The Big Picture and the Closeup

[I]t can never be maintained that a military officer can justify himself for doing an unlawful act, by producing the order of his superior.

Chief Justice Taney, Mitchell v. Harmony, 54 U.S. 115, 137 (1851)[1] 

          Last time, we started with the premise that the MPs who abused the detainees at Abu Ghraib have been punished.  We asked then whether, for consistency, the bosses at the Pentagon who had ordered the MPs to commit that abuse should be held accountable too.  This time, I want to contemplate, as President Obama would prefer, taking that premise off the table.  Instead of dragging everyone else involved down to the fate of the MPs, Obama, along with CIA Chief Leon Panetta and most of the Republican establishment, would prefer to hold no one accountable at all.  (And maybe even, for consistency, pardon the MP grunts?)

          Let me start by noting our new Commander-in-Chief’s own undoubted if unspoken premise.  He knows it is politically unpopular; according to a recent CNN/Opinion Research poll, six in ten Americans oppose prosecutions.[2]   On the other hand, two of three Democrats are in favor, and they, not the Republicans, are the political vanguard right now.  Obama and his programs could withstand the controversy. 

          Nor do I believe that if the CIA or military interrogators are sanctioned for having tortured, that will diminish the Company’s morale – not unless morale is measured in continued willingness to “do whatever it takes,” which always seems to mean violating the law and the national conscience.  Unless we want the CIA to hang onto that kind of morale, I think we can afford to sanction the torturers.  The question, then, is not whether we safely can; it’s whether we should.

          Approaching that question intelligently requires recognizing that not everyone is, as we lawyers say, in pare delicto on this: sanctioning the torturers is different from sanctioning their bosses who were relying on the notorious legal memos.  And both kinds of prosecutions would differ from sanctioning the lawyers who wrote those memos.

          This time, I want to focus only on the torturers, the guys and gals with the electrodes and the damp cloths in their actual hands.  As I said a couple of months ago, they cannot seriously maintain that what they did was legal, either under U.S. law or under the law of nations.  Their main legal defense, if they have one, is that they were following orders.

          The precedents on this defense are not voluminous, but they are clear, and not helpful to lawbreakers.  Since the time of the Nuremberg trials, the post-World War II tribunals that tried Nazi war crimes, “just following orders” has not been viewed as a legitimate defense.  It was specifically rejected in the Charter of that tribunal, Article 8 of which read: “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.”[3]  

          The Nuremberg Principles were endorsed by the General Assembly of the UN in December of 1946.  The defense has been rejected in the Israeli trial of Adolf Eichmann and was ruled inapplicable in the trials of war crimes in former Yugoslavia.[4]   And there is of course that line of Justice Taney’s quoted above as well.  (Albeit Taney was articulating tort law, and without having heard of the conditional immunity modern government tortfeasors shelter behind.)

          Obama, Panetta, and the Cheney types all are uneasy with the notion of following the Nuremberg Principles.  For Cheney, the reason is obvious: he wants impunity for the torturers because he supports what they did – and may well have fears of a personal reckoning if the precedents are followed.  Obama and Panetta, however, claim to abhor what the torturers did, but want to grant them the benefit of the discredited Nuremberg defense anyway.  Apart from their political jitters, which I have already said I think are overblown, what could motivate this?

          It’s not all that profound, surely.  Obedience to orders, irrespective of one’s own philosophical or legal views, and even at the hazard of one’s own life, is normally indispensable to military organizations and paramilitary ones, like the parts of the CIA that probably did the torturing.  Generals or agency chiefs are supposed to weigh morality and law, and everyone else is supposed to leave that kind of thinking to them.

          If the footsoldiers started making their own policy decisions about things like the morality and lawfulness of orders, it would arguably validate a critical attitude toward the chain of command on other issues.  Good order and discipline could be lost as every private would second-guess the generals on more and more things, and chaos would ensue. 

          It does sound scary.  But it also sounds way too theoretical.

          In real life, as we know, there are enormous pressures to conform, especially in military and paramilitary organizations.  Some of them are as informal as peer pressure, others – e.g. courts martial for insubordination – quite the opposite.  The cost of following one’s conscience in the teeth of an order to torture a presumed national enemy is likely to be high. Under those circumstances, only the morally hardy would likely stand up.  Good order and discipline would survive, and respect for the law would usually come in second.

          One can argue, of course, that the cost of insubordination should not be so high, and that there ought to be conscientious objector status within the organizations for people who believe that specific orders are directing them to violate the law.  We could even make a virtue of questioning, not unquestioning, obedience.

          I happen to agree, but those remain separate and unrealistic questions.  In real life, torture refusers would probably find themselves between rocks and hard places.  No matter; life sometimes places us there.  If we choose to do evil, the Nuremberg Principles teach that the fact we sinned under orders, even orders backed by powerful incentives and wrapped in patriotic sentiments and fears about national security, lessens only our punishment, not our guilt.

          That being the case, there would be an enormous value to having public trials in which: a) the truth – so much of which is still unknown – was revealed; b) the United States acknowledged in action and not just in words that what it ordered was wrong; and c) precedent would be clearly laid down that there is no safe haven in following grotesquely illegal orders.  If we really want to discourage torture or other war crimes by U.S. forces, such precedent would be the way.

          Word is that some CIA operatives have been covertly disciplined or fired.  But sanctions without publicity are insufficient.  Word also is that the Justice Department, to which Obama has publicly pledged independence,  is still considering some prosecutions.[5]   It can only be hoped that Justice will bite the bullet.

          And what about the honchos who got the legal memos?  Next time.

 Note 1 http://supreme.justia.com/us/54/115/case.html

 Copyright (c) Jack L. B. Gohn