In modern democracies, soldiers remain citizens when they enlist. As such, they retain the rights to vote and express their political views. However, they are also expected (and legally bound) to act in accord with the rules governing expressing their opinions as members of the military. Of course, this is also true of almost all jobs. To use an example, while I surrendered no rights when I became a professor, I am obligated to regulate what I say in my official capacity. I cannot, for example, spend class time campaigning for Obama or support political candidates by saying that they have been endorsed by Florida A&M University because I endorse them.
The matter of the rights of soldiers to express their political views has gained attention with the incident involving sergeant Gary Stein. Stein created an Armed Forces Tea Party page on Facebook back in 2010 and posted a comment on the site saying, roughly, “I say screw Obama. I will not follow orders given by him to me.” As might be imagined, this seems to be a violation of Article 134 of the Uniform Code of Military Justice in regards to things that are “prejudicial to good order and discipline.” In reply, Stein said that he meant that he will not follow an illegal order, which is quite another matter.
On 3/22/2012 I saw CNN interview with Sergeant Stein in which he made this same point. The person conducting the interview attempted to criticize him on the assumption that soldiers are required to obey orders. Stein was right to point out that military personnel can refuse illegal orders and gave the example of being ordered to engage in theft. As he noted, he could correctly refuse such an order. As such, saying that he would refuse an illegal order would not, on the face of it, seem to violate Article 134 and would, in fact, be the right thing for a soldier to say.
The discussion then turned to the matter of whether or not a sergeant should be interpreting whether an order is unlawful or not. Stein’s view is that he has the right to do so, based on his being an American citizen and he also contended that his oath to uphold the constitution and defend the United States would require him to do so. This, of course, raises the classic issue of whether a person should or should not obey the state when s/he regards the command as immoral or unlawful. This matter is complicated a bit when the person in question is under special conditions that would seem to favor obedience (such as being in the military).
On the one hand, a stock answer is that (as the interviewer seemed to be implying) such decisions are not to be made by mere sergeants and that the order should be obeyed. This does have considerable appeal. After all, if soldiers could simply disobey orders because they believed the orders to be unlawful or immoral, then this would be a serious threat to “good order and discipline.” A chain of command exists for a good reason-namely so that orders are carried out. To use an analogy, if I decided that I disagree with the system of grades and refused to assign grades to my students while posting snarky Facebook comments about university personnel, it would certainly be legitimate for the university to compel me to act in accord with the policy of assigning grades or to fire me if I refused. If professors simply did whatever in regards to grades, that would have a significant negative impact on the university. Likewise, soldiers who just disobey orders or sow dissension can be justly disciplined.
On the other hand, another stock answer is that a soldier does need to make such decisions and that the soldier has the right to do so. After all, the soldier is accountable for his/her actions and the defense “I was just following orders” carries little in the way of legal or moral weight. As such, the soldier must have the right to decide since s/he will be held accountable for the actions taken on the basis of orders. There is also the classic point, made by Thoreau, that even soldiers should follow their conscience rather than simply obey as if they were automatons. Soldiers are still citizens and still moral agents-putting on a uniform does not rob them of either of these statuses. There is also the fact that the right to disobey can help prevent or avoid wickedness, such as war crimes. To use an analogy, if I was told to pass a student who never attended my class because s/he was a star athlete, then I would be in the right to disobey and to bring this matter to the attention of others. Likewise, soldiers who are told to do what is unlawful or immoral have the right to refuse and bring this matter to the attention of others.
As such, the obvious conclusion has been reached: there are good reasons to enforce obedience and good reason to allow disobedience. The challenge would seem to be to balance the need for both obedience and dissent in a way that creates the most good (and avoids the most evil).