The Revolt of the Generals: A Case Study in Professional Ethics
Dr. Martin L. Cook
Department of Philosophy
US Air Force Academy
USAFA, CO 80840
The views expressed in this lecture are those of the author and do not necessarily reflect the official policy or position of the United States Air Force, the United States Department of Defense, or the United States Government
At the White House Correspondents’ Dinner in 2006, comedian Stephen Colbert joked to an audience including the President, the Chairman of the Joint Chiefs of Staff, the Air Force Chief of Staff, and many other Washington dignitaries that only those officers who hadn’t retired “supported Rumsfeld.” He further suggested that the only solution to the criticism of the Secretary of Defense by recently retired General Officers was to use stop-loss on them!
The fact that a joke like that could be told in front of that audience speaks volumes for the sorry state of the relations between senior military leaders and their civilian superiors. For those very recently retired general officers who chose to go public with their criticisms of Secretary of Defense Rumsfeld (and by implication of the entire Iraq policy), clearly the situation had reached a point where they felt (whether rightly or wrongly) that it was part of their obligation to the profession of arms and to the American public to dissent. Such intense criticism from military officers coming immediately from positions of great responsibility in implementing those very policies is something virtually never witnessed in American history. This paper will attempt to assess the ethical considerations that should bear on officers contemplating such action in any future civil-military crisis.
The question of the nature of military professionalism and the distinctive demands of military professional obligations has received considerable close analysis in recent years. By far the greatest contribution to this discussion has been from the Army, and centered on the Army Professionalism project at West Point which culminated in the publication of The Future of the Army Profession.[1] The impetus for that project and series of articles was a fear that Army officers were losing a sense of their profession and its obligations and risked becoming (in the words of Dr. Don Snider from West Point, the project director) “a merely obedient bureaucracy.”
In the face of that perceived risk, Snider (and the many other authors on the project as well) called for a renewed sense of the distinctive features of a profession, including commitment to a body of abstract knowledge it was the obligation of the profession to apply and improve. The knowledge, it argued, constitutes the unique expertise of the profession and commitment to it the touchstone of the intellectual independence of the profession.
An implication of that line of analysis was that it is part of the profession’s ethical obligation both to apply existing professional knowledge to the highest degree possible when confronted with operational challenges and also to adapt that knowledge to novel requirements and operational demands. Because all of the project’s analysis is linked to the particular theory of professions developed by Andrew Abbott, who views professions as engaged diachronically for a struggle for professional “jurisdiction,” this aspect of the analysis highlighted the need for every profession to “adapt or die” as it evolves in competition with other claimants to expertise relevant to its historical area of expertise.
On the other hand of this debate, there was a common perception in the Clinton administration that a good deal of the military disrespected the President personally and disapproved of his uses of military force, especially in the Balkans, which many considered not really appropriate missions for a military focused on “fighting and winning America’s wars” (what then-Army Chief of Staff Eric Shinseki referred to as “the Army’s non-negotiable contract with the American people).
It was in that environment that a number of writers penned cautions that the essential subordination of the military to civilian leadership was in question. The most comprehensive and strident of these analyses were those of Richard Kohn[2] and Thomas Ricks’ novel A Soldier’s Duty which imagined the military’s deliberate evasion of commands from it military superiors.
More recently, in the face of the mess Iraq has become, many voices have been raised arguing that professional military advice was not heeded (and in many cases, not really solicited) by the Bush Administration’s civilian leadership.[3] Increasingly the concern was virtually the opposite of that during the Clinton years. Instead of insubordination, the concern was that deference to the strongly held convictions about radically novel ways of war fighting on the part of Secretary of Defense Rumsfeld and others in the administration caused the military leadership to accept war plans and force structures strongly at variance with their best professional judgment.[4]
It was in this context that Mary Beth Ulrich and I wrote an article arguing that the process of Congressional oversight of military affairs was badly broken – both because the Congress had largely abdicated its responsibility in recent years and also because the culture of the officer corps has evolved an excessive sense of its obligations to the Executive branch of government to the neglect of the equal if not great responsibility to give forthright and honest military assessments to the Congress.[5] That, we argued, was a venue in which it was part of a senior officer’s professional obligation to give his or her unvarnished professional opinion to Congressional members and hearings.
For nearly a decade, H. R. McMaster’s book Dereliction of Duty has deeply informed the ethos and self-understanding of the officer corps. McMaster’s demonstration of the complicity of the Joint Chiefs in the formulation and continuance of misguided policies in Vietnam has served as a cautionary tale in all thoughtful officers’ minds. According to General Zinni, “[then Chairman of the Joint Chiefs of Staff] General Hugh Shelton had sent copies of McMaster’s book to every four-star commanding general in the U.S. military and brought them to Washington to discuss it. … The message to us, after we heard this, from Hugh Shelton is, that will never happen here. And the message to us from Secretary Cohen at that time, too, is that the door is always open, and your obligation to the Congress, which is an obligation to the American people to tell them what you think, still stands strong. And that’s the expectation that we have. They did not ever want to hear that we had a problem, something sticking in our craw, that we didn’t bring up to them, that we didn’t honestly express if we felt it had to be expressed.”[6]
As Richard Kohn summarized the “lesson learned” from McMaster’s analysis, “There was a deep bitterness over Vietnam and the way the [service] chiefs had been co-opted. … [Army officers] said, ‘We’re never going to put up with this again, we’re not going to be put in that position again by civilians.’”[7]
A new dimension to this debate emerged recently with the public criticism of administration policy and of Secretary of Defense Rumsfeld personally by a number of very recently retired general officers. In almost every case these officers had, only weeks or months before these criticisms, been in the inner circle of policy formation or execution of the administration.[8]
This level of public criticism and dissent from policy and leadership from such a large number of highly-placed military leaders immediately following their service is without historical precedent. Never in American history have so many senior military leaders, apparently devoid of partisan political motive, felt the need (or obligation?) to speak out publicly regarding policy and leadership in the midst of an ongoing military operation.
The novelty of this dramatic event in the midst of the extended debate about the obligations and nature of military professionalism cries out for normative analysis. Is such criticism, at least on some understandings of the circumstances and motives of the critics, exactly a manifestation the highest standards of military professionalism? Or is it, on the contrary, a kind of reprehensible and unprofessional insubordination to duly elected political leaders and their appointees?[9]
It is important to set aside a number of potentially distracting related questions before launching into a normative analysis of this issue. First, I believe there is no question whatsoever of the legal right de facto of such officers to say anything they wish.[10] I say de facto because, as I will discuss below, Richard Swain from West Point has recently mounted a spirited argument that retired officers, since they are still technically part of the military and receiving military pay, should be bound by exactly the same rules as serving officers. But there has never been any inclination to take that view of the matter from the legal community. As retired officers, they regain full First Amendment liberties that are necessarily somewhat curtailed while they remain in uniform. Second, retired general officers using their moral and political weight to attempt to influence political matters have, unfortunately, already become a routine event. Every Presidential candidate in recent years has organized a parade of retired general officers to offer endorsements and to appear on stage at political conventions. Surely, one might argue, if it’s acceptable for retired officers to use their status in this way for completely generalized partisan political endorsement, it must certainly be orders of magnitude more appropriate for them to offer criticisms of political leaders and policies narrowly focused on areas of their specific military expertise.[11]
Many have roundly criticized the generals on a number of counts. Professor Don Snider, in an unpublished talk at West Point, argued that such criticism undermines the confidence of young officers, who might think “Did he really feel this way when I was fighting for him in OIF, and if he did why did he not resign right then?”
Even more scathingly, Snider cited Huntington’s classic to the effect that military people should stay out of political matters entirely, and asserted that the revolt of the generals “…casts the Army profession, and its current strategic leadership (‘too timid to speak out like us’) in a very negative light.” On this assessment, the retired general officer critics are simply crossing a line demarcating political judgment from properly military expertise that ought, in Snider’s assessment, to be a sharp and clear one.
Lastly, before turning to a normative analysis of the problem, it is important to acknowledge and then try to set aside the specific political judgments regarding this particular war in Iraq. This author confesses that he thought the Iraq invasion ill-advised in the extreme in prospect. Needless to say, now that we’re four years into it, it is clear that almost all the assumptions on which it was based (both in terms of the justifying causes and the predictions of how it would play out) have been shown to be totally wrong, leaving to future historians only the task to proportioning out fractions between self-delusion, duplicity, and honest mistakes.
Others, of course, have and will judge these matters differently. But, while it is important to acknowledge that these judgments and the feelings around them are deeply divisive to our society, the purpose of this paper is not criticism or defense of specific judgments. Rather, the task at hand it to try, even in the midst of political passions, to extend the normative thinking about military professionalism that has been so helpfully advanced in recent years.
Toward a Normative Analysis
One way to try to approach a problem in principle is to frame it as a hypothetical situation. It is important, of course, that the hypothetical be plausible in real-world terms and further, since this discussion arises from very specific events, that it be at least one plausible interpretation of those events. On the other hand, the advantage of the hypothetical framing of the issue is that it allows us to state the issue in in-principle terms rather than to be bogged down with every detail of specific personalities and events.
Suppose you’re a General Officer who has given frequent and repeated advice to political leadership about the military feasibility of operational and strategic goals. And suppose that advice is firm that the goals sought cannot be attained by the military means the civilian leaders are willing to commit, or not attainable (in your judgment) by military means at all. Of course, one can deploy military forces, get people killed, equipment destroyed, etc. in pursuit of those goals. It’s just that, in your opinion, all that will be devoted to a futile end. In particular, your advice about the size and composition of the force required to have any hope of achieving the administration’s stated goals are completely disregarded in favor of a force you believe is doomed to fail.
However, once it became clear that the political leadership thought otherwise, you saluted smartly and did your best to carry out the administration’s bidding. Now, you find yourself a couple of years into that deployment and having a severe case of “I told you so.” You believe it’s even clearer now than when you gave that advice at the beginning, that your initial opinions were correct.
At outset, you told yourself, “I could be mistaken,” and “Maybe the political leadership knows something I don't know.” But by now it’s apparent you were right initially and the political leadership didn’t in fact know anything that would have changed your judgment (or, still worse, that it “knew” things that are clearly and demonstrably false at this point).
So in your judgment the continuance of current policy will never achieve political goals and will result in continually mounting casualties and degradation of your service’s equipment, readiness, etc. Furthermore, you’re well aware that there are lots of other major threats that, because you’re deployed on this one, you couldn’t possibly find the resources to deal with militarily if you had to.
In such a circumstance, what do you do? Are you exactly where McMaster put the JCS in Vietnam? What are your options? You can continue to go along, digging deeper into what you consider an impossible situation. You can’t overtly criticize policy in uniform except, perhaps, by using your Congressional testimony opportunities to state your unvarnished opinions. Needless to say, if the issue at stake is a mere garden-variety disagreement over policy, no deep moral dilemma is involved. But if the policy is, in your carefully examined opinion, over a matter of extreme importance and threatens significant and long term costs to the services, to the national interest, and to the health of the body politic, a genuine dilemma arises.
If you retire, might it not in fact be part of your continuing professional obligation and your responsibility to your friends and troops still serving to try to extricate them from this impossible situation? Might it not also be important for the future credibility of the military and its leadership to show independent professional judgment in such a situation rather than to appear to be going along, only to have the historians document 5-10 years after the fact that the military leadership was yet again complicit and dishonest about the military realities it faced?
These are obviously very difficult questions. Furthermore, one is rightly hesitant at making an argument for anything remotely resembling insubordination because the risk is large that it will be construed as permission for military leaders to routinely and publicly to dissent from the policies of elected political leaders. So if one to make a case for public dissent of any sort, it must be hedged round with qualifiers and cautions. Any such argument must pertain only to the most extreme situations where, in the conscientious judgment of senior leaders, what is at stake is the fundamental security of the United States and of the Constitutional processes themselves.
As was mentioned earlier, at one extreme of the debate is the position articulated by Richard Swain in a recent issue of Parameters (Spring, 2007). Swain argues strongly (and cites law on point) to argue that retired officers are in every sense still members of the Armed Forces. He points out that they are subject to recall to active duty, take pay as retirees, and still hold commissions. Therefore, he argues they are subject to exactly the same restrictions as active duty personnel. Swain writes, “… [I]t is at least a false proposition that upon retirement officers revert to full civilian status in so far as the obligations they undertook at their commissioning. Retirement is not resignation. It is a matter of fact, not interpretation, that retired officers remain members of the armed forces by law and regulation…. [U]nless like George Washington they lay down their commissions by resignation, it is reasonable to assume that they remain at least ethically obliged to observe the limitations imposed by commissioned service, accepted by the oath they made and commission they still hold.”[12]
While Swain has a strong legal case, it is obvious that actual practice tolerates much wider latitude in the conduct of retired officers than the standard he has articulated. Perhaps the world would be a better place if Swain’s standard were the norm, but in actual fact it isn’t, and isn’t likely to become so either. Further, properly used, the expertise of retired officers who are freer to speak on policy than they would have been in uniform seems to me on balance a valuable national resource for informing public debate about those policies. Deprived of it, we would have only the administration’s line and the comparatively non-expert opinion of non-military commentators. Furthermore, any attempt to make Swain’s standard the reality would almost certainly be used selectively by an administration eager to silence its retired-officer critics, while encouraging their retired officer supporters to continue to serve as their advocates.
At the other extreme is the view deriving from some readings – I think misreadings – of McMaster’s book. On that view, senior leaders who have strong dissenting perspectives from administration policy have an obligation to speak out or resign in public protest. Determined not ever again to be the moral equivalents to Lyndon Johnson’s “five silent men” (as the JCS were called), defenders of this view hark back to General Harold K. Johnson’s retrospective reflections on his own silence:
I remember the day I was ready to go over to the Oval Office and give my four stars to the President and tell him, “You have refused to tell the country they cannot fight a war without mobilization; you have required me to send men into battle with little hope of their ultimate victory; and you have forced us in the military to violate almost every one of the principles of war in Vietnam. Therefore, I resign and will hold a press conference after I walk out of your door.[13]
Of course neither Johnson nor any other senior leader did any such thing through the entire duration of the Vietnam debacle. But, for many, the lesson they at least think they learn from McMaster is that, should equivalent events occur on their watch, they should be prepared to do precisely that. Chair of the Joint Chief Sheldon’s comments, quoted from General Zinni above, certainly seem to imply a readiness on his part to take precisely that course of action, should the occasion have presented itself to him.
In an article in The Naval War College Review article by retired Navy chaplain George M. Clifford III, the author attempts to provide the kind of fine-grained ethical analysis this problem requires. Clifford distinguishes four categories of issues which might raise the dissent issue in increasing levels of severity. I here quote Clifford’s categories:
· An assigned responsibility the officer can perform with minimal moral discomfort
· An assigned responsibility the officer can perform only with substantial moral discomfort.
· An assigned responsibility the officer can perform only at the cost of significantly compromising his or her moral standards
· An assigned responsibility the officer must not perform[14]
The easy cases (at least theoretically) are the first and last categories. The first is easy because the officer’s objection is not morally significant; the last is easy because it rises to the category of “illegal orders” which we expect officers to be prepared to disobey.[15]
For our purposes, the difficult categories are the second and third. Obviously, there is no way to sharply demarcate between these categories, and individual officers will draw the line in their own lives and conduct differently. But, as Clifford writes, “No officer, of any grade, who has a strong sense of morality will likely serve for very long without being assigned a responsibility to which he or she morally objects. Yet unless the situation involves grave consequences for others or the nation, the nation rightly expects military officers to do their duty” – i.e., obey.[16] In other words, if the moral difficult remains in the “category two” level for a given officer, we expect them to subordinate even their own moral judgment to the necessities of obedience and good order.
But the dilemma posed by the third category cannot be so blithely dismissed. While there is no bright line indicating when an issue is moving over to this level of discomfort, as Clifford notes, it deals mostly with “the degree and amount of harm or other evil caused by complying with an assigned responsibility.”[17]
Minimally, an officer confronting a very high degree of harm which he or she clearly foresees to be the consequence of a policy from which strongly dissents has the obligation to make every effort to be heard. Of course an officer owes loyalty to civilian superiors, but there are other competing loyalties at work too: to military subordinates, to the health of the military services themselves, and to the long term health of the perception of the moral integrity of the military services by their fellow citizens (who of us who lived through the Vietnam era can forget the public’s perception of the moral integrity of the services in that period?).
Of course the “obligation to make every effort to be heard” ought, in almost every case, to be in unambiguously appropriate venues. What are those? Obviously, behind closed doors with other senior leaders one would expect and hope for frank discussion by all participants. Obviously (although in practice more tricky in handling well), frankness is appropriate before appropriate bodies of the Congress, where senior leaders are expected and required to give their honest military assessments.[18]
Furthermore, in the ideal situation, all participants would emerge from these discussions feeling not only that they had expressed their opinions, but that they had been “heard” at a significant level, and satisfied that even if the decision went in a different direction, they could understand and accept the reasons for the decision.
But what about the case when all does not go so well? Myers and Kohn argue that “There was no ‘truce’ between the military and civilians after 9/11 because there had never been a war. There was just the friction and distrust (never open but exacerbated by Rumseld’s approach and style) inherent in U.S. civil-military relations.”[19] In other words, on their analysis, the situation was not a crisis in civil-military relations, but only a somewhat extreme position on the normal scale of tension inherent in the U.S. system.
But clearly, the senior officers who publicly dissented did not view the situation in that way. One of them, in fact, in a private conversation, called it a “Constitutional crisis,” and argued that only such a grave situation could possibly have motivated him to such a breach of the normal self-restraint of self-expression by officers. What kinds of disagreement might warrant the perception that the situation was indeed that extreme and placed the decision firmly in Clifford’s third category of moral objection?
The first such extreme case is so extreme that one might even argue it falls into the illegal order category – although not as we usually think about illegal orders as orders to violate the jus in bello rules of just war. Let us remind ourselves that the Nuremberg Trials distinguished three distinct categories of war crimes. The more familiar are violations of the law of war and crimes against humanity. But the third, crimes against peace, is defined as “(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).”
Although it’s hard to know precisely what Lt. General Newbold meant when he described Iraq as “an unnecessary war,” it is certainly patient of the interpretation that his continuing participation in the planning of it would place him in the position of participating in a war crime of this type. For the purposes of moral analysis, it is not essential that we determine whether we agree with that assessment or not, but only that (if this is the correct interpretation) that he sincerely believes it to be. Further, the obvious fact that no one in the U.S. government is likely to be prosecuted for such a crime in the current geopolitical environment is also irrelevant. At a minimum, one can certainly see why an officer who believes the case approaches this category would be, at a minimum, in Clifford’s category three level of moral distress, and might well feel it rises to category four.
Another area where public dissent should at least be entertained as warranted is the case there the officer is as cognizant as possible of all the details of the war plan and, in the full exercise of his or her professional military judgment, honestly feels the plan will lead to disastrous consequences for the nation and for the soldiers, sailors, airmen and Marines about to be committed to the battle. Here we obviously don’t mean the plan has garden variety flaws or weaknesses. Rather, the case must rise as close as is possible (for a matter which is inherently a matter of professional judgment) to being unambiguously a recipe for disaster according to every principle of professional military judgment available to the officer. Here, surely, if the claim that we expect officers to be professional and to exercise professional judgment rather than lapse into the role of merely obedient bureaucrats, this is the moment where we expect them not willingly to participate in bringing on the debacle. Just as we would expect a physician not to agree to perform a procedure she knows to be inappropriate for the patient, we should expect professional military personnel not to willingly execute plans they know to be disastrously flawed.
Officers’ sincere belief (even if objectively mistaken) that they are in such a situation certainly justifies their availing themselves of the opportunity if available to leave their positions. At the senior levels, it is apparent that the retirements requested for such reasons will almost always be quickly granted – if only for the practical reason that no one would want a plan executed by officers who have no faith in it.
But what about the last step: publicly criticizing leaders and plans from the newly-acquired perch of the retired officer? Permission to do this should, of course, be granted only grudgingly for all the excellent reasons the critics of the “revolt of the generals” cite. But it seems to me an absolute rule against it flies in the face of any notion of fundamental moral responsibility and loyalty to the nation and the Constitution. There can be no algorithmic rule, of course, to set the bar for such extraordinary dissent at the proper level. Father Clifford, in fact, moves to an analysis of the virtues of prudence, courage and temperance to attempt to guide such choices and, in the end, Aristotle’s claims about such virtues remain valid: there is no rule for them, except “we know virtue when we see it” in the conduct of great souled people.
It is on this point that Clifford faults Newbold personally. He writes, “General Newbold’s decision to retire in 2002 exemplifies the inadequacy of [the option of just retiring]. His departure caused no waves and apparently did not prompt a reexamination of the policies and plans with which he so vehemently disagreed” (120).
Instead, Clifford argues:
If [Newbold] could have made a persuasive case against the policies and plans he found morally objectionable without revealing classified information, then, given the magnitude of the issues at stake, he should have [resigned and spoken out] instead of [merely retiring]. That failure points to deficiencies in one or more of these three virtues: prudence (lacked wisdom to see the full importance of the issues at the time he resigned), courage (too timid), or temperance (too concerned about his position on the team of future influence) (124).
Although this seems a harsh judgment, everything in the argument developed to this point suggests this is the right judgment. To approve it is to run great risk of appearing to countenance insubordination whenever there is dissent regarding policy. Clearly, no such thing is intended, and the author has argued in print elsewhere strenuously against such dissent.[20]
But in any profession, there are cases where the clearly foreseeable consequences of playing by the ordinary professional rules are so great that we expect those rules to be set aside. For example, the famous Tarasoff case in California ruled that, although psychiatrists’ have a near absolute requirement confidentiality toward their patients, that requirement must be set aside when warning potential victims of violence can save life and added a “duty to warn” to the moral requirements of the profession.
Similarly, if the intellectual component of military professionalism means anything, it must mean that there are rare cases of utterly unambiguous bad military judgments that promise to have disastrous consequences. In such cases (one hopes, very rare indeed) the obligations of military professionals, precisely because they are professionals and not “merely obedient bureaucrats,” must go beyond conduct governed by the rules derived from more routine contexts.
NOTES
[1] Don M. Snider and Lloyd J. Matthews, The Future of the Army Profession, second edition, revised and expanded, (Boston: McGraw-Hill Custom Publishing, 2005).
[2] Richard H. Kohn, “Out of Control: The Crisis in Civil-Military Relations,” The National Interest, no. 35 (Spring 1994) 3-17. See also Marybeth Peterson Ulrich, “Infusing Normative Civil-Military Relations Principles in the Officer Corps,” The Future of the Army Profession, pp. 655-682. Martin L. Cook, “The Proper Role of Professional Military Advice in Contemporary Uses of Military Force,” (Parameters v. XXXII n. 4, Winter 2002-2003), 21-33.
[3] The most extensive discussion of this question can be found in Michael C. Desch, “Bush the the Generals,” Foreign Affairs (May/June 2007) and in the articles critiquing Desch’s piece in the “Has Bush Neutered His Generals” section of the September/October issue of Foreign Affairs which has separate pieces from Richard B. Myers and Richard Kohn (which rejects most of Desch’s claims as overstated), Mackubin Thomas Owens (which asserts the military’s willing complicity in most of the flawed assumptions of the war plan for Iraq), and Lawrence Korb (who argues the deeper problem is the Bush administration’s tendency to use the military as a stage prop and support for their policies – specifically criticizing General Petraeus publication of an op-ed piece in the Washington Post supporting Bush policies in Iraq on the eve of the 2005 election). Although it is the subject of another paper than this one, Korb and Desch are correct, in my opinion, that the deeper issue is the military’s being manipulated in a fashion where “support the troops” seemed for much of this period to cash out to mean “don’t criticize the policy.” It’s hard to know how this can be controlled when the Commander in Chief request backdrops of uniformed soldiers at speaking event after speaking event.
[4] It is important to note that General Myers and Richard Kohn, in their critique of Desch’s Foreign Affairs piece, strongly deny this claim in its strong form. At most, they argue, “…the combatant commander often found the probing and questioning of plans by Secretary of Defense Donald Rumsfeld and the Joint Chiefs of Staff distasteful. But in the end, all involved supported the final plan regardless of the disagreements along the way,” “The Military’s Place,” Foreign Affairs (September/October 2007, 147)
[5] “US Civil Military Relations Since 9/11: Issues in Ethics and Policy Development,” The Journal of Military Ethics (forthcoming).
[6] http://www.cdi.org/program/document.cfm?DocumentID=2208&from_page=../index.cfm It is striking how central McMaster’s book has become to all sides of this debate. Owens, in particular, places much of the blame for the current confusion in civil-military relations on what he considers a misreading of the book, which leads (he claims) to “a widespread belief that officers should be advocates of particular policies rather than simply serving in their traditional advisory roles,” “Failures Many Fathers,” Foreign Affairs (September/October 2007, 150).
[7] Peter Spiegel and Paul Richter, “Anti-Rumsfeld Chorus Grows,” Los Angeles Times, April 13, 2006.
[8] These officers include Maj. Gen. Charles Swannack, recently retired from commanding the 82nd Airborne; Maj. Gen. John Batiste, former commander of the 1st Infantry Division in Iraq and former advisor to then Deputy Defense Secretary Paul Wolfowitz in the buildup to the war; former general and former Secretary of State Colin Powell; Lt. Gen. Greg Newbold, retired director of operations for the Joint Staff who retired early largely because of his opposition to the war; and Maj. Gen. Paul Eaton, in charge of the training of the new Iraqi military force. In addition, former CENCOM commander Antony Zinni has been a harsh critic of the war from its very inception, as has general William Odom, former head of the National Security Agency, and former CENTCOM commander Joseph Hoare. All told, several retired general officers have specifically called for Secretary of Defense Rumsfeld’s resignation. See The Wall Street Journal, May 13, 2006, A1: Greg Jaffe, “The Two Star Rebel.”
[9] Obviously, since all the officers in question are retired – albeit very recently – they are not technically insubordinate since they are no longer in a chain of command. But the professional status of retired general officers (perhaps especially very recently retired ones coming from pivotal positions from which to have observed policy and implementation intimately) is an important professional ethical question. Clearly, the force of their criticisms and the weight it carries with the public, the media and the Congress, results directly and only from their former military status.
[10] Even this is debatable, in fact. Title 10 clearly includes retired members of the active duty force as fully members of the force. They have not resigned their commissions and they are still under the jurisdiction of the UCMJ. Despite this, however, there is no precedent I could locate for disciplining or charging a retired officer to criticizing politicians, policies, or practices in ways that would clearly not be acceptable if they were still in uniform. Further, it would be virtually impossible to do so for any given individual without the clear appearance of selective enforcement, given the prevalence of retired officers serving as “media consultants” for the 24 hour new cycle and, perhaps more alarmingly, using their status as retired officers as a platform from which to endorse political candidates.
[11] On the other hand, one might really question the wisdom of officers’ trading on their military prestige to weigh in on one side of a bimodal political divide involving mostly issues on which they have no expertise whatsoever. Snider, in an unpublished West Point talk, comments as follows: “Unless the Services can self-police their retired ranks through moral suasion, the risks of such increased erosion of civ-mil norms (a non-partisan military) is likely, at some point, to be correct by legislation that the military, retired and active, will not welcome.”
[12] Swain, 19.
[13] Cited in George M. Clifford III, “Duty at All Costs,” Naval War College Review (Winter, 2007. Vol 60, n. 1), 103.
[14] Clifford, 106.
[15] I stress that the illegal category “easy” only theoretically. In actual practice, militaries do a mediocre job at best actually preparing officers and enlisted personnel to recognize illegal orders, and even less to create structures to encourage disobedience. Professor Mark Osiel’s excellent book, Obeying Orders: Atrocity, Military Discipline, and the Laws of War (Edison, NJ: Transaction Publishers, 1999) is a superb attempt to spell out ways in which this could be substantially improved, while retaining due deference to the necessities of good order and discipline.
[16] Clifford, 108.
[17] Clifford, 108.
[18] A perfect example of the complexity of this problem in practice occurred in September when General Petraeus, before the Senate Armed Service Committee, was asked by Senator Warner whether invading Iraq had made America safer. General Petraeus’ careful answer confined itself to how best to handle the immediate issue before him in trying to manage Iraq at this juncture. He clearly evaded the question Senator Warner was asking him: whether the strategic justification for going to Iraq were valid in the first place. In my opinion, he was in this case right to do so, since it invited a wholly retrospective judgment about decisions made years before the responsibility was his. But it is an interesting question whether a Regional Combatant Commander, confronted with a similar question from a body of Congress on the eve of a military operation, would be within the scope of his or her professional competence to offer a strategic assessment of the wisdom of the Administration’s contemplated and imminent military engagement. In this author’s opinion, it would be.
[19] Foreign Affairs (September/October 2007, 147)
[20] “The Moral Role of Professional Military Advice,” in The Moral Warrior: Ethics and Service in the U.S. Military (Albany: SUNY Press, 2004).