Obedience to Civilian Authority Is Dangerous Too

On May 9, Lawfare published my article, “A Politically Neutral Military Is Not Always Obedient.” In it, I argue that the meaning of military political neutrality has been misunderstood as prescribing absolute obedience to civilian authority. In truth, I argue, the duty to obey orders from civilian authority is not absolute; political neutrality actually prescribes disobedience in some extraordinary circumstances.

Kori Schake and Jason Smith have since written withering criticisms of my article. I’m grateful to them for taking the time to respond to me. The vehemence of their objections is indicative of the importance of the subject. I’m honored to be a part of this vital conversation with them.

But unfortunately, Schake and Smith never directly engage with my argument. They instead raise concerns about the risks of accepting my conclusion. Some of these concerns are legitimate, and I tried to mitigate them in my article.

Frustratingly, however, they never address my central point: There are risks to accepting that political neutrality requires absolute obedience. I willingly admit that there are risks to positions like mine. But they don’t admit that there are risks to positions like theirs.

So, let me try again to get them to confront the danger.

On the evening of Dec. 3, 2024, South Korean President Yoon Suk Yoel declared martial law. He asserted control over all media and dispatched the military to seize the National Assembly—the national legislature, which was controlled by the opposition—the National Election Commission, and the headquarters of the opposition party. It appears at least three generals were involved in the planning for this takeover.

Before the military could reach the National Assembly, legislators and concerned citizens gathered to block them. Rather than disperse in the face of armed soldiers wearing tactical gear, the civilians confronted them. In one iconic moment, a young legislator grabbed the barrel of a soldier’s rifle and shouted, “Shame on you!” According to prosecutors, President Yoon ordered the military to break into the building and open fire if necessary.

At this moment, the soldiers involved had a choice to make. They could either obey the orders of their duly elected president and continue the assault on their own national legislature, or they could disobey orders and refuse.

What did the law require? Military service members are legally bound to obey orders unless they are patently illegal. In South Korea, the president can declare martial law in certain circumstances and after following certain procedures. In retrospect, the president’s declaration did not meet all the requirements. Still, this would not have been known by typical soldiers that night, and the military did not have the time to conduct a legal review of the declaration. So, a case could be made that soldiers were legally bound to continue the attack on the National Assembly.

I insist that we (Schake and Smith included) face these kinds of terrible situations and ask what service members should do in them. There are important—though separate—questions about what kind of political structure is best suited to minimize the risk of these things coming about and what judges, legislators, and citizens should do if they occur. But, right now, I want to know what service members should do if things get this bad. I think this is an urgent question that the American military should be thinking about and that the ethics of it are distinctive. Let’s not change the subject.

My position is that the South Korean soldiers ordered to participate in the attack on their legislature were obligated to refuse. One reason for this is that the operation clearly violated the political neutrality of the military. The president was wielding the military as a political tool to eliminate his political opposition. In a free society, the military should not represent any political faction and should respect the basic structures of democracy. Even though the orders were not patently illegal, they were obviously politically partisan and destructive of the democratic order.

Many of the South Korean soldiers involved in the attack on the assembly on Dec. 3, 2024, seem to agree with me, at least to an extent. In another iconic scene, rather than continue the assault, special forces soldiers retreated, in some cases leaving their weapons and bowing in apology to the legislators.

I applaud these actions. However, my opponents (Schake and Smith included) must denounce them. Defenders of the traditional view of political neutrality would have to say the military should always obey civilian authority unless their orders are patently illegal. So, they would tell the South Korean soldiers that they should attack the National Assembly and overcome the civilians in their way using force. They would claim that obeying these orders protects the political neutrality of the military.

But this is preposterous. As I say in my article, this way of thinking is backward. We are talking about a case where obedience does not protect the political neutrality of the military; obedience would undermine political neutrality. This reveals why political neutrality must prescribe more than mere obedience to legal orders. There are some things that a politically neutral military just won’t do, even if the law doesn’t prohibit them. For my opponents, military political neutrality is a pact to allow the military to be used as a political weapon unless it’s clearly illegal. This is dangerous, especially in the current political climate.

So, views like Schake’s and Smith’s are risky and lead to absurd conclusions. I’d like to know if they are willing to bite these bullets or not. Only in this way will they directly address my argument.

Am I, as Schake and Smith claim, advocating military praetorianism—the idea that the military has a special responsibility to ensure the constitutional fidelity of the government? No. Saying that service members should disobey clearly anti-democratic orders is not saying that it is the military’s job to review the constitutionality of all government actions. That is the role of courts and, less directly, elected representatives and citizens. I am only saying that if these safeguards fail and the military is sent to attack civil society, service members need not always be bound to obey. My proposal is not intended as a structural “fix.” I am only talking about what service members should do in emergency situations, not proposing a new political order.

Also, I clearly say that if service members are to disobey, they should do so civilly by willingly submitting to punishment that is within the powers of authorities. This limits service member’s reactions to passive refusal and prohibits active interference with or a general rejection of civilian authority that might lead to a military coup.

However, I do admit that opening the window of disobedience at all carries the risk that it will be misused with potentially catastrophic outcomes. But I still don’t think the solution is simply to close the window. Doing so is morally wrong—there really are times when service members should disobey orders on grounds of political neutrality—and increases the risk that the military will be politically weaponized against the political order it is supposed to protect.

Am I, as Smith claims, an “elitist” who lacks faith in the American people and the American system? This is an ad hominem attack that aims to change the subject. I will simply say that if you can survey the American political scene today and conclude there is no danger of the civilian commander in chief using the military as a partisan weapon to attack his political opposition and consolidate his power (while not doing anything obviously illegal), then you aren’t looking closely enough.

Am I, as Smith claims, too vague about what circumstances permit disobedience? Perhaps, yes. I tried to give some specifics, but my focus was on the more theoretical point about the meaning of military political neutrality. I accept responsibility to provide clearer guidance in the future.

Nevertheless, ethics itself is difficult. There are a lot of gray areas. I cannot be expected to make it black and white. If you accept my conclusion that there are some instances when service members are obligated to disobey legal orders on grounds of political neutrality—as in South Korea last December—then you admit that there is a line between legal orders that ought to be followed and those that ought not to be followed. It’s not my fault if that line is hard to define. That is a problem with reality, not a result of my supposed recklessness.

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Schake and Smith’s criticisms of me mostly beg the question. Though they raise some legitimate concerns about the dangers of accepting views like mine, they never face up to the dangers of views like theirs. This is such a vital issue for service members to be thinking about today. I hope we can have a richer debate about it