I have long supported the Nuremberg Doctrine: soldiers are individually responsible for war crimes, and following orders is no excuse. Nor is it an excuse to say that an action seemed acceptable and triggered no feelings of bad conscience. War often suppresses our conscience or turns it upside down, causing us to view mercy as a tempting form of weakness that we are obliged to avoid. Nevertheless, when we carry guns, operate prisons, or give orders, it is our responsibility to make sure that our conscience is working right. As Hannah Arendt observes, “politics is not like the nursery.” A person with a gun is not a child who knows that he is good if only he is obedient. One can follow orders without meaning to violate a law, and still be culpable.
However, I now see a complication. In the military, you are legally required to disobey illegal orders, but you are equally obligated to obey every legal command. A mistake in either direction can send you to a court martial. In civilian life, we have much more margin for error. If someone, even my boss, tells me to do something, I can say, “I don’t know if that’s legal (or moral), so I won’t do it.” Or I can make an arbitrary excuse to get out of doing something that I fear may be wrong. The worst that can happen to me if I avoid making a yes-or-no decision is losing my job. Because we have this leeway, we should be held fully accountable for participating in any illegal acts, even if we don’t understand the law or realize that we’re doing something wrong. It’s our responsibility to do the right thing, and if we’re not sure, we can duck the issue.
But soldiers are in a much tougher position. They must obey or disobey–immediately. It may be genuinely difficult to see that a grievous wrong is illegal under the hellish circumstances of war. Both historical evidence and experiments in social pyschology show that most people will do the wrong thing in hellish contexts. They will kill and maim other human beings out of duty, even though they don’t want to harm anyone. If most people will act this way, then I must assume that I would, too. And if I have no leeway, no opportunity to get myself out of the situation, then I am especially likely to make the wrong choice.
Thus it seems to me the rule ought to be: Don’t obey patently illegal orders. Indeed, this appears to be the legal standard. It is then a hard question whether the despicable acts committed at Abu Ghraib were obviously illegal. If the accused soldiers were free-lancing–deciding on their own to humiliate and abuse prisoners, and hiding their actions from their superiors–then they are guilty. If they were following orders, even vague ones, then I am open to a verdict of “not guilty,” as long as their commanders are held accountable.