leader, personal notoriety or fame, and moral and legal objections to the conflict.  The latter category is the focus here, which includes conscientious objectors, those unwilling,based on their conscience, to perform military service.  

Traditionally, conscientious objection was absolute and related to deeply held religious beliefs.  In fact, religious exemptions from mandatory service were so widely recognized at the formation of the Union, that a right to conscientious objection was nearly included in the Second Amendment.  This paradigm did not change significantly until Vietnam, when the Supreme Court held that conscientious objection status may be available to qualifying non-traditional beliefs, deeply held moral and philosophical convictions, and for those already in the service.  Also, during this time, at least two distinguishable types of objectors emerged – the full objector, unwilling to partake in any war; and the selective objector, who takes issue with a specific conflict.    

In international law, a right to full conscientious objection is widely recognized.  For example, the UN International Human Rights Committee found that the right of conscientious objection is a derivative right found in the International Covenant on Civil and Political Rights’ right to freedom of thought, conscience, and expression.  

In contrast, selective conscientious objection has not received the same level of recognition.  In 1978, the UN General Assembly passed a resolution urging states to grant asylum or safe passage to persons who refused to enforce apartheid policies and were fleeing South Africa.  In the early 1990s, the UN High Commissioner for Refugees stated that asylum should be granted to those fleeing objectionable conflicts, defined as conflicts condemned by the international community as “contrary to basic rules of human conduct.”

If there is a duty to disobey, it is found in the context of the jus in bello, the laws governing conduct during war.  The Nuremberg Tribunal provides perhaps the best example.  The so-called Nuremberg defense was the defense raised by Nazi leaders tried at the Nuremberg International Military Tribunal, arguing – unsuccessfully – that they could not be held liable for criminal acts ordered by superiors.  

A similar defense was raised in the Vietnam-era case, United States v. Calley.  In that case, First Lieutenant William Calley argued he could not be held responsible for the slaughter of hundreds of unarmed civilians (the My Lai Massacre) because his unit had been ordered to clear the village.  The Court of Military Review held:

The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.    U.S. v. Calley, 48 C.M.R. 19, 27 (1974)

This has been referred to as the “manifestly unlawful” test. Under the manifestly unlawful standard, the legal duty to disobey is strongest when the superior’s order is unlawful on its face.

Fast-forward to today. What if modern military leaders are ordered to adopt policies of torture or targeting civilians?  Statements like these – made during a political campaign – are similar to policies adopted by senior government officials in the early years of the Global War on Terror, permitting torture and advocating derogations from the laws of armed conflict.  Then, as now, the policies proposed or adopted were manifestly unlawful because they were in violation of a number of statutes, treaties, and customary international law.  The duty to disobey such orders is clear, just as it was over a decade ago for the senior Judge Advocates of each service, who—while not outright disobeying orders—chose to adhere to the laws of armed conflict.

Where there is a limited duty to disobey manifestly unlawful orders in the jus in bello context, there is no corresponding duty in the jus ad bellum – the laws governing the initiation of armed conflict.  Only senior leaders, those with the ability to control war policy, may be held responsible for the start of unlawful armed conflicts.  Again, the Nuremberg Tribunals are instructive.  In the High Command Trial, the court stated:

“Somewhere between the dictator and supreme commander of the military forces of the nation and the common soldier is the boundary between the criminal and the excusable participation in the waging of an aggressive war by an individual engaged in it.”  

Similarly, the U.S. Army Field Manual on the Law of Land Warfare recognizes that “members of the armed forces will normally be concerned, only with those offenses constituting ‘war crimes.’” When the Crime of Aggression (Article 8 bis) goes into effect at the International Criminal Court in 2017, it will only have jurisdiction over “person[s] in a position effectively to exercise control over or to direct the political or military action of a State.”  As such, only those military members in a position to control policy could be held responsible for the legality of the underlying conflict.  Domestically, it is noteworthy that a federal court has never found a U.S. armed conflict to be unlawful.  

Therefore, there is no legal duty to disobey orders to deploy in support of a questionably lawful conflict. But what about selective conscientious objectors?  Because they face an internal dilemma – deciding whether to obey their conscience or the law – it is appropriate to analyze this struggle through the lens of compliance theory.  In short, compliance theory seeks to answer why individuals obey the law and, among other things, whether an individual has a duty to obey the law.  Among four competing theories of compliance, only three are relevant for this discussion: identification/conformity, compliance, and obedience/internalization.

Selective conscientious objectors are those that are willing to face the consequences for following an internal value system that is in conflict with state policy.  There are three primary reasons for disobedience in this context.  First, some seek to deter a perceived wrongful action.  Lieutenant Watada is an example of someone who refused to obey orders to deploy because he sought a change to the war policy in Iraq, or at least increased attention to the issue.  Second, some seek to exercise their freedom of conscience or expression.  Captain Smith’s lawsuit against President Obama, while not an act of disobedience, is a strong expression of dissent vis-à-vis the legal basis for the conflict against ISIL.  Finally, others seek to avoid self-harm.  In this context, self-harm refers to the moral harm of taking actions that are incompatible with the soldier’s internal value set, and not fear of injury or death in combat.

The state, on the other hand, has a legitimate need to enforce compliance.  Disobedience is seen as a threat to good order and discipline.  The state response to noncompliance is the traditional rational choice model.  Soldiers either get in line or they can prepare for court-martial.  Punishing noncompliance is intended to deter other would-be selective objectors.

But the state’s concerns about objectors spreading like a disease among the ranks does not withstand closer scrutiny.  John Rawls famously stated, “Conscientious objection no more challenges the state’s authority than the celibacy of priests challenges the sanctity of marriage.”  The historical record demonstrates that conscientious objectors, of any type, have never been statistically significant (less than 1 percent of service members in prior conflicts) and, therefore, do not pose a risk to military readiness or mission accomplishment.  Moreover, there is simply no empirical evidence to support the claim that soldiers who disobey unlawful orders leads to an increase in soldiers disobeying lawful orders.  

Plus, there is common ground between the positions of the objector and the state.  In order to face increasingly complex threats, the military develops leaders with an emphasis on ethics and values.  For example, Army Doctrine Reference Publication 6-22 states that an essential foundation for Army leaders is character—a person’s moral and ethical qualities that help determine what is right and gives a leader motivation to do what is appropriate, regardless of the circumstances or consequences.  This begins to sound very similar to the values-based approach of selective conscientious objectors—reliance upon an internal value set that guides proper action, regardless of negative consequences to themselves.  So when Lieutenant Watada refused to deploy to Iraq based on deeply held beliefs that the conflict was unlawful, he was relying on the same sort of values that the armed forces seek to instill in young leaders.

There are also benefits to organizational dissent mechanisms.  Questions remain whether Edward Snowden, the NSA contractor who unlawfully disclosed thousands of classified files relating to government surveillance programs, would have acted out had he been protected by the Whistleblower Protection Act or other similar provisions.  Compare that to the institutionalized dissent mechanisms at the Department of State.  Using confidential communications known as dissent channels, State employees may criticize certain aspects of U.S. foreign policy.  The intent is to stimulate employee innovation, creativity, and, one may assume, internalization of organizational values.  

Similarly, there are benefits for allowing some mechanism for selective objectors.  Initially, it is consistent with the historical tradition of recognizing religious and moral objections to armed conflict.  But there is no reason this cannot be extended to selective conscientious objectors.  This approach also assists the soldier in avoiding moral harm, as discussed above.  Finally, and most importantly, if the state seeks greater compliance and, optimally, commitment from its service members, then it will ensure that the conflicts it engages in are consistent with the laws of armed conflict.  This will appeal to the national values, while providing a sense of pride, legitimacy, and moral safety to soldiers who have volunteered to serve and vowed to protect and defend the Constitution.  

Furthermore, selective objectors should also be granted the opportunity for alternative service.  Service in non-combat roles, or even in civil service jobs has been recommended by the International Human Rights Committee for conscientious objectors in the context of mandatory conscription/drafts (Yoon, et al v. Republic of Korea (UNHRC) (2006)).  This is also provided for in the Selective Service Act and DoDD 1300.06.  The state benefits from alternative service by deterring insincere conscientious objectors.  Continued service in some capacity prevents soldiers from entering immediately into private employment.  Alternative service is also an equitable resolution since it demonstrates to the soldiers remaining in the unit that the objector is following through on his/her service obligation.  The soldier benefits by contributing skilled labor to military or societal programs in need.

If for some reason alternative service is not feasible, the selective objector should be administratively separated/eliminated and given a General characterization of service, which means the loss of some benefits and a social stigma.  This avoids the resource drain of the court-martial process, which, as discussed, is not a proven deterrent to other would-be dissenters.  A General characterization of service is also equitable because it shows to others – who also believe they are making a moral decision by deploying to combat – that the objector will not be given a free pass for opting out of a potentially dangerous conflict.

Finally, selective objectors should be required to go through an exit interview process that should become part of the historical record and made required reading for senior military and civilian leaders.  There is value at the strategic level to understand how policy is impacting the moral well-being of the soldiers, and, by extension, society.  In a time when the citizenry is largely disengaged from the democratic process, the selective conscientious objector may possibly be the loudest voice that leadership will consider regarding the legality of conflict in the era of “forever war.”        

Soldiers like Lieutenant Watada and Captain Smith, who voice moral and legal objections to specific conflicts, may sincerely believe they will undermine their values and those of the nation if they participate in an unlawful war.  Assuming these concerns are sincere, they are worthy of the attention of the military and civilian leadership.  They raise significant concerns about the moral pulse of the nation and the strategic direction of our national security.  Nevertheless, selective conscientious objectors are not protected under the law.  There is no duty to disobey orders to deploy in support of a putatively unlawful conflict, unlike the duty to disobey manifestly unlawful orders in combat.

The views expressed in this post are those of the author and do not reflect those of the Department of the Army, Department of Defense, or any other governmental entity. 

About the Author(s)

Keith Petty

Major in the U.S. Army Judge Advocate General’s Corps