How to Disobey, Part I, With an Attempt at Military Ethical Rules

In this post, I wanted to address some of the practical concerns of practicing disobedience in the military and elsewhere. (As Prof. Shanks Kaurin says, “military, citizenry, and community.”) Disobedience is a serious matter in the military. Much of entry-level military training is given over to instilling the habits of obedience, to simply “doing as you’re told.” After this, service members inhabit a highly hierarchical culture with frequent reminders of the need for obedience in the form of command, ritual and imagery. The justification for this is war and combat. Obedience, we are told, is justified by the need to maintain order in the chaos of the battlefield, to exercise reliable command and control. As Prof. Shanks Kaurin points out, it is a paradox that unquestioning obedience seems to be more prized and practiced in garrison than in combat, which is the setting invoked to justify the military emphasis on obedience to orders. This may be a paradox rather than a flat-out contradiction. Doubling down on discipline and obedience in garrison may help to create the conditions for cohesion and tactical control in battle. In his poem ‘The `eathen” Kipling has a sergeant observe that going into action his men seem to have forgotten nearly all that he taught them-

 Of all ‘is five years’ schoolin’ they don’t remember much

Excep’ the not retreatin’, the step an’ keepin’ touch.

It looks like teachin’ wasted when they duck an’ spread an ‘op —

But if ‘e ‘adn’t learned ’em they’d be all about the shop.        

An’ now it’s bloody murder, but all the while they ‘ear

‘Is voice, the same as barrick-drill, a-shepherdin’ the rear.

For the soldier, especially for the good soldier, obedience is easy, disobedience is hard. In fact obedience may be all-too-easy, because the conditions that call for disobedience often arrive unexpectedly and in circumstances in which little help is to be found. This is why I agree with Prof. Shanks Kaurin that soldiers ought to be prepared for the act of disobedience   

When to Disobey

Legitimate reasons for disobedience might be classified as legal, practical, and ethical. There is some overlap in these categories, and in some circumstance there might for example be both legal and ethical reasons to disobey. The firmest justification for disobedience is legal. If a soldier is ordered to commit an illegal act, or given an order by someone with no legal right to give her an order, she is clearly justified in disobeying. The matter of legality may not be simple, however, for example in the case of Rules of Engagement (ROE) which can sometimes be subject to different interpretations. The question of legality may have to be settled in a Court Martial, based on the Uniform Code of Military Justice, perhaps with reference to the U.S. Constitution.

Disobedience on practical grounds is riskier than the legal variety for the soldier disobeying, but it is also likely the most common of the three justification. Practical disobedience occurs when a soldier is under direct or standing orders or a regulation that seem to him impractical, or impossible, or when the soldier simply has a better idea.  Direct orders, standing orders, and regulations can sometimes be called into question, but there may be circumstances that do not permit this, or when what strikes the soldier as reasonable objections to an order are waved aside, and the order is repeated, perhaps with additional force!  The old Marine Officer’s Guide used to recommend enforcing bad or outdated regulations as a means of getting it changed. This approach carries risks, of course, not the least of making oneself very unpopular!    

Disobedience on ethical grounds is also difficult in practice. I once heard a discussion between a retired Chairman of the Joint Chiefs and a military lawyer of flag rank in which the lawyer asserted, to the former Chairman’s surprise, that there is no provision in military law for purely ethical disobedience. (Unless, presumably, it also has a legal justification.) The Ex-CJCS said there ought to be. Perhaps he was right. Other militaries have ethical codes, like the Israeli “Spirit of the IDF.” The American military has the UCMJ, the Code of Conduct, and the Constitutional Oath, but no ethical code per se, one that might, in some circumstances, be invoked to protect a soldier’s right to refuse an order.             

For the sake of discussion, I’ll append my own modest first draft of a U.S. armed forces ethical code below.   

  1. As a member of the United States Armed Forces, I will never dishonor my country or my uniform by turning my weapons on the unarmed: on civilians, on the wounded or disabled, on prisoners or those attempting to surrender. Nor will I engage in beatings or torture towards any person.
  2. If I learn of acts of violence towards the unarmed, I will report this to my chain of command, without fear or favor.
  3. If in command, I will pursue all reports of violence towards the unarmed until I am satisfied that the demands of justice and of the highest traditions of an honorable profession have been met.

There could be more. There might be a prohibition of abusive speech. The UCMJ might be invoked as a warning. We could even include a rule on how service members treat each other. In drafting the code, the widest input should be encouraged.  The three rules above are a start, and the code should be kept simple. Of course, words on paper will not suffice. It would have to be supported by training at education, and the code itself should be subject to feedback and review.

Next: How to Disobey, II


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