You don’t have to follow an illegal order, or do you???

April 23, 2009

While I think some of those GIs we saw in those awful Abu Ghraib photos abusing and torturing prisoners may have looked as they were all having a little too much fun, I realize the terrible dilemma they faced.

The evidence is clear that they were ordered to use harsh treatment (the euphemism for torture) on the prisoners (or detainees, another and strange euphemism) by non-military personnel (who were put in charge of some in the military) and by superior officers (that is not to say that it would not be possible that even then some went beyond what was ordered, although I doubt it).

But the terrible dilemma faced by anyone in the military, especially the lowly enlisted person, is that while you are not supposed to follow illegal orders, if you don’t, you could still be subject to punishment, to include courts martial. And if you do follow illegal orders, you may well still be subject to punishment to include courts martial (just ask Lynndie England and Charles Graner, for example) .

I am not a lawyer or legal authority but I did take Army basic training. I remember it clearly back in February of 1968 at Ft. Lewis, Wa. in a basic training company in the north fort area in what was a small wooden building that was something like a garage. The officer told us that we were not expected to follow illegal orders. “If you were told to march over the cliff,” you would not have to comply, he told us. But soldiers are not lawyers (generally) and have no way of knowing how to interpret the law in all cases (most cases) or, worse still, how the courts martial or courts of appeal might interpret it. We were told that if we chose to disobey what we deemed an illegal order that we’d better be right, because if we were not we would be subject to disciplinary action, to include courts martial.

If I am a guard at a prison and I am ordered or instructed that I should slap a prisoner, or I should make him or her remove her clothes and to otherwise humiliate a prisoner, or if I am ordered to take part in water boarding (but told it is not torture, just a harsh technique), who am I to argue? It might or might not seem morally repugnant to me, but in the eyes of the law it might not be illegal.

Also, as I mentioned in a previous blog, one of the first things a soldier learns in basic training is that superiors always have the double standard of telling you what to do but at the same time retaining deniability if something goes wrong. That is why career military people learn to cover their asses, CYA.

So what I am really trying to say here is that while in all of this harsh treatment and torture stuff, while I think that some of the lower level people may have known on some level that what they were doing was wrong and while they may (or may not) have enjoyed it a little too much, if they had wanted to be on the straight and narrow they would have likely faced a Catch 22.

That’s why the moral compass has to be set at the top.


Many articles I have read suggest that out and out torture is not generally effective. There are many mind games and methods that use deception and the fear of the unknown that produce positive results.

It may (or may not) hurt our intelligence gathering capability to the extent that prisoners might in the future feel that they will not face actual torture. Hopefully we can deal with the wrong doing of the past (and we do need to in order to make sure it does not happen again) without opening up our whole play book to the other side.