MILITARY ETHICISTS … WHAT ARE THEY GOOD FOR?
Address to International Society for Military Ethics, 24 January 2008
*Professor, Okaloosa-Walton College; Professor Emeritus, USAF Academy; email@example.com
I am very pleased to have a part in your symposium. You really do have a fine program ahead of you – once you get through the keynote.
I think the practice of opening with a joke is in retreat, but I’m going to do it anyway. Gen Wakin told this joke the first week of my first assignment to the Air Force Academy. I hear he’s still telling it and told it at JSCOPE not long ago. Here it is. Some children are quarreling about their parents’ occupations. The first says, “My mother is a doctor, and she makes us healthy for nothing.” The next says, “So what? My father is a carpenter, and he makes us fancy stuff for nothing.” And the last says, “Oh yeah. Well, my father is an ethics teacher, and he makes us good for nothing.” Now this may not be a great joke, but my students laugh at it. It must be the wordplay that makes them laugh. It couldn’t be because they think ethics teaching really is good for nothing. It couldn’t be that because teaching ethics is now as profitable a business as medicine or carpentry. You can make a decent living – and go to San Diego – by talking about living decently.
Ethics is very good business. There are required ethics courses, endowed chairs, and ethics centers. Ethicists are employed by businesses, hospitals, newspapers, sports organizations. Codes of ethics have proliferated. We can even get weekly advice from “The Ethicist” in the New York Times. Ethics is a juggernaut – a nice label I owe to Bill Rhodes. It is especially gratifying that military ethics isn’t just riding the ethics bandwagon but is in some respects driving it. The military’s core values movement is a good example. The military services took a management theory gimmick and made it … well, an honest gimmick that really promoted serious discussion. Supporters and participants of JSCOPE and ISME can be pleased to have played a leading role in the ethics juggernaut.
The ethics boom began about the time of the moral catastrophes of Vietnam and Watergate. It was a year after the Vietnam ceasefire (35 years ago yesterday) and a few weeks before Nixon resigned that Peter Singer published his New York Times article announcing that “philosophers are on the job again.” (Singer) Watergate, in which many lawyers had conspired, led to a huge growth in legal ethics. After Vietnam many military officers believed they lacked authoritative guidance to solve the moral dilemmas they had faced in that war. The military ethics boom – the introduction of ethics courses into military education and training at all levels and stages – addressed their concerns. It is hard to measure these things or to determine cause and effect, but it does appear the ethics boom has had an impact. Reviewing “leading cultural indicators” William Bennett used in his 1993 book, an article in last month’s Commentary reports that “in a number of key categories, the amount of ground gained or regained since [the deeply pessimistic] early 1990’s is truly stunning.” (Wehner and Levin)
But I don’t think it’s mainly good news for ethics. Ethics has been such good business that it is scary. You must have worried that the ethics boom is driven by an “irrational exuberance” so that in the cyclical nature of things the ethics bubble is doomed to burst. There is reason in fact to think an ethics recession is already underway. Despite the good news from Commentary, the news in professional ethics isn’t especially encouraging. In business ethics, there are Enron, accounting crimes, predatory lending. In government ethics, bribes, lobbying misconduct, other forms of corruption. In sports ethics, steroids and dog fights. And so one has to ask how much of a difference all those ethics courses, ethics centers, endowed chairs, and conferences really made.
But for military ethicists the ethics recession is especially depressing. For military ethicists the painful fact is that we will soon be in the sixth year of a war that many of our fellow citizens and fellow military ethicists judge to be a moral and legal calamity. In view of that, it is not a surprise that this conference will address such topics as selective disobedience in unjust wars, conscientious objection, the refusal by military members to fight in unjust wars, and dissent by way of a revolt of the generals. It is good that military ethicists are confronting these real problems posed by ongoing moral doubts about recent uses of military force.
But hadn’t you supposed the ethics boom would make such questions more or less academic? What were all those years of teaching and preaching the law of war and all those years of teaching and preaching just war theory for? Where did we go wrong? How did the moral disasters happen in the face of the ethics juggernaut and the boom in the military ethics?
One easy answer is: don’t flatter yourself. You’re suffering from delusions of grandeur if you think that anyone really expected that military ethics could save us. Everyone knew the ethics programs were cosmetic. You may have read a New York Times column by Stanley Fish this month on “Will the Humanities Save Us?” His answer: “Teachers of literature and philosophy are competent in a subject, not in a ministry. It is not the business of the humanities to save us …. What then do they do? They don’t do anything, if by ‘do’ is meant bring about effects in the world. And if they don’t bring about effects in the world they cannot be justified except in relation to the pleasure they give to those who enjoy them.” (Fish, Will the Humanities Save Us?) On this view, we did ethics for the pleasure of doing ethics, not for any real-world effects. This gets military ethicists off the hook. But getting off the hook this way hurts even more than accusations we failed. We did think military ethics would make a significant difference in the real world. You hoped the many things you said and did were more than intellectual or emotional exercises.
Another answer is that although it was expected military ethics would make a difference, it didn’t because we didn’t do enough. We were doing the right things in the right way, but didn’t have the resources to do everything we needed to. This is the answer of the Ethicist Full Employment Act: if things get better, that’s because we had ethics courses and so we should have more; if things get worse, that’s because we didn’t have enough ethics stuff and so we should have more.
Yet another possibility is that we were doing the right things but not always in the right way. That’s the one I want to consider – that military ethicists were doing the right thing, could have helped avert moral disasters, but didn’t because of defects in the way we did it.
Allotting blame for how the war began and how it has been fought is, like ethics, a big business. A case has been made against senior civilians in the Pentagon for skewing the facts and not planning well, against Congress for not bringing any of its checks and balances to bear, against journalists for not investigating the facts, against the American people for a kind of mass hysteria. For a long time the military escaped blame. But that is no longer the case. As the military is drawn into a whirlpool of blame, Dereliction of Duty Volume II will be in order. What will it say about military ethicists? (I am using “Dereliction of Duty Volume II” as shorthand for themes in H. R. McMaster’s Dereliction of Duty: Lyndon Johnson, Robert McNamara, the Joint Chiefs of Staff, and the Lies That Led to Vietnam).
That is the task I gave myself: on the assumption that recent uses of military force are characterized by serious moral failures that the boom in military ethics was intended to prevent, where did things go wrong? If we were doing research for the military ethicist’s chapter (or footnote) in Dereliction of Duty Volume II, where would we start? I think ISME’s declared purpose gives us a good starting point. ISME was “formed to discuss ethical issues relevant to the military.” That’s what military ethics does – discuss. And so I would use the structure of “discussion” to map out the research.
Discussion is someone saying something about something to someone. Thus discussion has four dimensions: the someone who discusses, the something discussed, the something said about it, and the someone addressed in the discussion. So in asking what military ethicists should have been good for, I would ask what might have gone wrong in each of these four dimensions. I should first warn you that because I now spend most of my time talking to undergraduates in lower-division courses, I am in the habit of relying heavily on exaggeration to make a point.
I’ll turn first to the “about something” military ethicists talk about. As a branch of applied ethics, military ethics applies its tasks, methods, and distinctions to practical and professional situations. The “about something” military ethicists discuss is typically a situation, a case raising ethical questions. This is an exemplary way of ethical reasoning.
The use of cases is productive even when the facts are thought experiments – even thought experiments about runaway trolleys. Of course you must supplement thought experiments with cases from history, contemporary events, or literature. Extended cases from history (the bombing of Dresden, for example) and literature (Billy Budd, for example) are very useful for challenging and refining our moral theories and intuitions. Such cases are especially useful for showing that the facts are usually complex, ambiguous, and messy.
As useful and necessary as cases are, however, their use has a weakness that could have figured in military ethicists’ derelictions. The risk with a thought experiment, a literary work, or a historical event is that we take it as a “given.” The “about something” we discuss in military ethics is usually just handed to us on a silver platter. We don’t have to do any work to get the facts. Our discussion begins with “given that there is a runaway trolley …” or “given that Saddam has WMDs ….” The luxury of having a case just handed to us, however, can make us forget that in the warrior’s world facts are not just given. The facts are in fact shrouded in the fog of war.
The research for Dereliction of Duty Volume II should investigate that habit of taking the facts as a slam-dunk. It does seem that much of what went wrong were failures at all levels in government and society to scrutinize the facts as given. A good amount of blame for current moral catastrophes has to do with collection and misuse of facts. There are serious questions about what the intelligence organizations, planners, and operators at all levels knew and should have known. The collection and misstatement of intelligence on WMDs is an obvious example, but there are even reports that before the war some very senior officials did not know the difference between Sunni and Shia. Journalists were complicit in the failure to scrutinize the facts as given. This left most of the nation mesmerized believing things we should have known were improbable. Future histories – histories already written, for that matter – will find truly astonishing the implausible things we unquestioningly believed as we were sleepwalking into a strategic and moral mistake. Sooner or later there may be a judgment as to whether those mistakes were purposeful, knowing, reckless, or merely negligent. However that turns out, we already know there is culpability in the fact-finding on which the use of military force was based. The moral philosopher’s habit of lazily taking facts as given may have distracted us from difficult questions about moral responsibilities in finding out what the facts are and so may have contributed to an environment in which journalists, legislators, and others took sketchy, implausible statements as an adequate account of the facts.
We need an ethics of fact-finding. I don’t mean that moral philosophers are morally required to do factual investigations on our own. Moral philosophers like almost everyone else will always be dependent on those who have the methods and resources to determine what the facts are. What I do mean is that philosophers can help determine what the moral responsibilities are for those who determine the facts and what the moral standards are for those who assess the credibility of their sources and probability of their conclusions.
Law has multiple rules about getting the facts. Rules of discovery say what information the parties must produce, rules of criminal procedure specify the methods police can and cannot use to get evidence, rules of evidence detail what evidence may and may not be considered by the fact-finder, and standards of proof set out how much evidence is needed and who has the burden of producing it. Analogously, philosophers working on theories of knowledge have thought carefully and rigorously about what counts as evidence and what counts as enough evidence.
Ethicists should take charge of articulating, teaching, and using moral standards for fact-finding analogous to the law’s rules of evidence and to epistemological theories. As difficult as it can be to make moral judgments about what we ought to have done given these circumstances and as difficult as it can be to make moral judgments about what we ought to do should certain give circumstances materialize, it is often more challenging to judge what the facts are here and now. This is especially so in war where, according to Clausewitz, “most intelligence is false, and the effect of fear is to multiply lies and inaccuracies.” (Clausewitz 117) We need to think more about the morality of finding out what is the case. We need moral standards for judging what the facts are here and now, whether we have facts of sufficient quantity and quality to make a judgment, whether we have met moral standards for fact-finding.
That brings me to the next dimension of discussion – the “saying something.” Once we have a case, what do military ethicists say about it? What we have to say about the case is our theories, our principles, our analyses of the logic of moral concepts. The powerful, inspiring, and true ideas about the moral life that ethicists have inherited and built on are among the most splendid of intellectual achievements. The tasks, methods, and distinctions of moral philosophy illuminate the joys and challenges of living the moral life.
But our research for Dereliction of Duty Volume II must nonetheless ask whether our use of these beautiful theories inadvertently contributed to moral disasters. In thinking about that, I keep thinking about Richard Posner’s 1997 Oliver Wendell Holmes Lectures. They are an unrelentingly ferocious attack on the uselessness of moral theory and moral philosophers. When the Harvard Law Review published Judge Posner’s lectures ( in Volume 111, Number 7, May 1998), they were accompanied by very convincing refutations from big-name defenders of moral theory – Ronald Dworkin, Charles Fried, Anthony Kronman, John Noonan, and Martha Nussbaum. As convincing as they were, however, Posner’s attack makes it impossible to ignore the possibility that the military ethicist’s theories are part of the problem.
One concern is undue reverence for tradition. According to Posner, “to those not overly impressed by the prestige of the classics, the idea that Plato, Aristotle, Kant, Hegel, or even Mill holds the key to solving any modern social problem is as implausible as thinking that the Bible does ….” (Posner 48) This could be a problem elsewhere, but most military ethicists use Plato, Aristotle, Mill, and even Kant merely as means to think about contemporary problems.
A more serious risk posed by moral theories, I think, is their simplicity. It is tempting to think that law, ethics, and war can be reduced to a few principles or even a single supreme moral principle. We want the world to be like that, and we take simplicity as a sign of truth. We want the world to be as simple as our lists of jus ad bellum and jus in bello criteria. One of my favorite lines from Clausewitz is about “friction”: “Everything in war is very simple, but the simplest thing is difficult. The difficulties accumulate and end by producing a kind of friction that is inconceivable unless one has experienced war.” (Clausewitz 119) This would fit our dream of a supreme moral principle. It’s only the accumulation of difficulties in applying the simple theory to a messy world that is ... well, messy. But it’s not that way. Morality itself is messy. We have multiple grand theories about the sources and foundations of morality and multiple variations of those theories because morality itself is complex. No theory has the truth, the whole truth, and nothing but the truth about morality, least of all the morality of war.
Misguided dreams of simplicity can turn military ethicists into ideologues. I don’t mean “ideologue” as someone who will knowingly prostitute theory to support any claim. I mean that becoming a partisan of a particular theory puts decent, hard-working ethicists at risk of over-generalizing. As we went sleepwalking into this war, a favorite buzz-word was “moral clarity.” That was code for a Manichean vision of “good versus evil” and for threats of “with us or against us.” But the layers of moral complexity pointed out by the multiplicity of moral theories show that moral ambiguity is more often the reality than moral clarity. Moral clarity – for example, a binary choice between torture and catastrophe – is often a false dichotomy. Many of those trying to figure out what went wrong in starting and waging this war think that it was ideologically driven rather than reality-based. It is not implausible to think moral philosophy inadvertently helped promote a kind of ideological temperament.
But even if ethicists make it plain, as we usually do, that we understand no moral theory has the whole truth and that we thrive on moral ambiguity, that still would not be enough to guarantee our use of moral theories is safe. Unless we are careful, it could make matters worse.
We think about moral cases by asking questions like: What would a utilitarian say about this? What would a deontologist say? And so on. This for-and-against approach uncovers factual and theoretical issues we might otherwise overlook. A nice example of this is a piece John Judis published two months after the start of military operations in Iraq. He called it “Kant and Mill in Baghdad.” Laying out quick but on-target summaries of deontology and utilitarianism, its sketches of possible moral justifications for the war are accessible to the non-philosopher. Judis doesn’t take a mechanical “if you are a Kantian, then this, but if you are a utilitarian, then that” approach. He is clear he doubts the war can be morally justified, but discusses a possibility that things could turn out to support a utilitarian justification. There is no slavish devotion to old texts of Kant and Mill. Instead he uses their ideas to confront the moral ambiguity in the situation. To do this in the classroom we have an extensive array of textbooks that pair a fine article making the case for something with another equally fine article making the case against it. This for-and-against approach quite effectively shows the reality of moral ambiguity.
But the risk posed by the “what would a utilitarian say versus what would a deontologist say” approach is that it creates the impression that moral reasoning is ultimately only a debate club where one answer is as defensible as another. Tell me which side of the question I’m on, tell me what you want the answer to be, and I’ll give you a utilitarian argument or two for it along with a deontological argument or two for it. My adversary can easily do the same thing for the other side. As Posner puts it, “For every argument on one side of a moral issue there is an equally good one on the other side. Even if it is not ‘really’ equally good …, the lack of any agreed means of measuring … moral arguments will make a pair of opposing arguments equal enough to create a standoff.” (Posner 41)
Someone listening in on ethicists’ discussions might reasonably conclude that the more we discuss, the more obvious it becomes that just about anyone can use moral theories to say just about anything about just about anything. When this happens, moral theory is not only useless but is actually harmful. As Posner puts it, “If anything, instruction in moral philosophy is likely to engender moral skepticism by exposing students to a variety of moral philosophies (some monstrous by contemporary standards) and to the methods of analysis by which to criticize, undermine, modify, and upend any given moral philosophy.” (Posner 73)
Soon after 9/11 I gave students a scenario involving an order to torture and asked them to analyze it with moral theories we had studied. I told them, as I always do, that these are things reasonable persons can disagree about and that what matters is how well they show they understand and can use the ideas we studied. I didn’t imagine then that in the United States we would have a real-world debate about torture. My assignments, I thought, were academic exercises, and I supposed the actual use of torture by the US was as improbable as a runaway trolley. Now I realize I may have given them the impression that one answer about torture and any other moral issue is as good as another as long as you can marshal an argument for it, as you almost always can.
And it is
not only our students we should worry about. We should also worry about
ourselves. The classical theorists (Aristotle, Kant, Mill, for example) think
that reflection on moral principles will make us better persons. But consider
what Stanley Fish says in that “Will the Humanities Save Us?” column. “Understand Kant’s categorical imperative and you
will not impose restrictions on others that you would resist if they were
imposed on you. It’s a pretty idea, but there is no evidence to support it and
a lot of evidence against it. If it were true, the most generous, patient,
good-hearted and honest people on earth would be the members of literature and
philosophy departments, who spend every waking hour with great books and great
thoughts, and as someone who’s been there (for 45 years) I can tell you it just
isn’t so.” (Fish, Will the Humanities Save Us?)
Fish is right. Eric Schwitzgebel, a philosophy professor, has done studies suggesting ethicists steal
more books than
other philosophers. His “research examined the rates at which ethics books are
missing from leading academic libraries, compared to other philosophy books.”
He “found that contemporary … ethics books were actually about 25% more likely
to be missing than non-ethics books. When the list was reduced to the
relatively obscure books most likely to be borrowed exclusively by professional
ethicists and advanced students of ethics, ethics books were almost 50% more
likely to be missing.”
Whether or not becoming skilled in the arguments of moral philosophy makes us worse persons, deploying theories for and against does take us another step away from reality. Our discussions are twice hypothetical, twice removed from reality. If these are the facts and if you are a utilitarian or a deontologist or whatever, then this is what you would say and maybe even do. Of course, I am not saying that this is a pointless thing to do. But I am saying that we should keep in mind how quickly it can detach us from reality. We risk heading off toward ideological over-generalization or stylized parliamentary debates, and both disconnect us from reality. On this account, military ethicists were not as helpful to those planning and waging war as we could have been because we distracted ourselves and annoyed them with rigid ideologies or interminable on the-one-hand/on-the-other-hand.
The challenge is to avoid both the appearance of Manichean moral clarity and the appearance of anything-goes. In an essay on what, if anything, moral philosophers do to earn their keep, Richard Rorty is quite doubtful that the “soundly based theories” philosophers construct can be of use to anyone. He concludes that “specialists in moral philosophy should not think of themselves as people who have better arguments or clearer thoughts than most, but simply as people who have spent a lot of time talking over some of the issues that trouble people faced with hard decisions about what to do.” (Rorty 202) It is the talking-over that matters more than the theories we use to talk things over. Constructing theories and making arguments for and against are not themselves the answers, but are instead the process needed to frame and think through questions.
If facts as given and moral theories tend to detach us from reality, it might help to bring real people into the picture – the real people we are talking to and the real people who are talking. A few moments ago I suggested that someone listening to military ethicists might suppose military ethics is a debate club in which deploying analytical and rhetorical skills to make points matters more than the points being made. But that assumes a fact not yet in evidence – that someone is listening. This brings us to the third dimension of discussion: the “someone” addressed in “someone saying something about something to someone.” How might military ethicists have been derelict with respect to the “someone” they talked to?
Philosophers are sometimes tempted to suppose that the logic of discourse is restricted to clarity concerning what we’re talking about and what we’re saying about it. We think the truth of what is said is independent of the person who says it and the person who hears it. Most of the informal fallacies we teach in logic result from focusing improperly on the speaker (for example, the argumentum ad hominem) or the person spoken to (for example, the argumentum ad populum). The truth – not to mention, the brilliance – of what you say is not dependent on the listener or reader. But even if the truth of a proposition is independent of its speaker and its hearers, its effects and value in the real world are not. The real-world consequences of the proposition depend greatly on who hears it and uses it. It would be mistake to ignore the person spoken to in assessing what military ethicists are good for.
Whom are military ethicists talking to? First, there are your students. You are teaching them to think clearly about doing the right thing. There is, however, the worry we picked up from Posner that the more skillful your students become in making arguments, the more they can justify anything they want to do. As Posner puts it, “The better read you are in philosophy or literature, and the more imaginative and analytically supple you are, the easier you will find it to reweave your tapestry of moral beliefs so that your principles allow you to do what your id tells you to do.” (Posner 74)
Then too there are the audiences who just want you to exhort them to be good. This has its place, especially in military ethics. The audiences you exhort nod up and down, but you are pretty sure your careful analyses don’t change their moral intuitions. They nod up and down because you delight them by telling them how awful things are morally, what good persons they are, and how if we morally superior people get together maybe, just maybe, we can make things better. In short, you are preaching to the converted. But this is good. Even Posner admits that preaching to the choir “serves the important function of convincing people who think like you that they are not alone in their beliefs; that they have the backing of someone who is confident, competent, articulate, and thoughtful ….” (Posner 90) Still, it is preaching to the converted.
You can also try speaking to the wider public with a view toward changing their minds with your careful analysis of an issue. But I can’t refer to the wider public without thinking of an essay by Jay Rosenberg that Carl Ficarrotta recently brought to my attention. Prof Rosenberg says: “Our agora is simply too vast. … One might as well converse with the walls and lecture to the winds … [your] lone voice … buried under an avalanche of sanctimony and hucksterism.” Rosenberg refers to a colleague who wrote for the op-ed pages of local newspapers. “Everyone who read [his pieces] found them inspiring and poignantly correct. But, of course, nothing ever happened because of them.”
But then who is really listening to military ethicists? My objective in naming your listeners was to identify your customers or, if you prefer, your clients, your users – the persons in the real world who would do better at waging war morally because of you. But after thinking about who is listening, it seems you may not really have any customers or clients – except each other. Military ethics may sometimes be as much an echo chamber as talk radio. Maybe I am too gloomy and too vulnerable to Posner’s assessment that moral philosophy “has no customers outside its own ranks.” With no customers, moralists have no external constraints and so have “no incentive to be useful to anybody.” (Posner 80) But it isn’t just Posner. Here is Bernard Williams’ recollection of a conversation with Michael Stocker: “We were in the bar of a melancholy modern hotel in a melancholy run-down city in upstate New York. After one glass of bourbon, we agreed that our work consisted largely of reminding moral philosophers of truths about human life which are very well known to virtually all adult human beings except moral philosophers. After further glasses of bourbon, we agreed that it was less than clear that this was the most useful way in which to spend one’s life, as a kind of flying mission to a small group isolated from humanity in the intellectual Himalaya.” (Williams 52) Put most grimly, this means: no one is listening to you except each other, you’re not really listening to each other, and if anyone ever did listen, it would be clear why no one is listening. This would help explain why the military ethics boom didn’t do more to prevent moral disasters.
Of course, that’s just the bourbon talking. I do know that discussing the challenges of moral reasoning and the joys of the moral life with your students, the general public, and each other has tremendous value. But in the Dereliction of Duty Volume II context, I doubt it is enough. The military ethicist should also have directly and authoritatively advised war planners and warfighters.
This brings me to the last dimension of discussion: military ethicists themselves, the “someone” who says something. What is, what should be, your identity as military ethicists? This is the dimension that could finally really connect military ethics to reality.
Some military ethicists may aspire to be the faceless, nameless voice of reason detached from the confusion and emotion of planning and fighting wars. You may see yourself as a dispassionate thinker loyal only to the truth, not a person of action committed to a cause. This is a valuable function, especially in your role as a teacher. As an example of this understanding of the ethicist’s self-identity, I like a line from an essay Ralph Potter wrote on the morality of the Vietnam War: “The ethical analyst as such does not provide policy recommendations, but has the responsibility to ponder what questions ought to be asked in the formulation of policy and to examine critically the cogency of reasons given in support of policy decisions. … I cannot [Potter says] be agnostic and tentative enough in stating my opinions on specific and sensitive points of policy.” (Potter 181, 212) In many circumstances this is exactly the right approach. I am myself so uninformed about so many specific and sensitive questions concerning current military operations that I do strive to be agnostic and tentative with respect to them. “Agnostic and tentative” is a good antidote to the Manichaean moral clarity that fed our moral disasters. On this view, military ethicists would realize that they have no place in the middle of things. They do not belong on the National Security Council or in the war room or command center or targeting branch. They would stay where they belong – in the classroom, in academic journals, maybe on the editorial page, and, of course, at conferences and symposia.
But I don’t think this is enough. The responsibility to ponder questions – what kind of responsibility is that really? Under some circumstances some ethical analysts should – as ethical analysts – also state conclusions on specific, sensitive policy issues and should have some kind of institutional authority to do so and to accept responsibility for what they say. Serving only as the anonymous voice of reason using moral theories to discuss given facts with other voices of reason leaves you, to use Posner’s vocabulary again, with no customers to please, and does not demand you make claims that can be falsified by the real world. Pondering questions and the cogency of answers gives you no substantial real-world responsibility. But seeking out and taking responsibility is central to self-identity. How you are answerable for what you think, say, and do makes you who you are.
Moral philosophers are quite good at telling others, including warriors, what burdensome and dreadful responsibilities they have as members of a profession. You don’t need citations for this, but let me give you a couple of my favorite examples.
In his “do-it-yourself-professional code for the military,” GEN Maxwell Taylor addressed the worry officers had about “the proper behavior of an officer … in a Vietnam-type war which appears unjust or unjustified to a large sector of the American public.” Taylor told officers not to worry about being involved in an unjust war. First, he says, there is no authoritative definition of unjust war. The definitions we do have “are of little practical value to [an] officer, merely stimulating new semantic debates ….” Second, without a means to say whether a war is just, officers have little choice but to assume it is. Honor requires officers to carry out legal orders. If we win, there will be no charges of injustice. If we lose, the victors are likely to charge officers with crimes and aggression regardless of the evidence. (Taylor)
On the other hand, Brig Gen Wakin, writing about the time he played a central role in creating JSCOPE, argued that the military professional must ask about the morality of the cause. The officer cannot be like the soldier in Henry V who thinks that if the king’s “cause be wrong, our obedience to the King wipes the crime of it out of us.” Military leaders must “accept a portion of the responsibility for the use of the military instrument.” Otherwise the officer could not make decisions on the legality or morality of orders. (Wakin 188)
Military ethicists can take GEN Taylor’s and Gen Wakin’s views as the starting point for an invigorating intellectual discussion about someone else’s responsibilities. Our discussion would brilliantly (or not) tell warriors what grave responsibilities they have. And in the process we would enjoy our stimulating insights. But we are not especially vigorous at seeking out and accepting responsibility for ourselves. Our accountability is more or less limited to answering for the weaknesses of our arguments. We are not especially eager to go on record advising real soldiers in real circumstances in the real world on how to apply Taylor, Wakin, and our ideas to determine the morality of what they are planning to do or have been ordered to do. Military ethicists should advise war planners and warfighters at all levels not only by writing papers, but also by taking a position in the trenches in the line of fire. Otherwise it does seem a bit like bayoneting the survivors. I’m referring to the old complaint about lawyers and auditors. They don’t take part in the fight. They watch from the sidelines. But when the fight is over, they go onto the battlefield to bayonet the survivors. Until we get in the line of fire with actual responsibility for what we say and do, that complaint applies to us too. At least some of the time at least some military ethicists should take part in the fight. They should be ready to be bayoneted for their judgments, for what they counsel warfighters to do. Military ethicists should put career and conscience at risk just as warriors do. The military ethicist’s chapter or footnote in Dereliction of Duty Volume II might well say military ethicists were derelict in averting moral disasters because they did not have and did not seek a formal, institutional role to give moral counsel in the real world in real time.
Instituting an official role for moral counsel in the war-making process sounds quite implausible and impractical, I know. But I get to this position by way of two analogies. First, some applied ethicists very successfully participate in another profession – medicine. Second, some advisors not traditionally involved in fighting wars – military lawyers or judge advocates (JAGs) – very successfully participate in military operations. Putting those two successes together, I conclude it is not completely implausible and impractical to envision a role of moral counsel in the use of military force. (I am not using a distinction between “moral” and “ethical” here. I use “moral counsel” for the military ethicist in warfighting because the Joint Ethics Regulation (JER) already uses “ethics counselor” for a person, often a lawyer, who assists in implementing the JER.)
Corporations, newspapers, bar associations, schools, and other institutions now have ethicists on their staff. But it is the role of the ethicist in medicine that perhaps serves as the best example of what ethicists can do in the real world. Ethicists have succeeded to such an extent in medicine that even those who most doubt the value of moral philosophy think bioethicists are useful. Earlier I referred to Richard Rorty’s deep doubt that moral theories can be of any practical use. To pin down this point, however, Rorty goes on to say that by contrast “moral philosophers have made themselves very useful in hospitals discussing issues created by recent advances in medical technology ….” (Rorty 202) Similarly, for all his angry condemnation of academic moralists, Posner too thinks that bioethicists have made themselves very useful. Here’s Posner: “The method of reflective equilibrium tries to weave our embedded principles and intuitions into a coherent structure. When used modestly in specialized fields of applied moral theory, such as bioethics, it can produce a commonsensical type of policy analysis ….” (Posner 50)
The role of the judge advocate in military operations is the other success that I think makes the idea of a moral counsel in warfighting at least somewhat plausible. A recent UCLA Law Review article by a Berkeley law professor and a Coast Guard JAG provides a good review of the expansion of the JAG’s role in warfighting. For most of our history, the article points out, “JAGs were not central to, and certainly not expected to be versed in, warfare operations. There was no expectation, or desire, for them to publicly comment on combat operations and policy decisions made by the civilian command authorities.” (Sulmasy and Yoo 1838) But by the 1990s, as the article recites, “JAGs were now teaching the laws of war to all members of the Armed Forces, performing mission and operational analysis, actively participating in war games, drafting (rather than merely advising on) rules of engagement, participating in the targeting process, and even reviewing battle plans and orders. As a direct result, JAGs are now found at every layer of the command structure.” (Sulmasy and Yoo 1841)
The 1991 Gulf War was a critical point in the expansion of the JAG’s role. This war showed commanders that the law of war does not have to impede warfighting and can even be a “force multiplier.” Also, JAGs figured prominently in our claim to have taken “the moral high ground.” As Col Bob Bridge put it in an Air Force Law Review article: “Desert Shield and Desert Storm brought home to the American people and the U.S. military, on a scale not previously witnessed, the stark contrast between Iraq's illegal threats and practices and the legal methods of warfare employed by the United States and its coalition partners. From President [George H. W.] Bush on down, the United States was committed to full compliance with the Geneva Conventions and the United Nations mandate in its prosecution of the war.” (Bridge)
The responsibilities JAGs had taken on in warfare prepared them to take a clear, forceful position on torture. According to news reports, active duty JAGs were unequivocal in their opposition to torture in discussions within the executive branch and in testimony to Congress. Retired JAGs even brought a lawsuit against Secretary Rumsfeld on the treatment of captives. JAGs’ experience in giving real-world advice to warriors conditioned them to take responsibility for their views. As a Army JAG wrote in a letter-to-the-editor in the New York Times: “I am compelled to make something clear: whatever the administration’s position may have been on torture, the position that we judge advocates on the ground have always taken is that torture, in any form, is illegal. We never saw, nor cared about, any memorandums by obscure attorneys from the Justice Department covering torture. Even if such instruction had come down to our level, I don’t know any judge advocate in the United States Army who would have advised commanders that they could use torture under any circumstances. The administration can say whatever it likes, but what’s right is right. End of story.”
By contrast, where were the military ethicists? If current or retired professors of philosophy at the service academies or other proponents of military ethics did anything similar, I missed it. If military ethicists didn’t invoke their authority as military ethicists to join lawsuits or seek to testify before Congress, it might have been because their role had never required them to take responsibility – other than pondering questions and the cogency of reasons. JAGs, on the other hand, are accustomed to reviewing and often drafting all kinds of things – military justice actions, contracts, administrative actions, and now war plans – with the responsibility to certify on the dotted line in a written opinion that they are or are not legally sufficient. JAGs are on record and accountable for the counsel they give.
So if the moral dimensions of medicine are now so complex and critical that bioethicists have an integral role in day-to-day health care and if the legal dimensions of war are now so complex and critical that warfighters consult lawyers on a day-to-day basis, it is not implausible to think warfighters need moral counsel too. Persons who know what they are talking about when they talk about the morality of war should directly advise the warrior.
If not from military ethicists, where can warfighters get real-time, real-world moral counsel? One answer is that individuals must be their own moralists in war. On this approach, everyone involved in military operations is capable of seeing and resolving moral issues and is responsible for doing so. But if developments in weaponry, international relations, military operations, and the kind of war we are now waging have made the warrior’s world so complex that the warrior requires legal advice on day-to-day issues, it hardly seems plausible to say that moral issues remain so simple and so free of difficulties and subtleties that any good person of ordinary sense and understanding always knows what to do.
JAGs, as we’ve seen, are already involved in the warfighting process. Perhaps they could take on moral counsel as an additional duty. Maybe that is the way it’s done today: the lawyer turns out to be the commander’s de facto moral advisor. But many lawyers are not willing to mix moral and legal advice because it would weaken their focus on legal details. But the principal reason against giving the JAG the additional duty of moral counsel is that it just is a staple of moral philosophy that law and morality are not the same thing. Law and morality do overlap far more in war than in most other areas. But the lawyer’s task is to say what the law is while the ethicist is also concerned with what the law ought to be.
For these reasons I think that moral counsel is needed in warfighting, military ethicists are the ones to give it, and military ethicists should therefore campaign to establish the position of moral counsel – an official, acknowledged role to provide real-world, real-time moral advice on the use of military force, advice for which they would be held accountable.
If you think this is insane or are otherwise uncomfortable with this proposal, don’t worry. It won’t happen any time soon. The practicalities of determining the scope of the authority and duties of the moral counsel and preparing persons for such a role are overwhelming. As formidable a hurdle as that is, however, there are two bigger obstacles: your profession may not want you there, and those in charge of the trenches don’t want you there.
If we can judge from recent experience with other disciplines, yours may not want you in the trenches. In October the New York Times reported that the Army had “enlisted” anthropologists and other social scientists assigning them to combat units in Afghanistan and Iraq. Field commanders reported that the anthropologists’ help on such things as the subtleties of tribal relations had reduced combat operations and allowed units to focus on improving conditions for the local population. But other anthropologists denounced the program as “mercenary anthropology.” Some said the program will create the appearance that all anthropologists are gathering intelligence for the US government. Similarly, psychologists working with the military on interrogations have been questioned by some in their discipline. Even in disciplines that usually promote engagement in addition to professional detachment, it is often supposed that engagement means opposition to the government and the military.
There is even more reason to worry about philosophers. As a group, philosophers have a dismal record of involvement in politics and public life. Socrates was put to death. Plato’s missions to Syracuse were failures. Heidegger’s sellout to Hitler and Sartre’s admiration for Stalin are only two sorry episodes in the history of how reckless the philosophical mind was in 20th century politics. (Lilla 3-46, 202-204) As Stanley Fish points out in a follow-up to that “Will the Humanities Save Us?” column, some of the policy makers now blamed for taking us into a war based more on ideology than reality are very widely read in philosophy and history. (Fish, The Uses of the Humanities, Part Two)
Yet even if your discipline did want you in the trenches, others don’t. I referred a moment ago to a law review article detailing how the JAG role in military operations has mushroomed. One author of that article is John Yoo, who is also the author of the August 2002 Department of Justice memorandum on torture. His purpose in describing the role JAGs now play in military operations is to undo it.
Professor Yoo and his coauthor think JAGs should get out of military operations because the “legalization of warfare … can prevent field commanders from achieving legitimate objectives of warfare.” (Sulmasy and Yoo 1836) Deferring to the opinions of JAGs will especially restrict combat operations in the war on terror where the old rules are … well, quaint, to use a former Attorney General’s term. The peculiar notion that the Geneva Conventions are quaint points to the underlying reason Professor Yoo wants JAGs out. Professor Yoo thinks the expanded role of uniformed JAGs undermines civilian control of the military. As he puts it, “it now seems clear that civilians and many military figures hold different preferences over the legal framework to govern the War on Terror.” The conflict over legal preferences may have resulted from the increasing legalization of warfare. (Sulmasy and Yoo 1835)
One wonders how much to make of the fact that Professor Yoo describes opposition to torture and concern about due process in military tribunals as a “preference” about legal frameworks. In any event, to advance their own “preferences” about the law, JAGs not only testified before Congress, but also met privately with members of Congress. In many instances “several … flag-rank officers at odds with their civilian principal attempted to engage Congress as a way to block executive branch policies.” (Sulmasy and Yoo 1832) And, as the letter from the “judge advocate on the ground” I read a moment ago shows, it wasn’t only general and flag officers in JAG who publicly opposed the opinions of their civilian superiors. Professor Yoo complains that JAGs also attempted to bring the judiciary in to advance their preferences about the law and undermine civilian control: “JAGs representing enemy combatants … challenged the legality of their clients’ detention in federal court.” (Sulmasy and Yoo 1833) Most legal ethicists would have said these JAGs were acting in accordance with their professional responsibility to zealously represent their clients within the bounds of the law. But on Professor Yoo’s account, their objective was to undercut civilian control of the military: “Military officers with different policy preferences sought to introduce the judiciary as another action to disrupt the unified decisionmaking of the [executive].” (Sulmasy and Yoo 1833)
Professor Yoo says that the civilian leadership could have demoted or otherwise disciplined JAGs who resisted civilian preferences on the law and, I think, comes close to saying they should have done so. Now there are efforts underway to augment the administrative framework for disciplining JAGs who hold different preferences. Last month the Boston Globe reported that “the Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.” Under a proposed rule, coordination with politically appointed Pentagon lawyers would be required before any JAG could be promoted. (Savage) This would have a chilling effect on a JAG tempted to say that an administration policy is illegal.
If Professor Yoo thinks that the legalization of warfare by JAGs prevents commanders from achieving their objectives and undermines civilian control, all the more would he reject the moralization of warfare that would result from introducing military ethicists into the process. This raises a question whether it’s advisable or even moral for military ethicists to put themselves in a position where they could be disciplined for speaking up against the “moral preferences” of political leaders.
And yet that is the point. Until military ethicists are, like the warriors they counsel, in the trenches and in the line of fire, they will have little responsibility and therefore little effect on warfare. JAGs have spoken out because their profession habituated them to give frank and honest advice in their role as legal counsel. Their rules of professional responsibility require them to do so and shield them when they do. JAGs haven’t been silenced yet. It could be the same for military ethicists giving frank and honest advice as moral counsel. If military ethicists want to speak with true authority when they make judgments about war and morality, then I think they must campaign for and get positions of true authority and responsibility in the actual process of using military force.
I started with the supposition that the boom in military ethics should have prevented or mitigated recent moral debacles. Because military ethics is discussion of ethical issues relevant to the military, I looked at the four dimensions of discussion to find possible reasons why military ethics hadn’t done more. I suggested that military ethicists’ practice of taking facts as given, of addressing those facts with theories that can veer either toward ideology or toward debating points, and of talking mostly to each other – that these derelictions greatly diminish the effect military ethics can have on when and how military force is actually used. I concluded that an institutional role making ethicists responsible for real-world, real-time advice in the use of military force would give military ethics real consequences. As valuable as your discussions of ethical issues relevant to the military have been and will continue to be, until some military ethicists discuss real issues in the trenches in the line of fire and other military ethicists support them there … well, until then it may be a bit awkward for your children when the doctors’ and carpenters’ kids ask them, “What are military ethicists good for?”
However awkward that playground encounter may be, I do know military ethicists are invaluable in many important ways, and I am confident you will have a successful nonderelict conference.
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