The Trees Matter, Too

I am rather pissed off at a former JAG's editorial/opinion piece originally appearing at the NYT.¹ Mr French — a former JAG — reaches some of the right conclusions. However, he does so by a fallacious reasoning pathway that fully undermines his conclusions and the desired result. His appreciation of the forest presumes that all of the trees therein are entirely suburdinate, identical, unthinking elements; this is rather ironic because he cited two counterexamples in his opinion piece. In short, he's too easy on commissioned officers because he doesn't understand what "commission" means. There's a lacuna in the JAG mindset (and, especially, the JAG mindset of the Army, the service in which French served) which, ironically enough, is illustrated directly by two chains of legal precedent that he cites in the body of his opinion piece: The circumstances of Lt² William Calley and the defendants at Nürnberg.³

Part of the problem here is that JAGs have (with some unusual-but-not-unheard-of exceptions) achieved their own commissions through a different path than is expected of line officers. They simply don't have the experience of actually implementing the tough calls, in the moment, with personal familiarity with the subordinates who will in most instances be actually pulling triggers. Further, due to their own duty structures, they have substantially less exposure to the immediate consequences of inconsistent orders and directives-not-qualifying-as-orders; similarly, they are insulated from the immediate and longer-term cultural and career consequences of even questioning such. Perhaps most relevant to French's piece, they have no clue about what actually maintaining "good order and discipline" in a combat or combat support unit (or even among REMFs) actually involves… or about how that can be impaired when there's perception among the enlisted personnel (and less-senior commissioned officers) that the officer(s) issuing the order to employ force are unthinking loyalist automatons, even in noncombat contexts.

Perhaps French's real conclusion, buried in the middle of the piece, is mostly valid for enlisted personnel.

In reality, junior officers and enlisted soldiers are often like the proverbial blind man feeling the elephant. We are given only partial information when we’re ordered to war. Our military couldn’t function if individual members adjudicated these questions themselves based on information gleaned from news reports or from their own incomplete review of the relevant intelligence.

Bluntly, this contradicts not just what line officers are trained and expected to understand, but the very passage from the (less-binding!) opinion in the Calley matter from the Court of Military Review that he quoted a few paragraphs above that passage. The obligation of a commissioned officer is to look at every order for its lawfulness under a nonlawyer's perception of what "a man of ordinary sense and understanding would, under the circumstances, know to be unlawful" — and when an order fails that test, obtain further guidance if possible and available but otherwise exercise the judgment demanded of commissioned officers and refuse to implement it. Calley failed that test, both personally and via directives he gave to soldiers under his leadership;⁴ any "man of ordinary sense and understanding" would have understood that encountering unresisting civilians means you can't shoot them until they individually resist. The Nürnberg defendants at all levels failed that test, both personally and via directives given to those under their leadership/command; any "man of ordinary sense and understanding" would have known that participating in the killing of unresisting children (to name only the most obvious instance) was unlawful.

In close calls and less-obvious circumstances that actually do turn upon what French refers to as "the often highly classified intelligence that presidents and senior leaders review when they issue orders to strike," it makes sense for the most junior personnel to rely upon a prior legal clearance in implementing those orders — so long as the circumstances remain less obvious. There's a line, though: The commission, which represents the "special trust and confidence" in the individual holding that commission, that changes what qualifies as "less obvious;" that expands the expected scope of "under the circumstances" from "there's adequate grounds to treat the target as containing combatants" to "collateral damage" to "information the immediately-responsible individual has that those policymaking authorities, at the level of abstraction required of policymaking authorities, do not." French's opinion piece gives at best lip service to that responsibility — a responsibility that, under centuries of the law of armed conflict, extends all the way down to the lowest commissioned personnel. It's precisely why post-Vietnam, commissions as line officers of the United States are extended only to those holding at least a bachelor's degree who are at least 21 years old: A presumption of wider worldview, greater perception, and honed judgment than even that of experienced enlisted personnel. Lt Calley's conduct demonstrates that Mistakes Were/Are Made — but that does not diminish the responsibility.

Another underlying failure of French's opinion piece arises because he conflates high-level, abstract responsibilities for ordering the use of military force by lower-level units with the immediate responsibilities of those looking through the gunsights, and affirming the current, immediate validity of what is in those gunsights as targets. Another historical example comes to mind: Flight 655.⁵ That wasn't about being "ordered to war," it was about interpreting higher-level orders in light of what a commissioned officer of ordinary sense and understanding would, under the circumstances known to that commissioned officer, know to be unlawful.

Ens/Lt/Capt/Maj/LtCmdr Ordinary Officer is not responsible for determining the lawfulness of the order to "go to war" against a properly-designated threat to national security.⁶ He or she is, however, responsible for determining the lawfulness of the second-level order to fire on a particular target, or class of targets — especially an order to destroy after incapacitation. French's piece elides the latter despite his citation of Calley and Nürnberg. That pisses me off and disserves the public in general; it also subtly insults the capability, integrity, and trust placed in nonpolicymaking line officers. <SARCASM> Bravo. </SARCASM>

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1. I read this at the Seattle Times, some time after its initial publication. Once again, assholes: If you aspire to be the "paper of record," you can't put a paywall between the "record" and the "public at large." Unless, that is, the only "public" that counts is that portion of the public that pays in advance for access to that record. And if that's the case: You're not actually "of record."
2. I refer to Calley as "Lt" or "Lieutenant" because relevant parts of the matter — and, in particular, relevant failures of judgment on both his part and the Army's training and evaluation elements — occurred while Calley was a Second Lieutenant (O-1, the lowest commissioned officer grade). Calley had been promoted to First Lieutenant, under the pre-1980 system, by the time he was referred to court-martial, so the case caption reads "1Lt." This would matter even more, under the post-1980 system, had it been a promotion from Captain to Major (or, in the Navy, Lieutenant (s.g.) to Lieutenant Commander; either way, O-3 to O-4). These are, perhaps, subtleties that don't matter… for this, particular, historical incident. The subject of French's opinion piece, however, is prospective, not retrospective, so at least a shadow of these distinctions is (or should be) apparent.
3. In a typical bit of Anglocentric linguistic imperialism, this city in southwest Germany is usually rendered as "Nuremberg," which manages to mangle both vowel and consonant sounds for no good reason. It also marks the last time that a sitting US Supreme Court justice actually practiced law — the chief US prosecutor was Robert Jackson, on leave from the Supreme Court.

   The various dramatizations of the proceedings and results — the only parts that most, and indeed too many, people know of — focus on the highest-level politicomilitary leaders and "associates" of the Third Reich. That's certainly defensible in terms of "narrative coherence," but it neglects all of the lower-level personnel who were prosecuted (and mostly convicted) in the various proceedings. That neglect takes attention away from Calley's failure: The Dienst ist dienst "defense" of blindly following orders.

4. Here, a perhaps hypertechnical objection — one that is reinforced by the Navy's continued misuse of "commander" as part of two officer grade names, and misuse of the word in job-title descriptions like "tank commander" and "aircraft commander." At the platoon/tank/aircraft level, the leader (even a commissioned officer) is not a commander, but a leader. Actual command, however, involves more than just giving orders and/or being the most-senior individual on site; that many of these distinctions are specifically legal, such as the authority to actually confine a servicemember for misconduct, is a seldom-considered irony when JAGs blithely discuss officer responsibilities.
5. Source chosen primarily because it's both readily available and lacks obvious conflicts of interest.
6. This gets extremely messy when that officer has direct personal knowledge that the asserted factual basis is false, or the use of military force has not been propertly designated and directed — let alone when there's a disjuncture between high-level policy and individual-munition-level explosions.