Okay, so this kind of stuff used to go up on my old blog. Or at Catallarchy. Or even in an academic paper, if I were really serious. But with the official assumption of neutrality at FactCheck, the whole Catallarchy thing had to go. Of course, nothing says that I can’t still have opinions about things. Or that I can’t still write those opinions. I just can’t really publish them. I can, however, share them with friends. And since only friends can view my stuff here, well, you’re getting stuck with it. ‘Course, it’s easy enough to avoid it. Just don’t say that you haven’t been warned.

So there I was on Thursday morning, eating my breakfast and trying not to think too hard about Mitt Romney or tax policy (my current projects at work — and yes, I really am that much of a nerd). I flip open the NY Times and see this headline:

Lawyers on Haditha Panel Peer Into Fog of War

So I’m not sure how many of you realize this, but before I left academia, I specialized in just war theory and military ethics. Well, okay, actually I specialized more broadly in moral and political theory, but most of my recent work had been in JWT. The interest in such topics, of course, came about because I was (un?)lucky enough to land my first teaching job at West Point — a job that I started in August of 2001 and left in May of 2003. Interesting times to associated with military ethics and just war theory.

So anyway, the Times article discusses the trial of a Marine lawyer whose alleged crime is his refusal to launch an investigation into the Haditha shootings. Here’s some background:

It turns out that details of the massacre (there’s really no other way to describe it) made their way up the entire chain of command within just a couple of hours. It also turns out that no one seemed much to care. Here’s a telling exchange at the aforementioned trial:

On Friday Major McCann, an experienced Marine lawyer, interjected some unsettling questions about how many civilian deaths it would take to constitute a violation of military regulations.

Alluding to Haditha, he asked, “At what point do we have to scratch our heads that we killed a lot more civilians than enemy?”

Because so many witnesses had testified that civilian deaths from “combat action” need not be investigated, Major McCann said, “I’m trying to figure out what authority they are citing.”

The witness testifying then, Col. Keith R. Anderson, a senior Marine Reserve lawyer now with the Department of the Navy, delivered a succinct and telling answer. “There is no authority,” he said. “I think it’s just a mind-set.”

It’s a mindset for sure. And it’s one that I saw all too frequently at West Point, too. Call it the “all’s fair in war” mindset. Or maybe just the “whatever it takes to protect my soldiers and accomplish the mission” mindset. Either way.

Now I don’t mean to criticize the general sentiments here. Accomplishing the mission is way important. And protecting one’s soldiers is almost as important. But the thing is, those two things don’t always win out. You see, strange as this may sound, it turns out that people have rights. Shocking, I know. And among those rights, it seems to me, is the right not to be killed at random. This is just a basic human right. Indeed, it’s the fact that this sort of right was violated routinely that still constitutes the best (and this is relative here, but that’s another post) available argument for being in Iraq in the first place.

Okay, you say. Why mention this at all? It’s pretty obvious, after all. And, yes, it is obvious. Except that you have to remember that people in Iraq have exactly the same rights. Indeed, the only people who lose those rights are, well, combatants. People who aren’t combatants — loosely defined as people who don’t have a weapon — have the right not to be killed at random. Haditha, however, quite simply was the killing of noncombatants pretty much at random. It was a refusal to pick targets discriminately. The marines in question simply shot everything that moved. Including people who were clearly in submissive positions and who quite obviously constituted zero threat.

And that shows, really, the limitation of the “whatever it takes” mindset. Because certain actions are off-limits to soldiers. And those actions are off-limits even if it increases the likelihood of getting soldiers killed. It may suck, but it is, quite simply, one of the requirements of soldiering. In truth, it’s no different from the requirements that we place on the police. A cop has to be sure that his target really is a threat before he can fire. And the cop has to choose targets carefully. Cops who just burst in and shoot everyone in the room find themselves on trial for murder. Marines have to meet those same standards.

Unfortunately, this fairly basic principle of morality doesn’t seem to be much on display in the Marine Corps. The Army has spent lots of time and even more money trying to figure out how to instill a sense of moral responsibility into its officers, to varying degress of success (see Abu Ghraib). But the Army, at least, recognizes that said sense of responsibility ought to exist. What does one do in a Marine Corps that seems to think that they don’t need to be bothered with it in the first place?

Big news Thursday out of Fort Lewis — or at any rate, big news for those of us who have been following the court-martial of LT Ehren Watada. For those not following at home, LT Watada was court-martialed for his refusal to deploy to Iraq. Watada does not deny deliberately refusing the order, and argues in his defense that the order to deploy was actually an illegal order. Unfortunately, Watada was unable to air that argument in court. The presiding officer in Watada’s case, a LTC John Head, more-or-less completely undermined Watada’s defense, ruling in a pre-trial motion that questions of the war’s legality are nonjusticiable and hence disallowed in Watada’s court-martial.

The surprise not-really-an-ending is that the case ended in a mistrial. The ruling ultimately had little to do with the issue at hand directly; the judge ruled that a pre-trial agreement between Watada and the prosecution inadvertently stipulated to Watada’s guilt. As such a stipulation was not the intention of either side, LTC Head ruled that the document was invalid. The prosecution then requested a mistrial, which Head granted.

I don’t actually have all that much to say about the legal wrangling involved in the mistrial decision. I’m more interested in the backstory. In my academic writing, I’ve argued for a position much like the one that Watada actually endorsed (if you’re interested, you can find it here. A subscription is required, though.) I took up some of those themes earlier here, here and here.

As I was preparing to give a lecture on this topic last week, I finally realized, though, what troubled me so much about LTC Head’s ruling. Head drew upon an earlier precedent in banning mention of the war’s legality, namely, US v New, which established that the order to deploy is nonjusticiable. The court’s reasoning in that case goes something like the following:

1. Orders are presumed to be lawful.
2. Only obviously unlawful orders are to be refused.
3. An order is obviously unlawful if and only if a person of ordinary moral sense and understanding would take it to be unlawful.
4. A person of ordinary moral sense and understanding would not take an order to deploy to be unlawful.
5. Thus, the order to deploy is not obviously unlawful.
6. Therefore, the order to deploy ought not be refused.

I think that there is a pretty serious problem with (3). I don’t at all dispute that an order is obviously unlawful if a person of ordinary moral sense and understanding would take it to be unlawful. What I do dispute is that an order is obviously unlawful only if a person of ordinary moral sense and understanding would take it to be unlawful. Suppose, just to pick a totally random example, that a national guardsman was ordered to fire his weapon at a group of anti-war protesters on a college campus in, say, I don’t know, Northeast Ohio. Now it seems to me that such an order is pretty obviously unlawful. And I think that, these days, no Guardsman would ever actually obey such an order. Yet a judge dismissed charges against 8 soldiers who did just that.

In short, it’s pretty hard for me to see why it is that the lawfulness of my actions should turn on whether or not most people see that the act is illegal. If I happen to be a person of extraordinary moral sense and understanding and as a result, I understand that an action is immoral, why shouldn’t I be obligated to refrain from doing that act?

The US v New standard that LTC Head applied to LT Watada thus seems deeply problematic. It seems even more problematic given that there is a reasonable chance that the order to deploy to Iraq really is illegal.

(Note: Cross-posted at BlueNC)

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.

No, I’m not just trying to be clever. Okay, I am trying to be clever, but there’s a real point to the title. It’s the insider nickname for the Army War College. What’s it mean? Well, I’m sure that you’ll all be surprised to discover that VUCA is an acronym (what is it with the Army and its fondness for acronyms, anyway?). VUCA stands for Volatility, Uncertainty, Complexity, and Ambiguity. The AWC (damn, now I’m doing it, too) uses this as a model, developed by some very smart social scientists, for viewing the world. As you might expect, the Army sees VUCA as something of a bad thing; the central mission of the War College, then, is to teach senior officers how to reduce VUCA, how to strive for stability, certainty, simplicity, and clarity.

Now I know that I’m sometimes critical of the Army’s attempts to shoehorn hugely complex issues into a nice, easy-to-remember acronym and then pretend as if everything is all solved. But in this case, VUCA strikes me as a pretty decent rule-of-thumb. Indeed, it seems to me that pretty much any sufficiently large entity (a state, a military, the market, a large business, a big university) will be fundamentally characterized by VUCA. And most of us do, in fact, spend our lives trying to find some way to reduce VUCA. What, after all, does a mutual fund manager do if not try to find some way to see through the volatility, uncertainty, complexity and ambiguity of the market so as to find the best investments?

There is, however, a drawback to this sort of quest. It’s possible to be blinded by one’s certainty, to be lulled by a false, over-simplified sort of clarity, to long for a stability that is ultimately crippling. Religious fundamentalism is one such example. Communist totalitarianism is another. Ethnic cleansing is a third. And no, in offering these examples together, I’m not trying to say that all are equivalent wrongs. My point is merely that each is driven by the same sort of over-reaction to VUCA.

There is, however, another option, and it is, at first blush, pretty counter-intuitive. That option requires accepting that, in civil society, there is much that is volatile, uncertain, complex and ambiguous, and designing institutions that reflect that sort of uncertainty and complexity and ambiguity. It’s very difficult to know, for instance, whether too much violence on TV really does harm children, whether abortion really is murder, whether homosexuality is a good thing or a bad thing on balance, or whether smoking pot is better or worse for you than eating a bacon double cheeseburger. People genuinely disagree about such things. Worse still, in some cases, there isn’t any way to empirically demonstrate a conclusive answer. (How, for instance, could one ever answer that last question comparing pot to the bacon double cheeseburger? The answer will entirely depend upon what kinds of things we think actually count as making something worse. And that isn’t the sort of question about which we can get an empirical answer.)

So what do we do in the face of genuine, possibly irreducible VUCA? We could retreat to an artificial certainty (Marx says this is true and those who don’t agree are just blinded by their bourgeois capitalist worldview). Or, and this is a harder option, we could simply agree to disagree. We could have states that remain neutral on questions about which there is genuine VUCA.

That’s an option that doesn’t appeal much to some people. At least one (in)famous study shows a correlation between liberalism and a high tolerance for ambiguity and uncertainty. (Idle speculation warning: Could this be why Army officers tend to be far more conservative than a the civilian population? If the Army stresses overcoming VUCA, then people who are inclined toward political conservatism will likely find the Army far more hospitable.)

There’s obviously far more to be said here. Liberals can (and often do) complain that conservatives are insensitive to the extent to which some ambiguity and uncertainty can’t (and perhaps shouldn’t) be reduced. Conservatives can (and often do) complain that liberals fail to understand that some ambiguity and uncertainty can (and perhaps should) be reduced. Conservatives who rail against equal rights for homosexuals are guilty of oversimplifying the world. Liberals who excuse terrorism are guilty of undersimplifying it.

I’m not really sure what to make of this. Just some random observations here. Maybe I’ll think more about what they mean in a later post. Unless I get distracted by something shiny.

It’s the oft-forgotten third leg of just war theory. But it’s a pretty essential part, nonetheless. The essential jus post bellum claim is that a necessary condition for waging a just war is that there be a just resolution to the war. That is, for a war to count as just it must be the case that

1. The war be fought for a just cause (i.e., in defense of aggression or in defense of genuine humanitarian concerns)
2. Winning the war must not require resorting to unjust means (i.e., the war must be fought justly)
3. It must be possible to create a just peace after the war’s conclusion (i.e., no reparations that bankrupt a nation, no forced regime changes except in truly drastic situations)

This is a point that one-time supporters of the war in Iraq seem to forget pretty frequently. Actually, it’s an argument that I’ve made myself a number of times. During my time working in D.C., I had this discussion with a lot of folks around the office. (Hardly surprising; we were trying to get Democrats elected to office, so figuring out a good position on the Iraq war had some value.) I ended up changing my mind on this point, largely due to the arguments with our creative director. Since I’m still not sure how much of this shit is covered by the NDA I signed, I’m going to leave him nameless. Sorry, dude. Not that you read this or anything, but still.

Anyway, I typically presented the whole, “We broke it, so we’ve an obligation to fix it” line. It’s the same sort of argument that one of Andrew Sullivan’s commenters made today:

I’m strongly anti-war, but I still wish Petraeus true success, sincerely – because I presume that the key existential goal now is to “pacify” a spot of active, pure hell on earth that we are partially responsible for. That pacification may include using deadly force and would be morally justified on just war grounds. The situation now is one in which not to act at all is immoral

My boss conceded the point. But, he said, if it isn’t actually possible to make things any better, then wouldn’t it be immoral to stay? So simple. Yet he’s exactly right; that’s one of the demands of jus post bellum. It’s a point that I had totally missed. It’s the same point that Andrew’s commenter misses, and that Andrew himself misses. Yes, Iraq is a mess. Yes, we created much of that mess. Yes, it would be a prima facie good thing to fix the mess that we’ve created, both because we created it and because it really is “a spot of active, pure hell on earth.”

The problem, though, is that it seems increasingly likely that our presence, far from making Iraq less hellish, is actually making things worse. If that really is the case, then our waging a war to “pacify” Iraq fails the just war test. Contra Andrew’s commenter, the use of deadly force is not at all morally justified, and the decision not to act might very well be exactly the right one. Indeed, the commenter seems to realize this position, insofar as he suggests that perhaps letting the Iraqis have their civil war may be just as moral as trying to put the place back together. But this, I submit, may not go far enough. If civil war is inevitable either way, then our staying merely prolongs the misery.

We seem to have run out of good options in Iraq. Now the issue is choosing from among the least bad ones.