Lately, there’s been talk about soldiers not being bound to follow illegal orders. The talk mostly is among some academicians, media personalities and political leaders. It’s usually associated with one side of the political aisle trying to score points against the other. I don’t want to use this essay to engage in that kind of partisan political discussion. Rather, I’d like to point out two of the enduring and foundational aspects of our profession that are relevant to the current discussion.
First, military commanders in the chain of command, with advice from staff judge advocates, are responsible for ensuring their orders are legal. Putting the primary focus on soldiers, or any other service members for that matter, misses this essential point. Those lower along the chain of command must be able to trust that those at higher levels have done their jobs. And “higher levels” is a relative term. To some, “higher” may mean a company, battalion or brigade commander. To others, a division, corps or joint task force commander. And to still others, “higher levels” may mean a geographic combatant or service component commander.
Inherent Responsibility
Commanders at each level have inherent responsibilities for those they command. Some of these responsibilities are tactical and operational—to place their units, and the men and women in them, in the best position relative to the enemy to increase the probability of success. Other responsibilities are logistical—to ensure the arms, ammunition, supplies and equipment needed for mission success either are on hand or within supporting distance to units in the fight. Still others are protective—to make certain both the battle and campaign areas, as well as lines of communication, are protected from enemy interference.
The current discussion swirls around another command responsibility—to guarantee, again, as much as is possible, that a commander’s orders and rules of engagement are legal. This is the context within which American service members operate.
And this context is an indicator of a second enduring and foundational aspect of the military profession: that war, or any use of military force, is not an amoral affair. How a war is fought or how forces are used is a physical manifestation of the values America stands for.
Why? Because using force necessarily involves taking, risking or changing a human being’s life—normally large numbers of human beings. Those who send America’s uniformed citizens to fight on behalf of the U.S. are ordering them to be ready to kill another and to risk being killed. Life itself is the coin of the realm in any variety of using force. How leaders spend those “coins” have moral and spiritual consequences on American citizen-soldiers.
The Right Thing
An American citizen-in-uniform who pulls a rifle trigger, drops a bomb from a plane, fires a warhead from a ship or launches a missile from some type of platform, manned or not, wants to reasonably be assured they are doing the right thing.
“The right thing,” from the perspective of the young private, grizzled sergeant or junior officer, is simple: What I’m doing is justified as a legitimate act of war, not murder. These young Americans, and the officers commanding them, must be able to trust not only their immediate commanders but also those more senior civilian and military leaders who employ them. That is, they have to trust that senior leaders have done their duty to ensure the legitimacy of the orders and rules of engagement they have issued. Absent such trust, the American military profession is at risk.
Americans in uniform are our sons and daughters. A large part of taking care of them, in return for their service, is making sure they are physically fit, part of a cohesive and reliable team, and properly trained, equipped and led. This aspect of leadership aims to increase the probability that those under the care of their sergeants and commanders will come home alive. It focuses on the physical well-being of citizen soldiers.
However, as important as this responsibility is, it is not the only responsibility of those in the chain of command. Another is making sure the killing done and the risks taken on behalf of the U.S. are justified. This responsibility attends to the moral and spiritual well-being of citizen soldiers. It increases the probability each of those under a chain-of-command leader’s charge can return from war in the best psychological, moral and spiritual shape and be proud of what they accomplished on behalf of the nation.
Leaders in the U.S. military chain of command are responsible for being as certain as they can that U.S. forces engage in only legitimate acts of war. While military necessity grants a wide berth, it is not absolute permission to do anything. The permission is limited and rightly so. It does not permit inflicting suffering for the sake of suffering, nor does it permit acts of revenge, torture or other acts of wanton death, destruction or pillage.
Necessary Limits
The Law of Armed Conflict and service manuals and the principles of “just war theory” (all taught in the U.S. professional military education system), spell out the limits of “necessity.” They also recognize the harsh reality of war: Leaders may lawfully order actions with the knowledge that noncombatants, the innocent, may be harmed or killed. Leaders, of course, are charged with mitigating such collateral damage. The innocent always have been caught up in the fighting of every war. It’s a sad, but unavoidable, reality of war. It’s why the same wartime acts can be, simultaneously, legitimate and justified on one hand and morally repugnant on the other.
Larry Dewey, who worked as a U.S. Department of Veterans Affairs psychiatrist treating combat veterans and their families for over 20 years, takes up this issue in his book War and Redemption: Treatment and Recovery in Combat-related Posttraumatic Stress Disorder. He has treated vets from World War II, Korea, Vietnam, Desert Storm, Bosnia, Kosovo, Afghanistan and Iraq. He sees a pattern. Whether an infantryman or artilleryman on the ground, a pilot in the air or service member sitting at a terminal guiding a far-distant drone, killing leaves a moral and spiritual wound, even when it occurs as a legitimate act of war. Killing the innocent—again, even if necessary and not intended or wanted—leaves an even deeper wound. Killing often leads veterans to ask, “What kind of human could do something like that? What kind of monster am I deep inside?” Dewey wrote in his book.
The effects are more pronounced when acts go beyond what is legitimately permitted. Wanton violence, unrestricted rules of engagement, “taking the gloves off,” as some put it, killing or wounding beyond what is militarily necessary—even if the acts do not qualify as war crimes—put our sons and daughters who wear the uniform at increased psychological, moral and spiritual risk. The job of leaders in the chain of command—civilian and military, whether close to the fighting or distant—is to reduce such risk. This aspect of the moral and legal dimensions of war is real, it is present in every kind of war or use of force, and it matters.
Second Guessing
It matters to the veterans trying to return from war and assimilate into normal life. It matters to families and communities. In his book, Dewey quotes a World War II soldier who said, “When I first returned home, I could hardly look at the women and children walking around. They reminded me of what I had seen and done in Europe. We had killed so many and destroyed so much while fighting the Germans. How could we explain it to ordinary folks at home?”
The quoted veteran, like those from many other wars, returned home to networks that literally created him: parents, siblings, teachers, pastors, coaches, extended family and friends. War had changed the veteran; he was not the same person who went off to fight on America’s behalf.
Upon returning, every service member faces communities whose image of them is “pre-war.” Sometimes the gap is too great, and assimilation, at least initially, is not possible. This is an illustration of the communal dimension of moral and spiritual injury—an injury that can result from executing even legitimate acts of war. The communal aspect of war’s moral dimension goes even further. For how a war is fought is a physical manifestation of the values of the political community that sent its fellow citizens to fight. As a political community, the American people will not sanction rape as a tool of war, will not allow torture on our behalf and will not permit deliberate and direct attacks targeting schools, hospitals or apartment buildings.
In 1968 in the Vietnam village of My Lai, the gang rape of women and the deliberate killing of innocent men, women and children at the hands of U.S. soldiers caused a social uproar when the incident became known. Adding to the uproar and making it worse, some in the chain of command covered up the massacre. In 2004, the torture and prisoner abuse at Baghdad’s Abu Ghraib prison came to light and caused another social uproar. As did the 2006 rape of a young girl in Mahmudiya, Iraq, then the murder of her family. These are just three incidents that illustrate that the American people, as a society, are tolerant but have a limit when it comes to crimes committed in their name.
The issue of whether American service members are bound to follow illegal orders really is an issue highlighting two enduring and foundational aspects of the American military profession. First, when acting in war, in any of its many forms, the American chain of command—civilian and military—is responsible to ensure the orders and rules of engagement it issues are legal. Second, use of force cannot be conducted in an amoral way because life itself is the coin of the realm, and because American values are at stake once its military forces are deployed or employed for action.
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Lt. Gen. James Dubik, U.S. Army retired, a former commander of Multi-National Security Transition Command-Iraq, is a senior fellow of the Association of the U.S. Army. He holds a doctorate from Johns Hopkins University, Baltimore, and is the author of Just War Reconsidered: Strategy, Ethics, and Theory.