The Journal "Joint Force Quarterly has published the winning entry in an essay contest. It was written by Lee M. Turcotte. (caution, pdf link)
In the essay, he posits a time when the government has ordered the internment of US citizens who are Muslim, after a time of internally generated terrorist attacks. In this hypothetical, the government orders internment, and the military has to decide whether or not to follow these orders.
Is there a higher moral imperative that means they should disobey the orders?
In the essay, Turcotte writes. “I believe the answer is yes. In practice, though, disobedience on moral grounds is exceedingly unlikely. The year in the scenario is unstated, but the moral and racial questions of this article are urgent. Security environments, threat perceptions, and moral thresholds can shift more quickly than many people care to acknowledge. Moral debate is not a luxury for other, more secure times.”
Given Turcotte’s hypothetical, what should the military do?
The military should disobey such orders, citing applicable portions of the Constitution (and our oath was to the Constitution and the nation, not our commanders or the President). I hope that’s what I would have done had such orders been given when I was in the Navy.
I think the military should follow the orders … because we do have a proper system of justice that would interfere if such orders were illegal or unconstitutional … as we’ve recently seen, any District Court judge can issue a temporary restraining order and stop such internment … and do so before such actions can take place …
It’s a bad idea asking our military leaders to act as though they were court judges …
They don’t have to act as court judges, but they do have to make judgments about the lawfulness of orders given to them,if only because they are not bound to follow unlawful orders (and may themselves incur legal liability if they do).
You avoid this dilemma by not given unlawful orders to the military. But, in the hypothetical where unlawful orders are given, making a judgment as to whether they are unlawful is not something that the military can avoid.
The hurdle for diobeying orders is really REALLY high.
I mean FFS, you can be ordered to kill people. You can be ordered to bomb a location where you KNOW here will be innocent lives lost as collateral damage.
As Watchwolf said. In a democracy with a functional legal system, it is not the military commander’s job to make these determinations. That is how military coups happen. The military is an instrument of the civilian government.
Trust me, if you give the military more leeway and autonomy in deciding what they want to do, this does not land butter side up for Democrats and their ideals most of the time.
These are not decisions properly made by Sergeants and Lieutenants. At their level, unlawful orders need to be shockingly obviously unlawful within the laws of war and the UCMJ. Slaughtering a village My Lai style is an example of following an unlawful order.
If an administration gave such an order, the place to push back on lawfulness is up at the JCS and component commander level. These are the people with the big picture, and the JAG advisors, to make a sound decision. As said above, the whole of the military exists to defend the constitution, not the President’s administration, the Congress, or the Pentagon.
Having said that, in an ideal world our laws and our morality would be comprehensive, congruent, and consistent. In the real world they are none of those things.
If you posit that the military has an absolute duty to follow orders, then you believe they should indeed nuke the entire US if asked. I’m going to bet that vanishingly few people believe that.
Once we agree that absolute order-following is wrong, then we need to place the right/wrong line someplace else. Someplace inherently more nebulous than “always follow everything” or “never follow anything.”
Rather like that famous riposte: “Madam, we’ve established what you are. Now we’re merely haggling on price.”