Refusing to Obey

I'm a bit late to the party with this story, particularly considering its relevance to some of my previous writings, but the court-martial of 1st Lt. Ehren Watada, who refused an order to deploy to Iraq on the grounds that the war is immoral, provides an instance of an officer (one lonely officer) who takes exactly the stance I argue for here (subscription required). That argument, in brief, is that soldiers have a moral obligation to refuse unlawful orders. Typically "unlawful orders" is taken to apply only to jus in bello questions, and not to jus ad bellum. I argue that the distinction, particularly in a democratic society, is unfounded, and that the obligation to refuse unlawful orders ought to apply to unlawful wars in addition to unlawful acts. Since the Iraq war is, arguably, illegal, a soldier ought therefore to refuse to wage it.

LT Watada refused on exactly those grounds. Two weeks ago (toldya I was late), a military judge, LTC John Head, ruled that Watada cannot base his defense on the war's legality, claiming that "the issue of whether the Iraq war is lawful is a nonjusticiable political question." Now at first brush, this claim looks absurd. How could the lawfulness of a war be a political question? I'm certainly no lawyer, but I'm still pretty sure that 'lawful' is a legal term.

LTC Head's argument, however, is not all that uncommon in the just war literature, and it's particularly common in Army doctrine. The argument typically offered is that wars are justified via a formal process, and that formal process is a political one. In the U.S., that process involves a Presidential decision to send troops somewhere followed by Congressional approval. Once that process is complete, soldiers are obligated to abide by the decisions of that process. Paul Christopher, for example, writes that

it is profoundly arrogant for officers to take the view, as some military officers do, that after the national debate takes places, and the president and Congress decide to act, then the officers should have the latitude to follow their own conscience, either assenting or declining to follow the order of the president (Christopher, The Ethics of War and Peace, p. 241).

Following the formalist line of Christopher and Head, we have

FJ: A war is morally justified iff it is formally approved.

There is, however, a fairly glaring problem with this line of reasoning. After all, the president and Congress ought, one would think, to maybe consider whether or not the war in question is morally justified before they make a determination about waging it. Yet on the Christopher/Head line, any war that Congress and the president jointly undertake will be justified. Because the very process of undertaking the war is the moral justification for that war. Surely that can't be right.

Consider an analogy with the legal system. Suppose that we were to say something like the following:

A criminal is guilty iff he is found to be guilty through a formal legal proceeding.

Sounds good so far. Now suppose that you are a juror asked to decide on a defendant's guilt. You then say, "Hey, by definition, the dude is guilty if I say that he is. So why bother with the whole trial thing. Let's just skip straight to the verdict." Sound good to anyone? See, the point of a formal system of justice is that it is the best method we know of for getting us to the question of objective justice. But when we deliberate, within our formal system of justice, our goal is to determine whether or not the person in question really is guilty.

Similarly for war. When we deliberate about which wars we ought to fight, we have to ask whether the war really is just. Our conclusions should then inform the formal system, such that Congress ought to approve wars only if they are objectively just. The point, though, is that, whatever theory of just war we come up with, that theory must be something different from the formal process of declaring war. It has to. Otherwise the question, "Is this war just" is pretty much meaningless, since, unless it's declared as part of a coup, it's going to be just by definition.

What that means, then, is that the legality of a war is not purely a political consideration. Or at least, it's not necessary that it be one. There may well be constraints placed on the president and/or Congress -- laws that restrict when and where wars may be conducted. Congress could just decide wrongly, in violation of its own laws. Or in violation of the Constitution itself. In such a case, the formal political process would produce an objectively unjust war. Why, then, is it so absurd -- or arrogant -- for a highly-educated, intelligent officer (qualities that most officers, in my experience, do in fact possess, however determined they may seem at times to try and hide both) to second-guess Congress and the president?

Personally, I think that LT Watada was exactly right to refuse to deploy. It's appalling to me that he is pretty much the only soldier to have done so. (Random question: Why is it that only junior officers have managed to exhibit any moral courage during this whole debacle? See also CPT Ian Fishback). Still, even leaving the larger question aside, it seems pretty obvious to me that LTC Head's grounds for excluding LT Watada's defense are, well, morally pretty shaky. Not to mention legally fairly absurd.