The Moral and Legal Case for Conscientious Objection
The United States Armed Forces is the most wasteful, predatory and genocidal organization in the world. It should be forcefully opposed and brought under control at any cost.
Though more than a million Iraqis and Afghans died under their respective occupations, the number of US troops who have even been charged in connection with civilian deaths is infinitesimal, and the number who ultimately serve any jail time is smaller still. This is a reflection of several factors: the oft-relaxed rules of engagement, the reticence of commanders to investigate and prosecute the murder of civilians, the ease with which drop weapons and other methods of cover-up can be undertaken, the inability of the military justice system to function due to a strictly-enforced code of silence among the enlisted, and most troublingly, a general disrespect for civilian lives and livelihood, most pointedly reflected in a 2007 poll by the Office of the Surgeon General of the US Army Medical Command. This survey found that just 40% of Marines and 55% of soldiers would report a unit member for killing an innocent noncombatant. The same poll found even lower numbers for the acts of stealing from civilians, mistreating them, and damaging their property, as well as for generally violating the rules of engagement. Worse, the poll only reflects the enlisted who would admit their derelictions; the real figure is certainly lower.
This startling data has been buttressed by the testimony of a number of veterans, notably by those in the Winter Soldier movement. Sponsored by Iraq Veterans Against the War, the Winter Soldier testimonials are well-corroborated accounts of violent and unprovoked attacks in which dozens to hundreds of civilians have perished. In the wake of Wikileaks’ 2010 release of Apache footage depicting one such massacre, troops such as Ethan McCord (a member of the unit depicted in the footage) have come forward, claiming variously that they were told to kill any civilian nearby when an IED goes off, that civilians speaking on phones or holding shovels were valid targets, that any Iraqi thought to be associated with the insurgency could be killed, and that commanders would cover for them if they committed murder or abused prisoners. By our warfighers’ own admission, it appears that the only unique aspect of the relaxed, cheered-on 2007 New Baghdad massacre is that it has since seen the light of day thanks to one conscientious whistleblower.
In this anything-goes climate, abusive troops can operate with impunity, and the civilians suffer. It is no surprise that violent troops, from Matthew McCabe (acquitted of the crime of assaulting a detainee despite eye-witness testimony incriminating him) to Jose Luis Nazario, Jr. (tried as a civilian for his role in the deaths of four Iraqis yet acquitted due to lack of evidence and the refusal of his squadmates to testify) to Michael Hensley (who admits that he ordered a member of his squad to kill a civilian and then place an AK-47 on his body; this same underling later claimed to have no memory of the incident, and had earlier communicated to Hensley that he would protect him) to the Haditha butchers (none of whom ever served any time despite the conclusion of an official Pentagon investigation that the Marines deliberately killed a total of 24 unarmed civilians), have almost always gotten away with it. Many more cases of this type exist, and each calls into question the ability of the military to effectively police itself. More numerous still are officially-sanctioned incidents, such as the siege of Fallujah, in which the massacre of civilians and the damaging of municipal infrastructure was undertaken deliberately as part of a strategy of pacification and subjugation, what one American advisor in Baghdad, quoted by Seymour Hersh, called “Terrorism versus terrorism.” “We've got to scare the Iraqis into submission,” he said. In recent years, the failure to investigate air and drone strikes that often result in civilian casualties has not changed:
Human rights groups were not the only ones sounding the alarm. C.I.A. officers working in Syria grew so alarmed over the task force’s strikes that agents reported their concern to the Department of Defense inspector general, which investigated the claims and produced a report. The results of that report are top secret, but the former task force officer, who reviewed the report, said the C.I.A. officers alleged that in about 10 incidents, the secretive task force hit targets knowing civilians would be killed.
The former officer said the report determined that all the strikes were legal.
This has been the general tenor of the occupying force for some time: the US military kills civilians, covers up their actions as best they can, offers a perfunctory apology and promise to amend its ways if found out, and then continues killing civilians, in the process revealing its true goal of subjugation (the cruelty is the point). Aerial bombardment, night raids (increased in 2010 by Commander of US and ISAF forces in Afghanistan Stanley McChrystal despite his statement that such raids make Afghans feel “deeply violated and dishonored, making winning their support that much more difficult”), checkpoints (about which General McChrystal famously said, “We’ve shot an amazing number of people and killed a number and, to my knowledge, none has proven to have been a real threat to the force.”), White Phosphorus and cluster munitions, and the heavy use of unaccountable contractors and glorified death squads have all been the subject of criticism for their lethality to civilians and in turn the focus of military and governmental crocodile tears. In 2019, one of the few monstrous troops to suffer even a minor punishment for his crimes, Eddie Gallagher, was granted a pardon by then-President Donald Trump:
In the interviews, conducted by navy investigators looking into Gallagher’s conduct during a tour of duty in Iraq in 2017, fellow platoon members told of a ruthless leader who stabbed the captive to death for no reason then forced his troops to pose for a photograph with the corpse.
At his court martial, Gallagher was acquitted of murder but demoted in rank for the lesser charge of posing with the body – a decision Trump reversed.
In a lengthy criminal investigation report, the navy detectives laid out other allegations against Gallagher, including shooting a schoolgirl and elderly man from a sniper’s roost. Members of Alpha Platoon’s Seal Team 7 alarmed by their leader’s conduct said they were initially shut down by military chiefs when they first spoke up, and told their own careers would suffer if they continued to talk about it.
Eventually, the Navy Criminal Investigative Service (NCIS) began an inquiry and the platoon members were called to give evidence.
“The guy is freaking evil,” special operator first class Craig Miller, one of the platoon’s most experienced members, told investigators in sometimes tearful testimony. “I think Eddie was proud of it, and that was, like, part of it for him.”
Instead of policing its own or listening to whistle-blowers, the US military punishes those who speak out against its abuses time and time again:
On July 27, a federal district court judge in Alexandria, Virginia, sentenced former U.S. Air Force intelligence analyst Daniel Hale to 45 months in prison for revealing evidence of U.S. war crimes.
In 2015, Hale, whose job involved identifying targets for drone strikes, provided journalist Jeremy Scahill with secret military documents and slides that exposed shocking details about the U.S. drone program. Hale’s revelations became the basis of “The Drone Papers,” which was published on October 15, 2015, by The Intercept.
Although the government admitted it had no evidence that direct harm resulted from Hale’s revelations, in 2019, the Trump administration charged Hale with four counts of violating the Espionage Act and one count of theft of government property. Facing up to 50 years in prison, Hale pled guilty to one count that carries a maximum sentence of 10 years.
The leaked documents disclosed the “kill chain” the Obama administration used to determine whom to target. Countless civilians were killed using “signals intelligence” in undeclared war zones: Targeting decisions were made by following cell phones that might not be carried by suspected terrorists. The Drone Papers divulged that half of the intelligence used to identify potential targets in Yemen and Somalia was based on signals intelligence.
During one five-month period during January 2012 to February 2013, nearly 90 percent of those killed by drone strikes were not the intended target, according to The Drone Papers. But civilian bystanders were nonetheless classified as “enemies killed in action” unless proven otherwise.
The Pentagon itself agrees that there is a problem, but does nothing about it:
From fiscal 2013 through 2018 (the most recent reporting period), the IG determined that 350 Defense Department officials — most of them in the military services — retaliated against or sought to intimidate 195 whistleblowers.
In each of those cases, the IG substantiated both the allegation of wrongdoing and the report of retaliation for having disclosed it. But only one of the officials who tried to exact retribution on a whistleblower was fired.
Nearly half the retaliators’ cases are still pending within the department, though some are years old. In dozens of instances when action was taken, the punishment was just a verbal or written admonition. In 57 cases, the services or agencies opted to take no punitive action against the documented offender.
Meanwhile, about 85 percent of the people who bravely came forward to try to right a wrong — only to be punished professionally and personally for doing so — had still not gotten any remedy, the IG’s figures show.
The military also cannot police its own with respect to sexual abuse and white supremacy.
If we cannot expect the military to police itself (the legal and moral reason it has been granted the privilege of doing so), and the civilian authority is unable or unwilling to do it, then the policing falls on our shoulders, insofar as we are able to safely and willingly do so. And indeed, there are some encouraging signs that disruption of US military facilities with the intent of stopping a greater crime could be seen as legally understandable as well as moral.
In 2007, for example, two English protesters were acquitted of all charges relating to a 2003 break-in of a Royal Air Force base in order to sabotage US bombers. Toby Olditch and Philip Pritchard successfully argued to a crown court that the planes, which carried cluster munitions and depleted uranium rounds (both noted killers of civilians), would have been used to commit war crimes in Iraq. There is legal precedent in the US as well: in 1987, a group of protestors including Abbie Hoffman and Amy Carter were acquitted of trespassing and disorderly conduct, charges stemming from their attempted disruption of CIA recruitment on the University of Massachusetts campus. The jury found their actions to be protected civil disobedience, undertaken to thwart the commission of greater CIA crimes in Latin America and elsewhere (the US Military is involved in much greater crimes than the CIA):
The protesters, who contended the university should have banned CIA recuiters under a school policy that allows only law-abiding groups on campus, said they acted in the belief that CIA actions overseas could bring the United States to war.
The defense called more than a dozen witnesses from around the country to testify about alleged wrongdoing by the CIA, including the mining of Nicaraguan harbors and the financing of alleged atrocities by anti-Sandinista rebels.
Juror Ann Gaffney, 64, said the jury was swayed by the argument that the protesters were breaking minor laws to prevent graver wrongdoings by the CIA.
″A lot of us were not aware of what the CIA was into. It was shocking and alarming, the things we heard from witnesses,″ she said.
She also said the jurors were impressed by such defense witnesses as Pentagon Papers-leaker Daniel Ellsberg, former U.S. Attorney General Ramsey Clark and former Contra leader Edgar Chamorro.
Non-violent sabotage should be treated no differently in the eyes of the law to a well-organized worker strike or a sit-in style protest, such as the one recently undertaken by more than 1,000 climate scientists, dozens of whom were arrested:
Warning that the IPCC report's language was watered down at the behest of governments unwilling to rapidly phase out fossil fuels, scientists and their allies took that message further during their direct actions on Wednesday, operating under the slogan "1.5°C is dead, climate revolution now!"
"I'm taking action because I feel desperate," said U.S. climate scientist Peter Kalmus, who along with several others locked himself to the front door of a JPMorgan Chase building in Los Angeles. A recent report found that the financial giant is the biggest private funder of oil and gas initiatives in the world.
To these scientists, the importance of the message is worth breaking the law. In doing so, they are very likely saving lives, in much the same way that a conscientious objector does so by refusing to take part in an illegal war. Unlike the climate scientists being arrested for their protests though, the troops have a much greater responsibility for the crimes being committed—as something much more than a detached observer, their direct participation requires a greater reparation, and this must necessarily go beyond mere desertion.
In a more general philosophical sense, the case for more forceful conscientious objection can be found in a widely-held consensual value: that of self-defense.
A hypothetical example: a worker at a munitions factory, now beginning to wonder about the morality of creating weapons for use in two invasive foreign wars, inquires about the proportion of civilian and military deaths that might be caused by a particular bomb he has created. His superior reveals that in Iraq, casualties from US bombing raids are roughly 44% women and 39% children; at least 85% of those killed are thus highly likely to have been uninvolved in any armed conflict. This realization would require at the very least the worker’s conscientious objection and immediate refusal to continue work on the bombs. But the bomb-maker is in a unique position to go farther; his proximity to the engines of destruction affords him relatively safe access to the means of their undoing. In order to make up for his relatively greater hand in the unnecessary deaths of Iraqis and Afghans, he must decommission as much machinery as he is safely and reasonably able to disrupt, so long as doing so does not endanger the lives of his coworkers.
This is not, in fact, hypothetical: US bombs are overwhelmingly more lethal to women and children, according to a 2009 Iraq Body Count survey. If the victim of any single US bomb is overwhelmingly likely to be a noncombatant, there is no moral or legal reason not to dismantle it, and then the factory which produces it. Reflecting this high probability, more than half of all child deaths in Afghanistan in 2009 were caused by NATO forces, and this figure did not become more palatable in the intervening years. If the two English saboteurs were legally justified in delaying the utilization of US cluster munitions, then any passing Samaritan would be likewise justified in taking a non-violent action to halt training or manufacturing in any stateside military installation or factory.
A crucial dimension of self-defense is proportionality, the moral requirement to pursue the least violent method of resolving conflict before any others are attempted. This generally accepted principle is simple: if one can plausibly disarm an attacker, then one should do so rather than harm them preemptively. It is in fact this aspect of self-defense which empowers the use of force against others who violate the rule—reactive violence loses its defensive attribute if it is not strictly necessary to preserve one’s life or the life of others, and only the previous consideration of less violent means can constitute a reasonable belief that force is justified (exhaustion). Applying this to the US military, any saboteur can note that protests against the Iraq War set a number of turnout records, but were ignored and downplayed in the US media. Protests, even large scale ones, are simply not sufficient to thwart wars of aggression, let alone the routine killing of civilians in the course of waging them. In the final analysis, we must ask: who are we to stand by peacefully and ineffectively in the streets holding picket signs while Iraqi, Afghan, Yemeni, and Syrian civilians are dying at the hands of US forces and their allies?
Innocent civilians make up the vast majority of casualties in the present wars. To argue the immorality of sabotage undertaken with the goal of preventing such civilian slaughter is to place human lives below the very convenience of their US killers. It is to argue that a murderer’s knife should remain long and lethal, because breaking it would constitute grave property harm.
Even the rationale of the military itself can be turned around to offer a self-sufficient case for using force against its own machinations. For example, the case for torture offered by the Bush Department of Justice: this legal rationale was transparently thin, compiled with incomplete information (and ignorant of the fact that the torture techniques were derived from training manuals which prepared soldiers for the possibility of their own torture by other forces, manuals which note explicitly that these methods produce many false confessions), and relied upon naked assertions that legality is immaterial if charges are never pressed, essentially telling the torturers “you will get away with this regardless, because no one will charge you.” Indeed, no one has charged the torturers or their enablers, and the Obama administration moved to prevent any legal action against them—likely because his own administration would have been caught up in any sufficiently wide-reaching legal proceeding. The Trump and Biden administrations have followed suit.
When pressed to defend this sloppy reasoning, Yoo (and Assistant Deputy Attorney General David Margolis, the Justice Department official who reversed an earlier OPR finding which held that Yoo’s poor judgment in the memos constituted professional misconduct) cited the post-September 11th panic as an excuse to relax the rules of engagement and set aside legal prohibition of torture with careless reasoning. Legal precedent now holds that one can play fast and loose with the law if a nebulous security concern can be created, even though the torture of mostly-innocent detainees produced no useful information, and several torturers admitted that they were told to manufacture a confession linking Iraq to al Qaeda. Thus the one aspect of state violence which could conceivably distinguish it from a citizen’s sabotage, its supposed legality, evaporates. The military (and US police) behave illegally frequently, but when the law itself becomes corrupted, even the instances in which they hide behind its aegis are no longer different from any other kind of extralegal action.
If we can torture innocent detainees delivered to us by bounty hunters in order to combat the trumped-up threat of terrorism, if we can excessively punish petty criminals in hellish jails in order maintain a nebulous crime deterrent, if we can disregard the law when panic sets in and continue to do so long after it has waned, if we can aid and abet corporations whose actions are currently killing millions of people through air pollution alone (and setting the stage for many millions more to die through climate change and environmental destruction)…why then can we not turn our attention to the torturers, the rape-enablers and wardens of America’s brutal, overcrowded prisons, the politicians who sanctioned violence and theft and got away with it, the corporate robber-barons and bankers who hold the poor hostage during economic downturns and use public funds to lobby the government and overpay executives (reinforcing the cycle of poverty which has claimed untold lives), the insurance giants who are nakedly pursuing greater profits at the expense of patients (tens of thousands of whom die each year due to lack of health insurance), or the polluters who endanger us all?
This is to say nothing of our foreign policy blowback, which also provides a self-defense rationale for altering our imperialistic foreign policy. Osama Bin Laden cited US involvement with Israel and the Muslim world as the casus belli for the September 11th attacks; years later, would-be Times Square bomber Faisal Shahzad echoed these points and added a criticism of US drone attacks in which hundreds of civilians have been killed. Anwar al-Awlaki, an American citizen killed by drone strike in Yemen in 2011 (with no attendant due process), was part of the greater jihad movement which mixed religious zealotry and indoctrination with coherent opposition to US foreign policy. To discount the actions of these men as the product of extremist indoctrination is to commit the grave error of forgetting that our actions have repercussions. And these repercussions, like the real outcome of our foreign policy, are felt by civilians.
In his 1944 Korematsu v. United States dissent, Justice Robert H. Jackson argued that the military was capable of making its own decisions and should not be subjected to the rulings of a civilian court (and neither should a civilian court be asked to approve its actions). Jackson later commented that he was aware of the danger of this precedent because it elevated the military over civilian authority:
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order (323 U.S. 214, 246) is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.
Jackson felt that the court of public opinion would be sufficient to reign in any military-judicial overextensions, but although public opinion has been at times set sharply against military action, it has continued to torture, invade, kill with impunity, collude, remove rights, and generally behave as a large organized street gang. What expression of public opinion is equal to the task of reigning in the military if even record-setting protests are to be marginalized and ignored by the corporate media? How can military justice exist as a concept if commanders and comrades are unwilling to enforce the rules (which are fluid to begin with)?
We must ask ourselves a troubling question: when a known killer begins eyeing a loaded weapon which has been carelessly left behind, what should a concerned party do? Allow the killer to reach and use the weapon to harm others, or knock it from their arm, even if doing so hurts or inconveniences them?
It must finally be noted that all humans, even violently immoral ones, are distinct from tanks, bombs, and guns. This remains true, despite the common excuse used to defend the participation of American soldiers in a war anyone can and should know is grossly immoral—that they know not what they do. Young Americans are indeed subjected to an intoxicating culture of soldier-worship and jingoistic propaganda, and recruiters have been caught lying to potential enlistees. But this is a case of ignorance being used to excuse evil, and can only be remedied by better education coupled with an emphatic rejection of that propaganda, and part of this necessarily entails the rejection of the soldier-as-hero myth. A mafia assassin who was brought up on gangster films which glorify the lifestyle is dangerously ignorant, and the same could be said of a soldier who has been subjected to romanticized accounts of war. In a previous essay I outlined and discredited all the common excuses offered up for the US military and its warfighters. There is no longer any good reason for US troops not to at least abandon their posts immediately, preferably disabling equipment in the process, even if doing so results in disciplinary action. This is the reasonable cost of their earlier transgressions and a conclusion that should have never been in doubt.
The factual humanity of US soldiers, which still exists despite their arguments otherwise, is paramount—it informs the rationale of conscientious objectors in the first place and must thus be taken as a self-sufficient reason to forego even well-intentioned attacks upon them. Attack their vehicles, their weapons, their equipment, their dignity, and their convenience, but never their bodies.