At the luncheon of the National Press Club on Feb. 17, 2006, the chairman of the Joint Chiefs of Staff, Gen. Peter Pace, was asked by his interviewer, John Donnelly: “Should people in the U.S. military disobey orders that they believe are illegal?” Pace’s response:
Thank you, Gen. Pace. Donnelly didn’t follow up on his question, so I will, trusting that your answers to my questions will represent your core beliefs, stated on earlier occasions. Gen. Pace, how does your Feb. 17 statement apply to a situation in which troops are ordered to use certain weapons?
Pace: “[T]hey will be held accountable for the decisions they make. So they should in fact not obey the illegal and immoral orders to use weapons of mass destruction.”
Now what about the commanders that receive orders from their superiors?
Pace: “I believe that a lot of the commanders, in fact, do recognize that they do have a free choice in this, that they should not execute orders that are illegal and immoral, such as any order to use any kind of a weapon of mass destruction.”
But aren’t commanders supposed to follow orders from their superiors, including the president and the secretary of defense?
Pace: “They can still not commit crimes against humanity. They can still not execute any kinds of orders that might tell them to use weapons of mass destruction.”
And will these choices affect their future?
Pace: “[T]hey still have very clear choices to make, and their choices will have major impact, both on the troops who look to them for leadership right now and on their own personal fate when this is all over.”
And Gen. Pace, do you trust U.S. servicemen and women to do the right thing?
Pace: “I think that there are Iraqi soldiers out there who know what is right and who will in fact disobey illegal and immoral orders.”
Oops, wrong soldiers. Nonetheless, no one should doubt that if Pace trusts Iraqi soldiers to do the right thing, he will trust American soldiers to do the right thing.
Conclusion: The chairman of the Joints Chief of Staff has warned everybody in uniform that if they execute an illegal or immoral order or they instruct their subordinates to execute an illegal and immoral order involving the use of any kind of weapon of mass destruction, they are derelict in their “absolute responsibility,” and consequently fully responsible for the “crimes against humanity” resulting from their choice. You obey your orders at your own risk. This includes every soldier and commander in the U.S. armed forces. It includes you, Gen. John Abizaid. Thank you, Gen. Pace.
The Good, the Bad, and the Ugly
Pace is one of the good ones. He has a clear moral compass that tells him what is right and what is criminal. That is the good news. The bad news is, Pace has no executive authority over combatant forces, as established in the Goldwater-Nichols Act: he merely plays an advisory role.
Operational control flows from the president and the secretary of defense directly to the commanders of the Unified Combatant Commands. Gen. Abizaid is CENTCOM’s (Central Command’s) commander, with jurisdiction over the Middle East region. Abizaid is one of the bad ones.
I don’t know Abizaid personally. He may be a good family man and care for his pets. But he has stated, “Why the Iranians would want to move against us in an overt manner that would cause us to use our air or naval power against them would be beyond me,” and in the same breath, “If you ever even contemplate our nuclear capability, it should give everybody the clear understanding that there is no power that can match the United States militarily.”
Abizaid is bad not necessarily because he is evil but because he is ignorant. He was born six years after Hiroshima, and in his purely military education and rapidly rising military career there may have been little or no time to get educated on the great dangers of nuclear war. As geographic combatant commander in the Persian Gulf region, he is the designated commander to “request presidential approval for use of nuclear weapons for a variety of conditions” that are likely to apply to the Iran scenario.
Gen. James E. Cartwright, head of U.S. Strategic Command, is another bad one. He is in charge of “combating weapons of mass destruction” with our “weapons of mass destruction,” whose scope “broadened considerably” following the 2001 Nuclear Posture Review. Cartwright promises to “provide a range of options, both nuclear and non-nuclear, relevant to the threat and military operations” [.pdf] and to “offer the combatant commander greater situational awareness and more options than originally thought available.” There is no indication that he fathoms that there is a difference between nuclear and non-nuclear weapons.
Abizaid and Cartwright will get their orders from the ugly ones at the top: Bush , , Cheney , , Rumsfeld , , , with the advice of the other “nuclear warriors” , . Cartwright, Abizaid, and everyone below them should listen to Pace: “It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral.”
Are Nuclear Weapons Illegal or Immoral?There should be no doubt in anyone’s mind that nuclear weapons are the WMD par excellence , , . What about low-yield nuclear weapons used against underground facilities [.pdf]? Nuclear-weapons advocates tout the benefits of such weapons as being militarily effective, causing “reduced collateral damage” (RCD), and increasing the “flexibility of nuclear strike forces.” There is, however, no sharp line dividing small nuclear weapons from large ones, or RCD from non-RCD. Once any nuclear weapon is used, the door is wide open for the use of all nuclear weapons.
Addressing the legal status of the threat and use of nuclear weapons, the International Court of Justice (ICJ) determined in 1996 that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” The United States submitted a dissenting opinion, arguing that “there is no general prohibition in conventional or customary international law on the threat or use of nuclear weapons [.pdf].” However, the U.S. is just one of the 191 member states of the United Nations, while the ICJ is the principal judicial organ of the United Nations. It has delivered 92 judgments, 21 of which involved the United States, and the U.S. as a member state of the United Nations recognizes its jurisdiction and judgments.
Respected legal scholars ,  argue that the ICJ statement, which was issued at the request of the UN General Assembly, has legal validity  [.pdf], . Furthermore, the U.S. issued a “negative security assurance” [.pdf] to the UN in 1995 promising not to use nuclear weapons against non-nuclear-weapon signatories of the NPT, which it can be argued is independently legally binding , . Robert McNamara, U.S. secretary of state 1961-1968, states that the U.S. reliance on nuclear weapons as a foreign-policy tool is “immoral, illegal and dreadfully dangerous.”
The conviction that nuclear weapons are immoral is shared by most human beings , , , because such weapons cause an immense amount of indiscriminate destruction. It is obvious to most rational people that once the nuclear genie is out of the bottle, there is no return. No matter how small the next nuclear weapon used is, there is no line dividing small nuclear weapons from large ones, and escalation can rapidly lead to loss of life in the millions. Therefore the fact that a small nuclear weapon would cause a limited amount of destruction does not exclude “low-yield” or earth-penetrating nuclear weapons directed against facilities from the category of WMD, and hence from the category of illegal and immoral weapons.
There should be no doubt in anybody’s mind that when Pace refers to “any kind of a weapon of mass destruction” as being illegal and immoral, he includes all nuclear weapons, and that if American servicemen and women consider orders regarding nuclear weapons illegal or immoral and act accordingly, the vast majority of the country will stand behind them and support them.
What Are Service Members’ Responsibilities?
If you believe that nuclear weapons are illegal or immoral or both, which orders concerning nuclear weapons are illegal or immoral and should be disobeyed?
A natural answer is that any order that could lead with reasonable probability to the use of nuclear weapons should be disobeyed. Here it becomes important to consider the context: there is a set of conditions in place that makes the use of nuclear weapons highly likely if a military confrontation with Iran erupts , , . Given those conditions, it can be argued that any order involving an attack on Iran, even with conventional weapons, is immoral because it is likely to lead to the use of nuclear weapons, and, that any order concerning deployment of tactical nuclear weapons [.pdf] in the Persian Gulf region is illegal and immoral because it makes preparations for the purpose of committing an illegal and immoral act. The aircraft pilot who actually pushes the bomb-release button that drops the B61-11 on an Iranian facility is not the only one who will have obeyed illegal and immoral orders.
Beyond the service member’s absolute responsibility to disobey illegal or immoral orders, it is also arguably his/her responsibility to discourage and even prevent others from following illegal or immoral orders. In connection with prisoner abuse, Pace stated, “It is absolutely the responsibility of every U.S. service member, if they see inhumane treatment being conducted, to intervene to stop it.” When his own boss, Donald Rumsfeld, contradicted him, “But I don’t think you mean they have an obligation to physically stop it; it’s to report it,” Pace stuck to his guns, responding, “If they are physically present when inhumane treatment is taking place, sir, they have an obligation to try to stop it.” And indeed, the Pentagon later confirmed that Pace’s statement, not Rumsfeld’s, was the correct one.
Similarly, it is a logical conclusion that if a U.S. service member has an absolute responsibility to disobey illegal or immoral orders concerning weapons of mass destruction, he/she would also have an obligation to try to stop others from following such orders. For example, a service member witnessing the deployment of tactical nuclear weapons [.pdf], even if he/she is not directly involved in the action, would have a moral responsibility to act to try to stop it. Actions that one should contemplate to stop others from following illegal or immoral orders could involve persuasion, whistleblowing, and even physical intervention.
Even Rumsfeld has urged men and women in uniform (albeit Iraqi ones) to disobey orders to use weapons of mass destruction, and has stated that “it will be no excuse to say: I was just following orders.” Take these urgings to heart.
Consequences for People in Uniform
Deciding whether an order is illegal and/or immoral can be difficult. Yet that is not an argument in favor of obeying orders, because obeying illegal or immoral orders is a choice that has consequences. The following principles of the Nuremberg tribunal are relevant:
- “I. Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.”
- “IV. The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”
- “VII. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.”
In the Nuremberg trials, 207 defendants were tried and 161 found guilty of at least one charge. Among the charges listed in Principle VI are “waging of a war of aggression,” “wanton destruction not justified by military necessity,” “committing acts of devastation,” and “violations of the laws or customs of war.” High- and low-ranking government officials, senior and junior commanding officers were tried and convicted.
Could American service members face such charges in the aftermath of nuclear attack on Iran? You be the judge. The B61-11 nuclear earth penetrator is deployed [.pdf] but has never been tested. Its effect could be much larger than predicted, as has happened in other cases. Predictions of the level of radioactive fallout are highly uncertain, as they depend on weather conditions and wind patterns. According to a 2005 study by the National Academy of Sciences, “the estimated number of casualties ranges over four orders of magnitude from hundreds to over a million depending on the combination of assumptions used.” And the long-term health effects over periods of years or decades are even more difficult to estimate.
Let us not forget that the German government in the period 1933-1945 did not consider illegal many actions, which brings us to Principle II:
“The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.”
Consequences for Civilian Officials
Principle III of the Nuremberg tribunal states:
“The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.”
Many high-ranking government officials were indicted and found guilty in the Nuremberg trials. These included the deputy head of state, the minister of armaments, the minister of foreign affairs, the chief of the High Command of the Armed Forces (OKW) (who translated the head of state’s ideas into military orders), the state secretary in the Foreign Office, the chief of intelligence, the state secretary in the Ministry of Interior, the chief of the Planning Office in the Armaments Ministry, members of the Ministry of Justice, and many others.
Could Cheney, Rumsfeld, Hadley, Joseph, Cambone, Brooks, Crouch, Bolton, and others in the administration face a similar fate? Principle VI of the Nuremberg tribunal includes as a punishable crime “participation in a common plan or conspiracy” to commit proscribed acts. Those government officials have in common that they advocate aggressive nuclear policies and promote the development of new and more usable nuclear weapons. In their role as decision-makers, planners, and advisers to decision-makers, they will be culpable if the U.S. uses nuclear weapons against Iran.
The United States’ use of nuclear weapons against Iran, even small ones, could easily lead to escalation of the conflict and to the use of larger nuclear weapons, and even to the possible involvement of other nuclear weapon states. It could result in hundreds of thousands, even millions, of deaths. The American people have not been asked whether they support courses of action with such potential consequences. They will hold government officials that play a role in these events responsible for their actions. So will the rest of the world.
The Morning After
Judgment and punishment may not come immediately. Depending on how events unfold, it may take a while until the enormous significance of what was done sinks in.
Initially, it will seem that the use of tactical nuclear weapons was required by military necessity. Slowly, evidence will accumulate that the use of nuclear weapons against Iran was a premeditated act, following many years of planning , , , , , . No matter how careful planners were in erasing their tracks, evidence will slowly surface. Classified information will become declassified. Leaks will occur.
Nuclear terrorism against the U.S. will become enormously more likely after the U.S. used nuclear weapons against a non-nuclear country in a war of aggression. Arguments to justify the U.S. action, invoking the necessity of preemption, will ring hollow. There are many “loose nukes” around, and one of them may well find its way into an American city, well before Iran or any other “rogue” country manages to enrich enough uranium. Recall that no “chemical terrorism” against the U.S. has ever occurred, despite the fact that there are plenty of chemicals around. Terrorists seem to have a twisted logic that only weapons used by the U.S. are worthy of being used against the U.S.
Whether or not nuclear terrorism occurs against the U.S., there will be a general sense in America that “we have it coming” if the U.S. nukes Iran. Sooner or later there will be a sea change in the American political landscape and in the public mindset, as there was in Germany after 1945. The pendulum will swing, and a new pacifist administration will abhor these events and seek to punish the perpetrators, if only to restore some furbish to America’s image in the world.
Nuremberg sentences ranged from 10 years in prison to death.
“They still have very clear choices to make, and their choices will have major impact,” said Gen. Pace. Listen to him. Disobey illegal or immoral orders. Ask Congress to intervene.
There are whistleblower protection acts that protect military personnel [.pdf] and federal employees [.pdf] who disclose information concerning “a substantial or specific danger to public health or safety,” specifically to members of Congress. The National Security Whistleblowers Coalition aids whistleblowers that reveal facts that “compromise the national security of the United States.”
The deployment of tactical nuclear weapons in the Persian Gulf is likely to be authorized by NSPD 35 of 2004. A similar, top-secret “Nuclear Weapons Deployment Authorization” was issued by Nixon in 1974, giving presidential approval for deployment in many locations worldwide, unbeknownst to the public for many years. Deployment in the Persian Gulf is probably being carried out at this very moment, with the specific intent of keeping it secret as regulated by the just announced Navy Order OPNAVINST 5721.1F [.pdf]. Such an order was also issued by the Navy in 1974 [.pdf]. However, at that time, unlike today, there was a powerful deterrent to the use of nuclear weapons: mutually assured destruction. This is no longer true today, and deployment of tactical nuclear weapons is likely to precipitate events leading to the loss of many lives. Those carrying out the deployment are making a choice.
There are also choices to be made by every American. Where are the good Americans? Don’t sit by and let this happen! Ask Congress to ask Rumsfeld whether tactical nuclear weapons are being deployed. Ask Congress to limit the authority of the executive to order the use of nuclear weapons against non-nuclear countries. Do whatever you can do to protect yourself and your country.
A global nuclear war can lead to the death of every human being on this planet. World War I and World War II killed 10 million and 60 million human beings respectively, many more than anybody had anticipated before the wars started. Nuclear weapons are a million times more powerful than the weapons used in WWI and WWII. We have a National Strategy to Combat Weapons of Mass Destruction, so let us also combat our own WMD!
Using a single small nuclear weapon against Iran will start the ball rolling, a snowball that will roll downhill, gathering more mass and speed and momentum as it races toward the abyss, engulfing every human being in its path of unimaginable destruction, culminating in darkness, death, and extinction.
Make your moral choices now while you still can.