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Soldiers' problem - doing the right thing, and recognizing the wrong
By William H. McMichael | Army Times
The topic of lawful orders has been a hot subject since the shocking photos of prisoner abuse at the hands of U.S. troops and civilians at Abu Ghraib prison in Iraq became public.
Prisoners were hooded, piled naked atop one another, wired as if they would receive electric shocks and threatened with military dogs, among other things. There are allegations of the rape of at least one female prisoner, and at least two apparent slayings of prisoners in U.S. custody are under investigation.
U.S. military law is crystal clear on this subject: Service members have the right to refuse to obey an illegal order.
But what defines a ``lawful order?'' As a practical matter, what does a soldier do when he or she feels compelled to question the legality of an order?
Further, what happens if and when they do?
Army Maj. Gen. Antonio Taguba, who led an investigation of abuses at Abu Ghraib, told the Senate Armed Services Committee on May 11 that there was ``a lack of leadership presence'' at the prison, but he found no evidence that guards or military intelligence interrogators were given illegal orders to mistreat prisoners.
Some soldiers charged in the case, however, disagree, saying they followed orders from superiors to ``loosen up'' prisoners for interrogation. The civilian lawyers for Pfc. Lynndie R. England say superiors ordered her to hold a leash tied around an Iraqi prisoner's neck and pose for photos with other naked prisoners at Abu Ghraib so the pictures could be used to get other prisoners to talk.
England, 21, is charged with 13 counts of misconduct and faces prosecution, along with at least six other people.
On Tuesday, Army Spc. Jeremy C. Sivits, a reservist, was sentenced to the maximum one year in prison, a reduction in rank and a bad conduct discharge for his participation in the abuse and degradation of detainees at Abu Ghraib. Sivits, who photographed the abuse, cooperated with Army prosecutors and pleaded guilty to lesser charges than those filed against some of his colleagues at the prison.
The Abu Ghraib scandal raises the question for U.S. troops everywhere: How should soldiers react to orders that are obviously illegal - or at least seem questionable?
In a series of methodical steps, said Bill Eckhardt, a professor at the University of Missouri-Kansas City School of Law. Eckhardt, a retired Army colonel and attorney, was the lead prosecutor on nearly all the Vietnam-era My Lai court-martial cases. My Lai was the village where, upon orders by Lt. William Calley, a U.S. patrol squad opened fire, killing an estimated 500 Vietnamese citizens.
Some who were at My Lai said they acted on direct orders from the company commander.
The Abu Ghraib abuses, while heinous, pale compared with My Lai. But for soldiers faced with deciding whether to obey or oppose an illegal order, the process is the same, Eckhardt said.
``The first step is, any soldier who serves ... who proudly puts on the uniform, doesn't leave (his) conscience behind,'' he said. ``Secondly, they should trust their training and their standard operating procedures. Those are designed to help them when the bullets fly and when the adrenaline's flowing.''
All officers and enlisted soldiers are trained to respond to orders they believe to be unlawful by seeking clarification to ensure understanding; advising their superior that the order is unlawful; refusing to obey the order; and reporting the incident up the chain of command.
Eckhardt and others say that if an officer is pressed to follow an unlawful order after following the above steps and doing so would irrevocably compromise his integrity, he could resign.
``That's not very practical for a specialist or a private,'' Eckhardt said. ``They should seek assistance from someone up in the chain. The top enlisted person. The chaplains. Staff judge advocates.''
Obey or disobey?
According to military legal studies, a lawful order must be reasonably linked to military needs, be specific and not be contrary to established law - the Constitution, United States or other laws - or is beyond the authority of the person issuing the command.
Failure to obey a lawful order is a crime under Article 92 of the Uniform Code of Military Justice. But the UCMJ and military case law also make clear that military personnel have an obligation to obey only lawful orders, implying an obligation to disobey unlawful ones, Eckhardt said.
The Army points this out in a training package for its Law of Land Warfare, taught in basic training.
``The lack of courage to disregard a criminal order, or a mistaken fear that you could be court-martialed for disobedience of orders, is not a defense to a charge of murder, pillage or any other war crime,'' it states. While some illegal orders would be easy to identify, it is the gray areas that pose the greatest questions of legality. Killing a group of children would clearly be illegal, said retired Lt. Col. Ken Martin, a former Marine Corps lawyer now practicing in Tampa, Fla. But firing on a religious site is more ambiguous, he said, referring to laws of war that forbid firing on religious structures unless they are used for enemy protection.
``What if someone's shooting at you and running behind a mosque to get to another point?'' he said. ``Should you wait, or can you throw a grenade ... knowing it would destroy part of the mosque?''
Shooting someone who has surrendered is another clearly illegal order. But in a combat zone, Martin said, ``If I told an 18-, 19-year-old kid, `Shoot him. It's him or us,' I don't know if he would know that that's an unlawful order.''
Pentagon lawyers disagree on some of these gray areas, so it's not unusual for young service members to be unclear on what is and isn't allowed in certain situations.
``Some things are close legal calls'' Martin said. ``Military lawyers debate them themselves.''
Knowing what's right and wrong
The best test, perhaps, is one's own sense of right and wrong.
``Everybody needs to figure out (if) what they think in their gut is wrong,'' said Lawrence Mosqueda, who teaches political economy and social change at Evergreen State College in Olympia, Wash., and has read the Taguba report. ``Torturing somebody, putting wires on them, those are universally known as something you're not supposed to do.''
One personal gauge, Mosqueda said, could be whether the activity in which a soldier is engaged is ``not something you'd want known in detail to your family and friends.''
But much depends on the situation. ``If you're in a combat situation, under fire ... and you have about two seconds to make a decision, that's where terrible mistakes can happen,'' he said.
``The things we're seeing in the press right now, when clearly, you have hours to decide what you're doing - that's not a combat situation,'' Mosqueda said. ``That becomes routine. That becomes policy. ... What we're seeing right now are criminal acts.''
(Contributing: Librarian Lynda Schmitz Fuhrig and Military Times staff writers Laura Bailey, Gordon Trowbridge and Matthew Cox.)