Sunday, July 06, 2008

Enforcing Laws and Obeying Orders

In a comment to a recent post, one of my regular commenters, Shaldon, brought up the issue of the degree to which a soldier can be morally praised or blamed for the quality of the actions he is ordered to perform.

McCain was shot down after about 20bombing missions over North Vietnam. Seems to me that a legitimate question would be what were the effects of those bombing missions to people on the ground? Did that aerial bombardment terrorize the people below? What is the likelihood that more than a few innocents were killed or maimed from the bombs McCain and others dropped?

Sheldon also says:

I am pretty tired of this admiration for so-called "war heroes". The real war heroes are those with the moral courage to speak of the truth about what they have seen, done and experienced.

I first want to stress that the principles that I apply here do not just apply to “war heroes”. They apply to first responders in general – police, fire department, paramedics, coast guard. They apply to anybody who puts his or her life on the line for others.

In this sense, the same types of questions that a soldier can ask, a police officer can ask as well. "What are the purposes of the laws that I am enforcing? What are the effects? What are the chances, if I follow the law in this case – if I wait to get a warrant or I release this person I suspect of a crime but against whom I have no evidence – that innocent people will die?"

And, yet, we still have reason to demand that anybody who joins the police force (or the district attorney's office, or becomes a judge) to enforce the law regardless of whether he or she agrees or disagrees with the law. We expect the police and the judge to enforce the law even when they think it is an immoral law meant to use government force to take advantage of others, or puts innocent lives at risk.

Similarly, we have reason to expect that anybody who joins the military will carry out his or her orders. Soldiers have no more discretion with respect to carrying out orders than a police officer does enforcing the law. (There is, in fact, a fair amount of discretion in both of these jobs, but not enough to threaten the point of this argument.)

At the same time, this duty to enforce the law, and the duty to obey orders, has its limits. Beyond a certain point, society becomes so corrupt that a person of good conscience cannot agree to go along with the actions.

There are two conflicting forces at play here.

One is the chain of command, which a functioning military requires. Higher-rank soldiers give their commands to the lower-rank soldiers who are then expected to carry them out. People with lower military rank give up a certain amount of their autonomy, and agree to follow orders. In return, those giving the orders acquire the responsibility of giving those under them orders that a respectable moral agent would carry out.

However, people higher in rank are not perfect, and some of them command others to do things that no moral person would do. The Nuremberg Trials established the principle that "I was just following orders" is not a legitimate defense against moral crimes committed during wartime. Lower-rank officers have a moral obligation to question the moral legitimacy of the orders they are given and, where those orders are found morally wanting, have a moral duty to refuse to obey.

Refusing to obey a direct order, like civil disobedience, puts the agent at risk of punishment. However, the individual is expected to have sufficient moral integrity that he is willing to accept punishment over committing a moral crime.

Yet, the distinction between what is and what is not a moral crime does not come to us in black and white. It comes to us in shades of gray, with no bright lines by which we can mark a particular option clearly morally permissible or clearly impermissible.

So, there are going to be areas where soldiers and law-enforcement agents are going to have questions – where reasonable people can disagree. We are even going to disagree over whether the realm of items we can permissibly disagree about. In the face of these types of questions, the benefit of the doubt goes to enforcing the law as written, and obeying the order s that are handed down.

Clearly, we cannot sensibly advocate a principle that nobody should become a police officer or a soldier until the institutions that give rise to their orders are perfect, and no police officer or soldier has a chance of getting a bum or immoral order. This would be the same as saying that we should have no police force or military.

Since abolishing the military and police force until we literally make perfect the system whereby agents obtain only perfect orders is out of the question, we are stuck with moral principles that sometimes command soldiers and police officers to do immoral things with small penalties.

Everything that I have written above is consistent with a right – even a duty – to question the morality of what one is asked to do. The obligation to enforce the law as written or to obey an order has its limits. At some point, police have a right – even a duty – to ignore unjust laws. At some point, even a member of the military has the right – even the duty – to consider whether the institutions that he is protecting deserve his protection.

This is a duty we all share. Since police officers and military personnel are limited in the degree to which they can question their orders, we have an obligation to set up institutions that make it more likely than not that soldiers will get good orders.

So, I agree with Sheldon's statement that people who speak the truth about war crimes and atrocities are also heroes, and deserve to be treated as such. People who leaked the Pentagon Papers in the 1970s and met with newspaper reporters in secret to reveal corruption to the highest levels of the Nixon administration deserve our praise and gratitude.

These are admirable actions.

Sheldon also says:

Another question relevant to McCain's qualifications is whether he is more likely to order similar attacks on Iran, and recklessly expand a regional war, and cause even more bloodshed and human suffering.

Sheldon is right - these are important questions. It is also permissible to use the intentional actions that McCain has performed as a pilot, as a prisoner, and as a Senator, to try to predict how he will behave once he enters White House. This is why getting shot down and being imprisoned are not signs of one’s ability to be President. Since these were involuntary actions, they tell us nothing about the types of intentional actions McCain would perform as President – and that is the question in need of answering.

Soldiers and police officers have a right and a duty to ask about the moral quality of the orders that they receive or the laws they are told to enforce. Yet, they also have a duty – as do the rest of us - to trust the institutions to provide them with good orders and just laws. They have no liberty to pick and choose – at least not until the orders become so heinous or the laws become so unjust that it is unreasonable to expect that the institutions that provide them are worthy of continuing, let alone be protected and upheld.


Anonymous said...

This is more a legal comment than a moral/ethical one: at Nuremberg we proclaimed that just following orders is not a defense. At best it can be consider a mitigating circumstance in a criminal case.

Sheldon said...

I thank Alonzo for his thoughtful response.

At the end of the comment quoted by Alonzo, I posted the link to the Iraq Veterans Against the War Winter Soldier testimony.
(One might also look into the recently released DVD on the Vietnam era Winter Soldier hearings available from Netflix)

After listening to almost all of the testimony posted online I was left with the impression that all of these soldiers wanted to do the right thing. They wanted to defend America to the extent they thought she was under attack. They wanted to be part of the solution, and to legitimately fight terrorists. They wanted to liberate an oppressed people from a vicious dictator. Many expressed serious regard for their oath to protect the constitution from enemies both foreign and domestic.

They also wanted money for college, and who could blame them?

And then they found that they were betrayed by lies and distortions. And they also found that much of their training was meant not to liberate a people, but to dehumanize them. They found themselves in a foreign land as an occupying force that inevitably put them in morally compromising positions.

And so this is where I again have to disagree with Alonzo.

"Yet, they also have a duty – as do the rest of us - to trust the institutions to provide them with good orders and just laws. They have no liberty to pick and choose "

It was reiterated by the testimony of numerous Winter Soldiers that they believed that they had the obligation to disobey illegal, immoral, or unjust orders. Surely you must agree?

And they also testified that based on their experience they were not being provided with good or just orders. At what point are they justified to pick and choose? I would think that as soon as they could discern the unjustness of the order.

Alonzo, I have followed your blog for too long to think you really believe that. And I was later relieved after a second reading to find a statement with a different conclusion:

.."we have an obligation to set up institutions that make it more likely than not that soldiers will get good orders."

These two statements, while not explicitly contradictory, suggest at least a different emphasis. To "trust the institution" or to remake the institution?

This seems to be the problem, we trust our institutions far too much, and we are far to willing to yield their genuine control to elites. We should be deeply skeptical of these institutions. And it seems there is ample evidence that trusting them is unjustifiable.

I would further argue that the equating of a soldier fighting in a foreign war with a domestic police officer is qualitatively different.

We as U.S. citizens have far more democratic control (however imperfect) over how our police behave in our neighborhoods, than we have, or the people of Iraq (or Afghanistan) have, over how the U.S. military behaves in their country.

Would we tolerate the destruction of a crime ridden area of a U.S. city, like we tolerated the destruction of Fallujah?

Would we tolerate no-knock mid-night raids on families' homes based on faulty intelligence? (Not to mention lack of search warrants).

Of course it is far easier to accept what is done by our government when it is done to the "other", than when it is done to a closer relation.

My initial comments were meant to call into question the almost reflexive honoring of people like McCain or even Kerry as heroes. We really don't give it much thought, do we?

It is true, if true, that McCain did indeed display noble qualities by refusing earlier release than his comrades, based on being an admiral's son.

But this reflexive admiration of war heroes is a short-cut around the critical examination of what soldiers are ordered to do in a broader context. It is an intentional propagandizing distraction, to "Support the Troops" on their mission, and to just "trust the institutions".

And by a broader context, I also mean to extend that to a broader historical context. Which if properly understood, could prevent us from sending young men with honorable intentions into the moral folly of foriegn wars of occupation.

Anonymous said...

Hello Sheldon.

I agree with everything you said (I think). I personally would never join the military unless there were literally forgein troops on our soil. Simply because I cannot accept the absolute negation of my own morality and judgements that are required to make a truely effective fighting force. It is not something I am willing to give up in order to secure access to resources.

However you gotta admit - a military that allows for individual thought and judgement by it's soldiers is extremely ineffective. The whole point of a military force is to unite X humans in the pursuit of a certain goal. Every human that does not work towards this goal to the best of his/her ability is a liability. An army full of such people would be overrun by an army a quarter it's size with a single unified purpose. To relinquish your own will is vital. When you are ordered to kill another man you must do so simply because that was the order, you don't have the luxury of contemplating if it is morally acceptable to do so, or what this man might have done to deserve a bullet in his chest (extreme hypothetical scenarios excluded).

Thus we are face with a conundrum. To have an effective fighting force we must train X number of humans to relinquish thier moral judgements to higher-ranked people. But doing so leaves us with the potential for monsterous actions.

The only moral "solutions" I see are to either relinquish an effective military, or to create a military that will only issue just and justifable orders to it's soldiers. I don't think either is possible in the real world. But how can you have a nation without some military to secure it? All part of the human tragedy?