To prevent automated spam submissions leave this field empty.
Moderator: Gary Solis, Georgetown University Law Center
This panel examined the legal obligations of service members who object to specific armed conflicts on legal and moral grounds, and asked whether soldiers have a right, or even an obligation, to refuse to serve in a conflict they believe violates jus ad bellum, just as they have a right and obligation to refuse orders that manifestly violate jus in bello.
Professor Solis ably kicked off the panel with panelist introductions, and Professor Ackerman led the event by outlining the contours of client, Captain Smith’s, current civil case (details can be found here) in which a U.S. Army captain claims that his deployment orders to fight ISIL violate the War Powers Resolution (because of the lack of explicit Congressional authorization for the armed conflict against ISIL). Professor Ackerman argued that Captain Smith has a constitutional legal duty to disobey such orders flowing from the Supreme Court’s dusty but quite relevant 1804 holding in Little v Barreme; this case emphasized military officers’ obligation to adhere to the Constitution and clear Congressional commands (in that case, dealing with the the scope of a war) despite a President’s conflicting commands. That is, the Court did not allow the defense of superior orders to excuse a clear violation of law. In Little, Congress explicitly authorized the President to allow the US Navy to only capture vessels going to French ports; the Court found that the President lacked authority to unilaterally expand this authority to include the capture of vessels coming from French ports, and that Naval officers were liable for damages for following orders that reflected an unconstitutional executive enlargement of the scope of the military maritime operations.
Professor Ackerman noted that Captain Smith’s case is currently on appeal, as the D.C. District Court found this to be a political question and that Captain Smith lacked standing. In arguing Captain Smith’s position, Professor Ackerman briefly alluded to a 2015 ASIL address by Stephen Preston, the Department of Defense General Counsel at the time, and characterized it as both not in Mr. Preston’s official capacity, and as not providing clarity as to congressional authorization of the conflict against ISIL. This representation of Preston’s speech invoked a bit a of a gentle public rebuke later from a respected member of the audience, who noted during the Q&A that in fact, the Preston 2015 speech was indeed given in his official capacity (as noted in the text of the speech) and certainly seemed to provide clear evidence that the appropriate officials in the Obama Administration had concluded that the armed conflict against ISIS was being conducted under Congressional authorization (by linking it to earlier AUMFs). The speech can be found online here.
Brigadier General Marilyn Chiafullo, USA, next provided a comprehensive and detailed outline of how international law and U.S. domestic law treats the issue of unlawful versus lawful orders and soldiers’ dual duties to obey the latter and disobey the former, with the political theory doctrine as a complicating factor. She highlighted that the Uniform Code of Military Justice (UCMJ) balances the need for good order and discipline, which largely rests on obedience to orders, by providing a legal presumption of lawfulness of superior orders. She quoted the Supreme Court in Parker v Levy, 1974, itself quoting an 1890 opinion, that "An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer or the duty of obedience in the soldier." She emphasized that the habit of prompt obedience is critical to maintaining military mission effectiveness. BG Chiafullo then emphatically recognized that while this presumption is also one long recognized in international law, the other side of the coin is that obedience to orders is not a complete defense, and pointed to the customary international law rule that a superior order is not a defense which was first set forth in the Charters of the International Military Tribunals at Nuremberg and at Tokyo. She highlighted that the rule that superior orders is not a defense (if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered) is reflected in the Rome Statute as well as those establishing ICTY and ICTR. She noted it is important that the order must be manifestly unlawful, and this acts as important protection to insulate service members from complying with unlawful orders that are not clearly unlawful. After outlining the UCMJ’s approach, she turned to note that the political question doctrine sets a higher standard to deal with the Captain Smith issue; she argued that the armed conflict against ISIL would have to be manifestly unlawful and for those military members not at policy-making levels, the fact that they cannot be held criminally liable for jus ad bellum violations should play a role in this analysis.
Ms. Annabelle Bryan next helpfully framed the issue as one of moral injury, highlighting that moral injuries can lead to suicidal ideations and attempts, and noted that moral injury is one that can be treated alongside post-traumatic stress disorder (PTSD). She highlighted that service members may suffer from inner turmoils even if they have not engaged in actual battlefield operations and these inner turmoils may lead to moral injury and perhaps PTSD.
Major Keith Petter, USA, finished the panelist presentations by outlining a case in which a US Army officer refused to deploy to the 2003 Iraq War on the claim that the war was internationally unlawful. He was court-martialed and accepted a plea agreement with a punitive discharge. He used this case to demonstrate that selective conscientious objection is not legally supportable in the US military but that perhaps that should be re-visited as there may be moral reasons to support selective objectors to a particular war. He examined the meaning of conscientious objector in US law, noting it is expressed in the Selective Service Act as well as a DOD Directive and includes the key criterion of sincere opposition against wars in all forms. He noted that a more flexible approach could be useful, and pointed to Germany’s approach which apparently allows alternative dispositions outside of courts-martial for selective objectors.
This was a thought-provoking, comprehensive panel with terrific audience engagement -- thank you, ASIL!
Rachel E. VanLandingham, Lt Col, USAF (ret.), Associate Professor of Law, Southwestern Law School