As the Abu Ghraib scandal has evolved over the past few weeks, there's been a lot of talk in both Left and Right Blogistan about the topic of "following orders", "war crimes" and the Nuremberg precedent. One of the seminal documents on the whole issue of responsibilities for war crimes was written back in 2001 for the journal, "Military Review", by Staff Judge Advocate Lt. Col. Michael Davidson. A quick google of Davidson’s name will turn up many references to his work, prosecutions, and Senate hearing testimony that he’s given over the years. He's clearly a conservative, and his opinions err on the side of protecting military personnel.
The subject of Davidson's paper, "Staff Officer Responsibility for War Crimes", is focused on the topic of what constitutes a legal order in the military. Secondarily, the paper broaches the topic of executive responsibility in the chain of command. Davidson opines that Staff principals would be criminally responsible for law-of-war violation their staff sections committed if they ordered an illegal act, had actual knowledge of the illegal activity, or should have known of it and failed to "take the necessary and reasonable steps to insure compliance with the law of war or to punish violators thereof.”
To the layperson, the most interesting aspect of Davidson's interpretation might be the discussion he provides regarding how nations other than the U.S. presume lawful and unlawful orders, and execution of both by subordinates. In short, an illegal order is defined (internationally) as "in evident contradiction to all human morality and every international usage of warfare".
Perhaps most frustrating to the international community is determining where the American buck stops in the Abu Ghraib scandal. I don't think there's any question in anyone's mind that the events at Abu Ghraib prison were "in evident contradiction to all human morality". So where does the moral buck stop? With the Staff Sergeant who was apparently one of the prime instigators? With the intelligence operatives who ordered "softening up"? With General Janice "Not My Fault" Karpinski, who apparently never heard of the concept of MBWO (management by walking around) or (perhaps worse) turned a totally blind eye to the abuses? Perhaps even further up the ladder to General Rick Sanchez, who (despite his Chief of Staff's signature to the contrary on the ICRC report in 2003) yanked out the Sgt. Shultz defense and claimed he knew nothing -- until late January, 2004? Or even higher, further, broader than that?
The precedent of determining where the buck stops dates back to the Nuremberg trial. In the Nuremberg trial, the allies (U.S., U.K., France and Russia) decided to prosecute a total of 22 defendants who committed the most egregious acts during the Nazi regime. Hermann Goering was the highest ranking Nazi official still alive at the time. At the beginning of the trial, he was steadfast in his defense, which shored up the other 21 guys behind him. Hell, maybe they were still scared of Goering, who held onto his beliefs to his grave. Goering's primary defense?
"I was just following orders."
As his defense fell apart, though, other Nazi songbirds began to chortle. Albert Speer took Clarke-esque responsibility for the crimes. I guess he wasn’t sleeping well at night. Ultimately, all but three of the 22 defendants were convicted. Even into the early 1960's, at the trial of Adolf Eichmann, the defense was trotting out the "following orders" excuse.
So, it's clear that there's historic legal precedent for establishing parallels and examples of military law as might be applicable to Iraq and Afghanistan abuses. As this process continues to unfold, the most important aspect is to understand why this type of thing happens in war. Actually, in my mind it's a no-brainer, but let's go to the expert - Gustav Gilbert, the psychiatrist who spent a lot of time picking the brains of the Nazi prisoners during the Nuremberg trial. His late-in-life book, “Nuremberg Diary” described his quest to find out what motivated such evil, and he came to an inescapable conclusion: all of the German defendants lacked empathy. He also concludes that Germans, having been raised with a culture of obedience and a history of propaganda, had a proclivity towards this behavior.
(Sidebar – I realize that, in a very real sense, “empathy” cannot play a role in dealing with armed enemy combatants. You can get dead quick by being empathetic to your enemy in a live fire situation. However, a subdued, naked, man/woman in a jail setting is a donkey of a totally different color.)
What Gilbert didn't overtly state is that he was describing the culture of military service, totally irrespective of nationality. From the first moment a soldier/sailor/airman enters the service, s/he is psychologically taken apart, and reconstructed to fit military personnel specifications. It’s cold, but it’s been effective for thousands of years. Gilbert's "blind obedience" and "propaganda" observations are squarely on the mark. So it should come as no surprise to anyone that, a) shared empathy was not present in Abu Ghraib, and b) no one seemed to question "irregularities".
The real crimes of this whole episode lie in the “irregularities”, tacit executive sanctioning, and institutional acceptance of the abuses by senior leadership. Still an open issue: how far up the pecking order will accountability be assigned?
There’s one last quote from Davidson’s paper regarding Nuremberg that is so germane to any discussion of Afghanistan and Iraq abuses:
The US war crimes tribunal rejected the defense of superior orders and convicted various members of the Nazi Einsatzgruppen for murdering almost a million civilians in Russia, and said, ”The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent. He does not respond, and is not expected to respond, like a piece of machinery.”
I served in the military for 8 years. I’m laughing even as I type the above words. My bosses in the military expected that I’d respond like a piece of machinery. It’s what I was taught. Cognition and reasoning never enter into the equation.