Reforming military obedience

Dr. Ellen Nohle's OpinioJuris essay, Reforming Military Obedience: Strengthening Vertical Checks on Trump's (Ab)use of War Powers, concludes:

Possible concerns that increasing soldiers’ legal privilege to refuse ultra vires orders would undermine a nation’s ability to defend itself militarily is belied by psychological research showing that soldiers fight primarily out of regard for their comrades and superiors, not out of a sense of legal compulsion . In fact, research on compliance with orders shows that ordinary people tend to err on the side of obedience rather than disobedience, even in the absence of a legal duty to obey. In light of that, the function of the law should be to help and incentivize soldiers to identify and challenge abuses of war powers, not punish those who have the moral courage to resist the potent socio-psychological pressures to comply with orders irrespective of their legality. 

Still, the redistribution of trust entailed by granting soldiers a right to disobey ultra vires orders will no doubt come up against some deep-rooted assumptions, and opposition to the proposal is to be expected. The assumption in the military has long been that trust must be distributed along the hierarchy of command. Absolute trust, in the form of decision-making power, is vested in the president as commander in chief, and subordinate commanders are trusted based on their relative position in the military hierarchy.  Although the military in many ways operates as a separate community, legally and socially, from the rest of society, the military’s existence and powers derive from the civilian government and its functions are defined by civilian-made laws and policies. The economy of trust in the military must therefore ultimately bend to the economy of trust in civilian society. A rule requiring absolute trust in the commander in chief is incompatible with the limited institutional trust, or decision-making powers, vested in the president as chief executive. If uncritical obedience has no place in a government ruled by law, then neither does it have a legitimate place in the government’s executive arm, the military.

Dr. Nohle is a senior legal advisor at the IHL Centre.