Candor, Dissent, and Obedience: Reexamining Moral Obligations in the Professional Military Ethic

Obedience is the cornerstone of the American military ethic. From a soldier’s induction onward, the concept of subordination to superior military authority and ultimately, civil government — as embodied in the Constitution of the United States — is continually imbued. Yet for military officers, obedience must be balanced with the duty to offer professional advice to superiors — whether uniformed or civilian — and regardless of whether the advice conforms to existing thought or policy. Traditionally, this quality has been termed “candor,” a word with passive connotations. An alternate word with active connotations — dissent — exists, which better defines the officer’s moral obligation to proffer professional advice; yet prior to accepting this definition one must first closely examine the true meaning of dissent and treat the traditional baggage associated with this word in the military context. This article explores the legal and ethical basis of dissent in the U. S. Army, its application, and the limits to which such dissent is considered professional and tolerable. Ultimately, this article establishes parameters for appropriate dissent within the professional military ethic and recommends further education and training in responsible dissent. Candor and Dissent “Candor: the state or quality of being frank, open, and sincere in speech or expression; candidness; freedom from bias; fairness; impartiality.1 Dissent: to differ in sentiment or opinion, esp. from the majority; difference of sentiment or opinion.2” Placed aside each other, the differences between candor and dissent are evident. The definition of candor implies passivity; something must act upon the object to produce candor. Dissent, rather, implies active exercise upon the object. Militarily, this difference is of great significance. This definition implies that the candid military professional must wait for an outside influence to act upon him to produce candor; that is, he must wait for his superior to ask him his opinion before offering a frank, open, etcetera, response. This situation is inconsistent with the expectations of a professional, who is duty bound to “express [his] expert point of view on any matter touching the creation, maintenance, use, or contemplated use of the armed forces … regardless of whether the advice was solicited or regardless of whether the advice is likely to be welcomed.”3

Superiors are often unwilling to ask subordinates with potentially dissenting views their opinions because they do not want to hear the response. Not being asked does not absolve the professional from a moral responsibility to offer professional advice. The professional must therefore go beyond waiting to be solicited and actively proffer his opinion when, in his professional judgment, his superior needs to hear it. This act is an act of dissent. It is important here to recognize that nothing in the definition of dissent implies public registration, although dissent in military terms is almost always associated with public dissent. Failure to recognize different types of dissent is an inhibitor to mature discussion of the subject and harms the profession. Dissent can occur privately, publicly, or in a pseudo-public setting. Private dissent is simply a one-on-one discussion between superior and subordinate in which the subordinate vocalizes a view differing from the superior’s. This form of dissent is generally considered a professional’s prerogative, although it is usually not termed “dissent” because it occurs privately. Public dissent traditionally consists in registering a dissenting view in a setting that is not private, which means that any dissent aside from a closed, one-on-one setting is public. This definition of public dissent is too broad and must be limited to have useful meaning. Public dissent should be defined as openly dissenting toward a target audience that is not empowered to decide an issue. Strategically, this would encompass publicly registering dissent over policy to the media or American people while still a serving officer. Tactically, this would consist of registering dissent to subordinate military personnel within the chain of command. Thus construed, public dissent should not be allowed because it erodes civil control of the military on one hand, and the military chain of command on the other. But how is dissent among other key leaders or advisors characterized? Is registering dissent in a meeting public dissent and therefore off limits? Is a discussion between a commander and his staff regarding the implications of an impeding or taken decision, conducted for the sole purpose of creating an alternate proposal for a superior, public dissent? Such instances constitute a gray area in the dialogue over dissent and must be resolved to clearly appreciate the limits of acceptable dissent. “Pseudo-public dissent” is a useful term under these circumstances. The subordinate is registering dissent outside a closed, one-on-one session with his superior. Unlike public dissent, however, his target audience is the decisionmaker, not a public audience. Other witnesses to this dissent, such as in a closed meeting or staff discussion, may make the dissenting officer’s opinion a matter of public knowledge, but the dissent was proffered in an environment of professionals discussing a particular decision. Pseudo-public dissent is therefore totally consistent with professional norms and is necessary to ensure that dissenting opinions are clearly stated to the superior’s other advisors, whose calculations and advice might require reconsideration based on the dissenter’s position. An example of this dynamic would be a command and staff meeting conducted within a military organization where the commander decides on anew policy. One of his subordinate commanders recognizes a flaw in the policy that affects his unit. If he privately dissents — that is, waits until the meeting is over and addresses his superior behind closed doors — the parent unit, as a whole, runs the risk that other subordinate commanders will not hear the dissenting view and evaluate whether the same policy flaw affects their units. As a result, the policy is decided on at that meeting without discussion. Later, each individual subordinate commander realizes the policy flaw’s effect on his unit and registers private dissent. Because the decision has already been taken and the dissenting voices are heard one after the other, after the fact, the commander decides to continue to policy, negatively affecting the subordinate units and eroding trust in the chain of command. This negative outcome might have been avoided by simple, pseudo-public dissent. The benefit of this dissent therefore outweighs the potential for the dissenting subordinate’s disagreement over the policy to be ‘leaked’ publicly by another attendee to a public audience. Dissent is therefore not necessarily public, although it can come to the public’s attention in the manner described above. The question then becomes: is dissent at odds with the professional obligation of obedience? Our legal and moral codes, even our doctrine, suggest it is not. Obedience and Dissent The legal foundations for the U. S. Army and, by extension, its professional conduct, are many.4 The capstone document, the United States Constitution, Title X of the U. S. Code, provides the detailed legal basis for the Active Component’s organization, manning, and etcetera. Chapter 47, Title X, contains the Uniform Code of Military Justice (UCMJ), which is where any legal examination of professional conduct must begin. The UCMJ’s 58 punitive articles are silent on the subject of dissent, although two articles (Articles 90 and 92) directly address the topic of disobedience of orders.5 Additional articles could be construed to prohibit public dissent, although this term is never explicitly used. Legally, dissent — especially private and pseudo-public — is allowed. This legal understanding must be supplemented by an examination of the Army’s moral code. Again, there are numerous moral foundations for professional conduct. That said, one foundation stands out from the rest. On induction into the “Obedience is the cornerstone of the American military ethic. From a soldier’s induction onward, the concept of subordination to superior military authority and ultimately, civil government — as embodied in the Constitution of the United States — is continually imbued.” 8

“The immediately evident difference is that while enlisted soldiers are sworn to obey the orders of the President of the United States and the officers appointed over the soldier, the officers themselves are not sworn to obey. This distinction, however, is reserved for extreme cases; the officer’s oath is not a license to disobey.” Army, or one of its offices, every soldier swears an oath; these solemn oaths, individually sworn, form the absolute basis of acceptable professional conduct. Significantly, the enlisted soldier’s oath differs from the officer’s, and the differences are critical: “I, (Name), do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”6 “I (Name) (Social Security Number), having been appointed an officer in the Army of the United States in the grade of (Rank) do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; so help me God.”7 The immediately evident difference is that while enlisted soldiers are sworn to obey the orders of the President of the United States and the officers appointed over the soldier, the officers themselves are not sworn to obey. This distinction, however, is reserved for extreme cases; the officer’s oath is not a license to disobey. In addition to legal obligations, the Army’s doctrine on leadership states, “Commissioned Army officers hold their grade and office under a commission issued under the authority of the President of the United States. The commission is granted on the basis of special trust and confidence placed in the officer’s patriotism, valor, fidelity, and abilities. The officer’s commission is the grant of presidential authority to direct subordinates and subsequently, an obligation to obey superiors.”8 Obedience to superiors is thus implied. The reason for implied obedience rather than a moral imperative to obey is twofold. First, the framers of the Constitution were deeply fearful of the military and, to an extent, the Executive Branch. They feared that by controlling the military, the Executive Branch of government could gain supremacy over the other branches, violating the concept of checks and balances. Therefore, to forestall a military coup or improper extensions of Executive power, the Constitution swears officers to support and defend it, even if it means subordinate officers’ disobeying the orders of superior military (or even presidential) authority. Second, the role of the officer must allow for discretion in the execution of orders. Returning to Army Leadership, “An enlisted leader swears an oath of obedience to lawful orders, while the commissioned officer promises to, ‘well and faithfully discharge the duties of the office.’ This distinction establishes a different expectation for discretionary initiative. Officers should be driven to maintain the momentum of operations, possess courage to deviate from standing orders within the commander’s intent when required, and be willing to accept the responsibility and accountability for doing so.”9 The bottom line is that while enlisted soldiers are sworn to obey orders, officers are allowed discretionary latitude to uphold their oaths and discharge their offices. Although, in no way sanctioning outright disobedience (except in rare circumstances), the officer’s oath implies a duty to dissent along with the implication to obey. This is particularly true of the Army’s senior officers who “bear a particular responsibility for the consequences of their decisions and for the quality of advice given — or not given — to their civilian superiors” (emphasis mine).10 9

Senior Officer Dissent The ongoing wars in Iraq and Afghanistan — and senior officers’ roles in advising political leaders formulating policy and/ or strategy to initiate/prosecute those wars — underlie much of the recent inquiry into dissent and the professional military ethic. Interestingly, the conventional association of dissent with public registry appears throughout many of these publications. Thus, much of the discussion regarding dissent and the professional military ethic focuses entirely on public dissent. This is insufficient for our purposes; any inquiry into dissent must address private and pseudo-private dissent, as well as public dissent. Fortunately, many of the constructs advanced to address public dissent are useful in evaluating private and pseudo-private dissent as well. In his monograph, Dissent and Strategic Leadership of the Military Profession, Professor and retired Colonel Don Snider argues that American senior officers must maintain three critical tively proffering professional advice to superiors — is often taken for granted. History shows this to not necessarily be the case.13 In addition to dissuading public dissent, military ethicists must also encourage responsible public and pseudo-public dissent. Although in many cases, ethicists’ impact on serving senior leaders may be limited, encouragement to responsibly dissent may impact future senior leaders during their formative years and ensure these leaders are better prepared to meet their moral obligations upon becoming senior leaders. Army Chief of Staff General Eric K. Shinseki’s 25 February 2003 testimony to Congress is an example of responsible pseudo-public dissent. Asked by Senator Carl Levin for his professional opinion regarding “the Army’s force requirement for an occupation of Iraq following a successful completion of the war,” General Shinseki responded “something on the order of several hundred thousand soldiers.”14 This testimony ignited a fierce debate between Shinseki and his civilian superiors over the amount of soldiers required to occupy Iraq, and ultimately led to Shinseki “Commissioned Army officers hold their grade and office under a commission issued under the authority of the President of the United States. The commission is granted on the basis of special trust and confidence placed in the officer’s patriotism, valor, fidelity, and abilities. The officer’s commission is the grant of presidential authority to direct subordinates and subsequently, an obligation to obey superiors.” “trust relationships:” the relationship between the military profession and the American people; the relationship with publicly elected and appointed civilian leaders; and the relationship with subordinate military leaders.11 Failure to maintain these trust relationships results in the profession being reduced to “just another governmental bureaucracy.”12 Thus, senior officers’ decisions to publicly dissent must be weighed against the potential damage inflicted on the critical trust relationships. Taking Snider’s argument further, one concludes that the three trust relationships apply to private and pseudo-private dissent as well. Failure to dissent — to provide differing professional opinions when warranted, whether sought or unsought — impinges on these trust relationships just as surely as public dissent erodes them. Private dissent — a senior leader’s act of ac-being marginalized until his retirement on 11 June 2003. Despite countering his civilian superiors’ assessment, Shinseki’s response was totally in keeping with a senior officer’s moral obligation to provide “my best military judgment on issues of importance to the Army, the Department of Defense, and the Nation.”15 What differentiates Shinseki’s testimony from public dissent is that first, it was directed toward a decisionmaker (the United States Senate) and not the public at large; and second, it was required by the Army’s legal and moral code. Issues of pseudo-dissent are not always so clearcut, but Shinseki’s example should reinforce the importance of pseudo-public dissent at the senior officer level. Considering Shinseki’s testimony through the prism of the trust relationships, one concludes that his testimony adversely impact- 10 ed only one component of one of the three critical trust relationships (the profession’s relationship with civilian leaders in the Office of the Secretary of Defense); it might actually have strengthened the profession’s relationship with the American people by demonstrating professional credibility (especially considering subsequent events), strengthened the profession’s relationship with civilian leaders in Congress by demonstrating the apolitical nature of military advice proffered by senior officers, and strengthened the relationship with subordinate military leaders by providing a concrete example of moral dissent. It is important here to return to Snider’s treatment of public dissent and the trust relationships. Snider argues that there are five considerations, which a senior leader must examine when deciding to publicly dissent: the gravity of the issue; the relevance of the professional’s expert knowledge and expertise to the issue at question; the personal sacrifice to be incurred in dissenting; the timing of the act of dissent; and the congruence of such an act with the previous career of service and leadership within the military profession.16 These considerations should be examined whenever dissenting — publicly or otherwise. Upon deciding to dissent, senior leaders must then decide on the nature of the dissent. Again, Snider provides a useful construct for pursuing dissent. As illustrated in Figure 1, options pursued are balanced by the resistance to the professional’s expertise versus the threat to National Security. 17 Private dissent is not included; perhaps because this chart assumes it has already been attempted and failed. The remaining options encompass pseudo-public and public dissent. In total, they provide a dissenting senior officer with differing means to register pseudo-public and public dissent without imperiling civilian control of the military. Junior Officer Dissent18 Much less examined is the practice of dissent at field grade and company grade officer levels. Before proceeding, one must ask why dissent is less prevalent at these levels than at senior levels? The Officer’s Oath applies to all commissioned officers, regardless of rank, and with the office, comes the duty to dissent. The answer is four-fold. First, dissent at junior officer levels is hardly ever public. Army organizations below strategic leadership levels rarely interact with media; therefore, dissent never truly becomes public. Further, dissent between subordinate and superior officers is rarely expressed to the only ‘public’ existing within these organizations — the enlisted soldiers. Second, dissent is rarely discussed openly between junior officers; it therefore retains an aura of unacceptability unless a senior officer publicly espouses the view that ‘disagreement is not disrespect’ despite the moral obligation to dissent. Finally, as Snider relates, the relevance of the professional’s expert knowledge and expertise to the issue at question is a critical consideration when deciding to dissent. Among junior officers, the superior officer almost always has more experience and assumed professional knowledge than a subordinate officer; subordinate officers are thus reluctant to register dissent because of a perceived knowledge gap. Finally, the nature of units’ missions at the junior officer level often necessitates rapid execution after a decision is taken. Contact with enemy forces and the associated risks to mission and men generally preclude arguments over ‘go left’ or ‘go right’ decisions while under fire. This truth is the ultimate reason for the military ethic’s demand of obedience and fulfillment of orders. As we have observed, however, obedience and dissent are not mutually exclusive. As with senior officers, junior officers retain the discretionary latitude to fulfill their offices, and thus, retain the moral obligation to dissent. The lack of observed dissent at the junior officer level should not preclude its occurrence, nor should it absolve junior officers of their obligation to dissent. Although modified, junior officers maintain the moral imperative to dissent when they believe a superior’s decision warrants it. Although public dissent is not an option and the means to register dissent (including retirement, congressional visit/testimony, etcetera) are usually limited, Snider’s five considerations of the gravity of the issue; the relevance of the professional’s expert knowledge and expertise to the issue at question; the personal sacrifice to be incurred in dissenting; the timing of the act of dissent; and the congruence of such an act with the previous career of service and leadership within the military profession, still underpin any decision by a junior leader to dissent. As with senior officers, junior officers should only register dissent (private or pseudo-public) if their assessment is that the risk to the mission and men is incongruous to the decision taken. That said, senior officers do take the personal risk and dissent far more often than junior leaders, which is interesting. Decisions made in close combat produces loss of life more instantaneously than strategic leaders’ decisions; in combat, the gravity of the issue (life or death) is often elevated, yet many junior officers are reluctant to register even private dissent in most circumstances. There are instances where the subordinate’s professional expert knowledge and expertise exceeds that of his superior: often in matters relating to local conditions (terrain, populace) and enemy behavior. The junior officer faces extreme personal sacrifice (increasing as the echelon of command decreases) if the decision is wrong. In every one of Snider’s five considerations, the junior officer in combat is often validated in dissenting, yet fails to. This extends beyond private dissent to pseudo-public dissent. The example of the command and staff meeting is analogous here. Subordinate commanders and staffs will often acquiesce without comment toward a senior officer’s decision in combat, Resign Congressional testimony Scholarly paper Congressional visit Public Information High Resistance to Expertise Retire Request reassignment Collaboration Low Low High Threat to National Security Acquiesce Figure 1 11 despite personal reservations. Like the command and staff meeting earlier, the outcome is often disastrous, yet lack of dissent prevails. One explanation proffered by Douglas Lovelace and Leonard Wong for this phenomenon is that the combination of the Army’s ‘can do’ attitude with cultural deference to authority within the military precludes responsible dissent.19 To this should be added that because the Army does not train and educate responsible dissent to its junior leaders, there should be no expectation that junior officers engage in the practice. Paradoxically, junior officers are quick to offer candid advice and professional opinions when asked by superiors. This suggests that junior officers are capable of responsible dissent if properly educated and trained in its precepts. Imparting Responsible Dissent In a recent interview for the Army’s Virtual Conference on “The Future of the U. S. Army Officer Corps,” retired General John P. Abizaid remarked that the Army should enable officers to interact with senior civilian leaders prior to attaining the rank of (4- star) general.20 Although not addressing the topic of dissent, General Abizaid’s remarks support educating and training officers to conduct responsible dissent. In exposing Army officers to civilian decisionmakers, who, per capita, have limited military experience and limited understanding of the military profession — the Army must equip these officers to provide relevant professional advice to the civilian decisionmakers with whom they interact. This includes educating officers on responsible dissent and reinforcing the notion advanced by General of the Army Eisenhower in testimony to Congress in 1947, “that I appear before you only as a professional soldier, to give you a soldier’s advice regarding the national defense. I am not qualified to proceed beyond that field, and I do not intend to do so. It is my duty as a chief of staff to tell you gentlemen what I believe to be necessary for national security.”21 The necessity of educating and training responsible dissent extends to junior officers as well. Traditionalists may scoff that junior officers should ‘not think, but obey.’ Such myopic thinking is betrayed by the nature of 21st-century military operations. Lieutenants and captains are now responsible for areas and populations far exceeding anything imaginable even 40 years ago during the Vietnam War. They also make decisions with far greater strategic impacts as a result of modern information technology. The trend toward decentralized operations necessitates increased professionalization of junior officers. Inherent in this increased professionalization is greater education combined with military training.22 A critical point of emphasis must be the moral obligation to responsibly dissent. Candor is insufficient as an imperative to provide professional advice to military and civilian superiors because of its passivity. The term “dissent” is much more appropriate, yet its use in the context of the professional military ethic is confused. This confusion stems from an unfounded association of dissent with public registration of differences in opinion. Careful analysis reveals that dissent is simply the act of differing in sentiment or opinion, and that dissent can take different forms, including private, pseudo-public, and public dissent. Contrary to popular belief, dissent is not incongruous with the military imperative to obey; a view supported by the Army’s legal and moral foundations, as well as its doctrine. All officers have a moral obligation to dissent when their professional opinion differs from that of their superior’s. Senior leaders must weigh their dissent against damage to three critical trust relationships that mark the military profession from government bureaucracy and should do so by evaluating the gravity of the issue; the relevance of the professional’s expert knowledge and expertise to the issue at question; the personal sacrifice to be incurred in dissenting; the timing of the act of dissent; and the congruence of such an act with the previous career of service and leadership within the military profession before deciding on the means of registering dissent. Junior officers also retain the obligation to dissent, but often choose not to. This observation deserves further study by ethicists with an eye toward educating and training junior officers in responsible dissent to further the health of the military profession. Notes 1Robert B. Costello, Editor in Chief, Webster’s Time-Life Deluxe Illustrated Dictionary, Time Warner Libraries, New York, NY, 1991, p. 199. 2Ibid, p. 388. 3Samuel Huntington, The Soldier and the State, Belknap Press of Harvard University Press, Cambridge, MA, 1957, pp. 72-73. 4An excellent summary of the foundations may be found in Paul Oh, Don M. Snider, and Kevin Toner, The Army’s Professional Military Ethic in an Era of Persistent Conflict, Strategic Studies Institute, p. 25, available on line at http://www.strategicstudiesinstitute.army.mil, accessed 8 October 2009. Hereafter referred to as “PME.” 5United States Code, Chapter 47, Title X, available at Cornell University Law School website, http://www.law.cornell.edu/uscode/10/usc_sup_01_10_10_A_20_II_30_47_40_X.html, accessed 21 November 2009. 6United States Code, Chapter 31, Title X, available at Cornell University Law School website, http://www.law.cornell.edu/uscode/10/usc_sec_10_00000502----000-.html, accessed 21 November 2009. 7Headquarters, Department of the Army, Form 71, July 1999, available at the Army Publishing Directorate website, http://www.apd.army.mil/, accessed 21 November 2009. 8Headquarters, Department of the Army, Field Manual (FM) 6-22, Army Leadership, U. S. Government Printing Office (GPO), Washington, DC, 2006, p. 23. 9Ibid, p. 24. 10Ibid. 11Don M. Snider, Dissent and Strategic Leadership of the Military Profession, Strategic Studies Institute, p, 16, available online at http://www.strategicstudiesinstitute.army.mil/pubs/display. cfm? PubID=849, accessed 8 October 2009. Hereafter referred to as “Strategic Dissent.” 12Don M. Snider, The Army’s Ethic Suffers under its Retired Generals, Strategic Studies Institute, available online at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm? PubID=903, accessed 8 October 2009. 13American history is replete with examples of professional military advice not just being ignored, but worse, of not being offered in the first place. See especially Harry G. Summers, On Strategy, Presidio Press, Novato, CA, 1982. 14United States Senate Committee on Armed Services, Department of Defense Authorization for Appropriations for Fiscal Year 2004, U. S. Government Printing Office, Washington, DC, 2004, p. 241, available online at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=108_senate_ hearings&docid=f:87323.pdf, accessed 9 October 2009. 15General Eric K. Shinseki, End of Tour Memorandum, 10 June 2003, available online at Washington Post website, http://media.washingtonpost.com/wp-srv/opinions/documents/shinseki.pdf, accessed 21 November 2009. Hereafter referred to as “Shinseki.” 16Strategic Dissent, p. vii. 17Ibid, p. 7; adapted from Douglas Lovelace and Leonard Wong, Knowing When to Salute, Strategic Studies Institute, available online at http://www.strategicstudiesinstitute.army.mil/pdffiles/ PUB798.pdf, accessed 21 November 2009. Hereafter referred to as “Salute.” 18For purposes of this discussion, ‘junior officer’ refers to any officer not serving at strategic leadership levels—typically general officers and senior colonels. For more on Army leadership levels, see FM 6-22, Chapter 3. 19Salute, p. 2. 20This interview available online at https://www.officer-strategy.strategicstudiesinstitute.army. mil/sessions.php?catid=1, accessed 21 November 2009. 21Shinseki, p. 11. 22For more on the relationship of education and training, see James H. Toner, True Faith and Allegiance: the Burden of Military Ethics, University Press of Kentucky, Lexington, KY, 1995, p. 39. Major Mark K. Snakenberg is currently the cavalry team chief, Support Battalion, 196th Infantry Brigade, Fort Shafter, HI. He received a B. A. from Indiana University and is currently pursuing a M. A. in Diplomacy and Military Studies from Hawaii Pacific University. His military education includes the Cavalry Leader Course, Infantry Captain Career Course, Airborne School, and Air Assault School. He has served in various command and staff positions, to include commander, C Company, 2d Battalion, 69th Armor Regiment (2-69 Armor), Fort Benning, GA; assistant operations officer, 3d Brigade, 3d Infantry Division, Fort Benning; chief of operations, 2-69 Armor, Fort Benning; executive officer, B Company, 2-69 Armor, Fort Benning; and platoon leader, B Company, 2-69 Armor, Fort Benning. 12