Obeying Orders “Under Protest”: A Proposed Role for Ethics Committees in the U. S. Military
Jan Wojcik, Associate Professor, Auburn University
DRAFT—please do not cite without permission
In this paper I tackle the problem of distinguishing between licit and illicit orders and propose a solution for the soldier who is caught between a rock and a hard place: She is required (under threat of punishment for insubordination) to obey licit orders, yet is required (again under threat of being punished, this time for war crimes) to disobey illicit orders. This situation places quite a burden on a soldier, who, if she has doubts about whether an order is licit or illicit may have no criteria by which to ascertain whether she ought obey or disobey. The proposal that I offer as a means of helping to resolve the difficulties involved is that in questionable cases the problem be submitted to an ethics committee which would provide guidance for the military personnel involved.
Before I discuss this solution however, I ought to make my basic assumptions clear. First, I am acutely aware that I have never served in the US Military and I assume that those who have served will have better ideas as how this plan could best be implemented; here I offer possibilities and broad outlines only. Second, I assume that the United States Military is sincerely committed to following Just War Theory (JWT) and that individuals who volunteer to serve their country in the military are given at least an introduction to the requirements of jus in bello.
Two relatively recent situations in Iraq will serve to illustrate my concern. First, there was the torture of enemy combatants at Abu Ghraib. Secondly, there was the situation involving soldiers who refused to follow orders on the grounds that the orders that required them to assume major (and avoidable) risks to life and limb were unconscionable. In my discussion of the role of ethics committees, I shall use these two cases as examples of how such committees might function.
My proposed solution to the difficulties involved in distinguishing between licit and illicit orders can be stated quite briefly: I propose that any soldier who thinks that a particular order may be illicit have access to an ethics committee set up in such a way as to provide a relatively speedy resolution to the soldier’s concerns. A soldier who wishes clarification of the moral status of a particular order would file a query, stating that she is following the order “under protest.” If the members of the committee determine that the order is licit, the soldier would be so informed. If it turns out that the order is determined to be illicit, the members of the ethics committee would instruct both the soldier and the superior who issued the command that the order is illicit and should be rescinded.
I can think immediately of a number of questions and possible problems that must be addressed before such a proposal could be considered to be at all workable, and that even if those concerns could be answered successfully, there would most likely be a number of situations for which the establishment of ethics committees would offer no effective solution. Before discussing these details, however, I will first discuss the significant theoretical and practical advantages that my proposed solution offers.
The most significant theoretical advantage of establishing ethics committees to resolve questions of the moral status of orders is that the military would be providing a procedure by means of which a soldier’s autonomy could be recognized without requiring that the soldier risk her future as a soldier by having no option other than to obey—or disobey—a questionable order. Exactly what constitutes an illicit order is not always clear. Quite often there is room for legitimate ethical disagreement over various proposed tactics, and because of this we need to provide an avenue for conscientious soldiers to question particular orders knowing that the question will be considered by superiors not involved in issuing the order.
Further, providing a method for the resolution of orders about which there is a reasonable question would help to foster in soldiers the development of moral character in such a way as to facilitate the development of and exercise of practical judgment.
In addition, there are a number of very practical advantages. Resolving questionable orders in this way would decrease the likelihood that atrocities would occur. It would provide a forum within the military that would make it less likely that a troubled soldier would feel that she had no option other than to “go public” with the (allegedly) illicit conduct. Finally, resolving questionable orders in this way would make it easier to ascertain exactly where “the buck stopped” if atrocities were to occur, making it far less likely that a superior could hide behind ambiguous or euphemistic orders. Finally, the establishment of a plan such as this would reinforce rather than weaken the presumption that orders ought to be obeyed because soldiers would be obeying those orders even as those soldiers’ concerns were being considered by the members of the ethics committee.
Details of the Committees:
I am sure that there are a number of different ways to go about forming such committees and determining how they would function. I present the following model as an example only.
Each committee should consist of at least three individuals. At least one of them ought to be trained in ethical theory (a chaplain, for example), at least one individual should be from JAG, and at least one officer should be above the rank of the officer issuing the contested order. The committees should be standing committees and should be established up and down the command line. If members of a committee initially queried about an order are unable to determine the permissibility (or impermissibility) of a particular order, that committee then could refer the question to the next highest committee.
A soldier who initiates a query about the legality of an order would do so in writing on forms provided each soldier. In addition to providing routine information such as name, date, name of the superior officer issuing the order, and so forth, the soldier would explain the grounds upon which she bases her question about the legality of the order. Prima facie, an order that violates any of the war conventions ought to be challenged. Treaties signed by the United States and ratified by the Senate become United States law (via Article 6, clause 2 of the United States Constitution). Soldiers take an oath to uphold the Constitution, and if an order appears to violate such a convention it ought to be challenged by the soldier qua soldier.
A second reason that a soldier might have for submitting a query might be that the soldier believes that the order “shocks the conscience of mankind.” These are orders that ought to be disobeyed by the soldier qua human being on the grounds that obeying the order violates the respect that the soldier owes herself or violates the respect that the soldier owes another human being. These two justifications are not mutually exclusive: international standards of jus in bello have emerged historically simply because certain acts do “shock the conscience of mankind.”
I do not envision an overly legalistic approach; there is no need for soldiers to memorize various conventions and codes. She would simply state that she believes that the order may violate “international law” if she suspects that the order violates one of the Geneva or Hague Conventions, or “the order involves rights violations that I do not think are morally permissible” if that is the case. A brief explanation of the grounds would be required.
I shall now discuss these two grounds in terms of my two examples: Abu Ghraib and the soldiers’ refusing to obey orders to deliver gasoline in vehicles that the soldiers alleged to be unsafe.
The situation at Abu Ghraib damaged, perhaps irreparably for the foreseeable future, the assumption that the United States is a country that follows JWT and that offers itself as a shining example of morality for the world to emulate. It certainly appears that one of three things happened there: either soldiers took it upon themselves to commit war crimes, or soldiers were given orders that were ambiguous and could be interpreted as requiring the commission of war crimes, or that the soldiers were directly and clearly ordered to commit war crimes. Further, if a soldier were to have questioned informally the morality of the tactics used at the prison, she might well have been told that the detainees were not covered by the Geneva Conventions because they were not POWs but were instead something else (e.g., “enemy combatants”). It certainly seems plausible that an individual soldier might be morally confused as to whether the tactics were morally and legally permissible—or forbidden. In filing a query with the ethics committee, the soldier could seek clarification. In the event that the tactics were judged to be morally permissible, there would be a paper trail on which an individual soldier could cite in her defense should she be charged with war crimes.
The second case—that of soldiers being ordered to undertake travel that they believed to be unconscionably dangerous in light of their opinion that the vehicles that they were expected to travel in were not appropriately armored given the known dangers along the routedoes not (to my knowledge) violate any international law or military code. Nevertheless, if the soldiers’ assessment of the situation was accurate, then the orders given could be interpreted as a “shock to the conscience of mankind.” In this case, it was widely reported in the news that the soldiers had repeatedly expressed concerns about traveling in equipment that was not properly armored along roads that were known to be highly dangerous. When the soldiers’ disobedience was made public, the military authorities apparently agreed that the soldiers’ concerns were at least to some extent legitimate, because the soldiers were not court-martialed, but instead were disciplined much more leniently. A query to an ethics committee submitted when the soldiers first voiced their concerns might well have yielded the same conclusion, with the result that the problem would have been resolved prior to the point at which the soldiers thought they had no choice other than to disobey orders.
It is not difficult for me to imagine a number of questions that might be raised against a plan such as the one I have outlined, and I believe it likely that even more questions would be raised by those who actually serve in the military. At this point I shall consider a few of the more obvious concerns and suggest possible ways of handling these potential problems.
1. Shouldn’t a soldier simply refuse to obey an order that is manifestly illegal?
Response: Of course she should. The purpose of the ethics committee would be to resolve concerns about orders that are of questionable legality. The traditional way of looking at this problem requires dividing orders into two categories—those that are legal and those that are manifestly illegal. I propose that there are orders that fall between these two categories.
Osiel proposes another way of handling such orders. He suggests that soldiers not be judged guilty of obeying illicit orders if a “reasonable person” might judge that the orders are licit. The advantage of my approach, I believe, is that it does not require a soldier to make a decision about whether questionable order is permissible or not; instead, it sends difficult questions to a committee established specifically to consider these questionable orders.
Let me use Abu Ghraib as an example of how a questionable situation might work out in the context of my proposal (do, please, note that I can imagine alternative scenarios, as well). Imagine that a guard is ordered (either explicitly or implicitly) to use tactics that are forbidden by international law. As a first step, she might question her superior, asking whether the proposed tactics are permitted under international law. Let me assume that the superior states that they would not be permitted against POWs, but that “enemy combatants” are not POWs and hence are not protected by the same prohibitions. At this point, the subordinate would have the option of filing a query with the ethics committee, stating that she will obey the orders “under protest” pending a determination of their legality. At this point, things could progress in a number of different ways. First, the members of the ethics committee, guided perhaps by the officer from JAG, might agree with the claim that the detainees are not protected by international law. In this case, the subordinate could either obey or decide that the hierarchy is wrong and disobey the orders. This solution leaves her better off than if she had not raised a query, especially if the time should come that the orders are investigated. Second, the members of the ethics committee could decide that they do not know whether the detainees are covered by international law and “pass the buck” up the line by sending it up the chain of ethics committees. Finally, the members of the committee could determine that the orders are illegal and so advise the officer who gave the order. If that officer did not rescind the order, then the subordinate clearly would have defensible grounds for refusing to obey the order. The bottom line is that we would be able to ascertain the origin of the offending order, and any guards who had acted in good faith throughout the process would have had more options than apparently they actually did have; further, they would have been better protected against having to take responsibility for the abuses (assuming, of course, that those abuses were ordered by superiors and not done on the initiative of the guards).
2. Another objection might be that many orders are based on consequentialist considerations, and an individual soldier is not in a position to assess the situation as a whole. In other words, orders may appear to be illicit at the local level, but are in fact are judged to be legal orders by those who are aware of the total picture.
Response: I am not suggesting that soldiers should feel free to question the wisdom of orders. A soldier should not raise a question about whether the proposed means will achieve the desired ends. Queries regarding the legality of orders should be limited to orders that might be judged to be illicit in any event, even if the anticipated consequences are realized. In their initial training, soldiers should be aware that the ethics committees exist to determine the moral and legal status, not the wisdom, of orders.
3. Aren’t there simpler ways of handling situations involving illicit orders—ways that wouldn’t put anyone “on the spot” (so to speak)?
Response: Certainly a number of ways of handling situations such as the ones I’ve described have evolved, and include such steps as asking for clarification of the order, “creative compliance,” etc. My proposal does not require that these methods be abandoned. Depending on the situation involved and the personalities involved, these time-honored methods may resolve the situation without requiring recourse to an ethics committee. The possibility of filing a query with the committee, however, would be a way of handling cases that the traditional methods do not resolve.
4. The members of an ethics committee would have no authority to countermand an order that is judged to be illicit, so there remains the possibility that illicit orders would remain in force.
Response: This could definitely happen—but I do not think that it would happen blindly or thoughtlessly. If a superior officer has been notified by an ethics committee that the order she has issued is illicit, she would be strongly motivated to resolve the situation in some acceptable way. She could, for example, discuss the situation with her superior officer, asking the officers in the chain of command of the disputed order to reassess the situation. She would, at the very least, be wise to explain, in writing, to the ethics committee exactly why she thinks the order is morally and legally permissible.
5. Submitting queries might be a good idea for non-combat situations, but the heat of combat there is no time to go through such a procedure.
Response: This point seems fairly obvious. I expect that orders given in the heat of combat would (and should) be followed immediately, and that any questions regarding the legality of those orders would have to be determined later. Nevertheless, a soldier who was ordered to do something the legality of which is not clear to her could always file a query later, expressing her concerns. This possibility might not serve to prevent all atrocities committed in the heat of battle, but it should help to prevent systematic abuses. In addition, any questions raised by embedded journalists could be routinely referred to the relevant ethics committee. Further, Osiel notes that soldiering involves a great deal of waiting and watching, with only intermittent fierce engagements with the enemy. Nevertheless, even if the committees functioned almost exclusively in situations that do not involve the heat of battle, they would serve a valuable purpose.
6. Might not some soldiers file frivolous complaints or complaints that originate more in personality conflicts than in questionable orders?
Response: Such situations are possible. I trust that they would not be frequent among well-trained volunteer soldiers. Further, I trust that members of the ethics committees would be alert to such possibilities and could solicit input from superior officers if there is a suspicion that a soldier is abusing the system. Queries could be returned to the soldier stamped “no legitimate complaint here.” Repeated abuse of the ethics committees should be dealt with in whatever way similar disciplinary matters are treated.
7. Isn’t it possible that a soldier who files a query might be penalized in some way by her commanding officer?
Response: I suppose that this, too, is possible. Those in authority have always been able to find ways to make the lives of subordinates miserable; such a situation is not confined to the military—and in the military would not be confined to situations involving queries submitted to ethics committees. I trust that military professionals know how to resolve any situations that require intervention. I do expect that in the guidelines for such committees, retribution on the part of a superior officer would be explicitly forbidden.
In closing, let me repeat that I do not consider this proposal to be a panacea. The establishment of ethics committees would not suddenly eliminate any and all atrocities committed by members of the United States Military. Nevertheless, even if their efficacy were limited, it would be of significant benefit. Soldiers would no longer be between a rock and a hard place when it comes to obeying orders that are possibly illicit. There would be a way for such soldiers to seek clarification without the direct confrontation involved in refusing to follow orders. There would be a clearly outlined way to resolve such questions within the military, thereby decreasing the possibility that soldiers might feel forced to appeal to public opinion via emails to families or photographs from a prison. Further, the commitment of the United States Military to jus in bello would be positively affirmed by the establishment of such committees. Finally, and perhaps most important, individual soldiers would be provided a forum in which they could exercise their moral autonomy in situations where an order is suspected (but not known positively) to be immoral.
 Soldiers would remain obligated to disobey orders that are “manifestly illegal” without submitting a query to the ethics committee; see note 3 below.
 See, for example, “Minor Sanctions for U. S. Troops who Balked in Iraq,” December 6, 2004 (http://www.reuters.com/newsArticle.jhtml?type=topNews&storyID=7003184; last accessed January 2, 2005).
 If a soldier deems an order so “manifestly illegal” that following it would constitute a war crime, then the soldier ought refuse to obey the order.. In such a situation, the soldier could, if she desires, submit a statement to the ethics committee stating that she is refusing to obey the order and citing her grounds for that refusal. The ethics committee’s principal responsibility would cover those situations about which there is reasonable doubt as to whether the order is licit.
 I do not envision an individual soldier’s being able to appeal a response; if she is not satisfied with the determination made by the committee, then she would have to decide whether to continue obeying the order or to refuse to do so.
 There are a number of clauses in the U.S. Constitution by means of which international law becomes binding on the United States, but Section VI, Clause 2 is the most explicit. For an excellent discussion of the legal issues and history, see Jordan J. Paust, International Law as Law of the United States, Carolina Academic Press: Durham, 1996. Judicial distinctions between “self-executing” and “non-self-executing” treaties are, in Paust’s view, “a judicially invented notion that is patently inconsistent with express language in the Constitution...” p. 51.
 Some explanation would be required because military law incorporates two very different theories of morality, sometimes leaning toward deontological ethics and at other times leaning toward consequentialist theories. Further, the moral intuitions of different soldiers also differ, with deontological intuitions primary in some cases and consequentialist intuitions primary in other cases. See Mark J. Osiel, Obeying Orders: Atrocity, Military Discipline, and the Law of War, Transaction Publishers: New Brunswick and London, 1999, pp. 101-108.
 The soldiers also cited the fact that the gasoline was contaminated and hence ought not to have been transported at all. See the source cited in note 2 above. I am not considering this to be of great significance on the grounds that the soldiers had complained previously and that the remedies made by the military involved the safety of travel per se, not the question of the purity of the goods being convoyed. A somewhat similar situation is discussed in Osiel, Obeying Orders, pp. 225-227 (a situation involving small mutinies in the French trenches during WWI when the soldiers did not consider the strategic aims to justify their risking almost certain death).
 See, for example, “Military will not Court-Martial 23 who Refused Mission,” http://www.washingtonpost.com/wp-dyn/articles/A41279-2004Dec6.html (last accessed January 3, 2005); see also the article cited in note 2 above.
 Osiel, Obeying Orders. His proposal is outlined particularly clearly in Figure 18.1, p. 291.
 There might be occasional exceptions to this exclusion of a consideration of the consequences in extreme cases.
 Osiel, Obeying Orders, p. 289.