Unlawful orders

[Dingfod]

I posted this in another thread, but decided maybe it deserved a thread of its own because it is outside of politics a little bit.

How does the grunt in the field determine what is a lawful or unlawful order? I mean, murder should be obvious, but what else would there be to tell? It's not like they can call the legal department and say "Sarge says shoot the sumbitch, the sumbitch is unarmed and holding a white flag, can I go ahead and shoot the sumbitch?" Sarge may not like that much.

I understand that during the Vietnam war and even in Desert Storm, the soldiers were given cards with Geneva Convention rules for treatment of enemy prisoners, but this time they were not. In fact, the administration made quite a big deal out of saying the Geneva Convention didn't apply. If the administration sets the tone by implying that international law is to be ignored, how can someone at the field level make a determination of what is legal or not? You'd think it would be obvious, but I bet it's not.

If, by international law, the entire pretext for attacking Iraq was unlawful, is everyone in the military culpable for obeying that unlawful order? Remember, Iraq had not attacked anyone since they invaded Kuwait. Attacking another country because they merely might be capable of being a threat is a rather new tactic, gunboat diplomacy without the diplomacy.

Miscellaneous curious ramblings by a guy that never served in the military either.

[dave_a]

Originally Posted by warrenly

I posted this in another thread, but decided maybe it deserved a thread of its own because it is outside of politics a little bit.

How does the grunt in the field determine what is a lawful or unlawful order?

As a former grunt in the field I can tell you plainly we don't know what a lawful order is or isn't unless the order follows along the lines of "Hey, I don't like brown women and that there is a brown woman, shoot her in the leg so we can watch her scream". If sarge says shoot that guy over there and it looks like an unarmed civilian, we shoot him. We don't know that he isn't a combatant or someone with a bomb or whatever. If sarge says do it, we do it without question.

Now, remove sarge from the equation and it get's much worse. If sarge is there and he gives us an improper order, then sarge answers for it, not us. When is it justifiable (legally) to use deadly force? I have previously related experiences in the Marines where I had to make split second decisions on whether to shoot or not.

There was no right answer and there was no guidance even possible given the requirement to make an instant decision. It was the unknowable circumstances that determined if I would be acting lawfully or not. A vehicle runs the gate, my orders are to control access to the gate. I can't tell if there are bad guys in the vehicle or if it is just someone absent minded or someone who wrongly assumed I recognized them. Do I shoot? If I don't and they are bad guys, I was derelict in my duties at best and will likely be courtmartialed. If it was friendly forces and I do shoot, I will likely face courtmartial. Damned if you do, damned if you don't, it is a toss of the dice as to how it works out.

There are way too many grey areas that occur in a military operation to write a manual anyone can comprehend covering all the possible scenarios and the proper response.

[Shake]

Originally Posted by dantonac

There are way too many grey areas that occur in a military operation to write a manual anyone can comprehend covering all the possible scenarios and the proper response.

Damn, I was gonna chime in on this one as I remember multiple briefings about the Geneva Convention, legal combatants, etc., but this line sums things up pretty damn well!

They give you some big, general guidelines to follow, but they're pretty vague. As the above says, there are just too many situations to try to come up with individual rules for each one.

[wade-w]

Yes there are huge grey areas here, especially during combat. At times like those, stopping to question whether or not an order is legal is likely to get people killed. But when you are a guard in a POW camp and sarge tells you to torture a prisoner, that is clearly an unlawful order. If you are caught you will be held accountable for following it. In fact, this is exactly the type of situation that this policy was designed for.

The only guard duty I ever pulled had rather stringent and specific orders on the use of deadly force. If anyone came past my post without my express permission, I was required to shoot to kill immediately and without further warning. There were no exceptions to this order; it explicitly included friendly personnel, even shipmates. However, under the circumstances, I considered these to be lawful orders.

As for holding the entire military culpable because an invasion violates international law, I'd say no. The decision to go to war is a political one, and not something that the military should have any control over. Once your government decides to fight, it doesn't matter whether or not that government has international approval; the military is obligated to comply.

[Dingfod]

Doesn't questioning an order's legality go completely against all the conditioning to automatically obey orders by superiors without question. I was going to say training, but that part is more conditioning a response, is it not?

While sarge may be accountable for ordering you to shoot the woman to watch her scream, you would be accountable for obeying an unlawful order, would you not? I mean, Ms. England is not going to get out of being punished just because her superior ordered her participation in the Abu Graihb torture, right? I don't know, I'm just curious how that works.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law? Why are so many in the chain of command willing to take the fall for their superiors?

[dave_a]

Originally Posted by warrenly

Doesn't questioning an order's legality go completely against all the conditioning to automatically obey orders by superiors without question. I was going to say training, but that part is more conditioning a response, is it not?

Well in the Marines our doctrine was "instant and unquestioning obedience to orders". At the same time we were not to commit crimes and we were aquainted at least vaguely with the Geneva convention.

So, it's one of the kind of grey areas. If you disobey an order because you believe the order to be illegal/against the rules whathaveyou, and the superior giving that order reports you, then it is up to the judgement of one's unit or higher as to whether refusal to obey was warranted or not.

While sarge may be accountable for ordering you to shoot the woman to watch her scream, you would be accountable for obeying an unlawful order, would you not?

Yes. In a case like that it would be considered so obvious the order was illegal that even the lowliest grunt fresh out of boot camp should know that.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law? Why are so many in the chain of command willing to take the fall for their superiors?

Dunno, I certainly wouldn't have.

[Shake]

What the public is ignorant of, is that in non-wartime situations, orders as such, are rarely given. Peacetime, stateside bases run almost like any business.

Now wartime is a little different. Since you mention Pfc England, warren, I'll address that example. Now, Ms. England was working in a prison facility, not out on the lines holding a rifle. Granted, her situation was potentially dangerous, but she was not in a situation where split-second decisions were called for (regularly anyway), either. To emphasize my point about "orders", I'm sure no one came to her and said, "Private England, I order you to humiliate these prisoners." Her watching such actions go on, and worse yet, participating in them, shows blatent disregard for human rights and the Geneva Convention. She is as much at fault for not reporting such abuses as she is for participating in them.

I can buy not holding the military as a whole responsible for violating international law. What about a military action that violates a U.S. law?

Another fuzzy, gray area there. That is a good deal more complicated. I'm not gonna tackle that one right now.

[Shake]

Hmm ... who's the thread-killing sumbitch now?

[JoeP]

you

[wade-w]

Originally Posted by Shake

What the public is ignorant of, is that in non-wartime situations, orders as such, are rarely given. Peacetime, stateside bases run almost like any business.

This may be true in the Air Force, but it is most definitely not true of a Naval vessel. Even during peacetime, during a typical year a US warship will often spend 70% or more of its time outside of its home port.

[viscousmemories]

This may be off-topic, but weren't all the reservists involved in the Abu Graib scandal part of a Military Police unit? If so we aren't talking about regular Army grunts, but people who should have received specialized training in the management of prisoners both in and out of combat situations. I'm surprised there hasn't been more attention given this fact.

[Cool Hand]

Originally Posted by viscousmemories

This may be off-topic, but weren't all the reservists involved in the Abu Graib scandal part of a Military Police unit? If so we aren't talking about regular Army grunts, but people who should have received specialized training in the management of prisoners both in and out of combat situations. I'm surprised there hasn't been more attention given this fact.

VM, your point is well taken. I agree with you, but I don't find its application peculiar to military police. It applies to all soldiers, but perhaps to MPs more than others.

I'm not sure what you mean by "regular Army grunts." "Regular Army" actually has a special meaning in the U.S. Army, distinguishing it from the U.S. Army Reserve and the Army National Guard components. For purposes of this discussion, however, we can forget about that. "Grunt" is a slang term for a infantryman. You might already be familiar with the following background discussion. If so, please accept my apology for rambling on about it, but it might be helpful for others.

All enlisted soldiers, whether from the regular, reserves, or national guard components, receive basic training, which includes some infantry skills. The idea behind this is that underneath everything else, all soldiers must be trained and ready for combat. After basic, all enlisted soldiers get assigned a military occupational specialty (MOS) and go on to advanced individual training (AIT) in their respective specialities (there are hundreds of these). Officers go through a roughly parallel track, with basic leadership and military skills training, followed by an officer basic course (OBC) in his or her designated branch of the army (examples of branches include infantry, artillery, aviation, engineer, medical, transportation, adjutant, and many others).

Military police is another branch specialty of the army. You are correct that MPs receive at least either AIT or OBC training in the special skills required of MPs. Like all soldiers, however, they complete initial training in basic infantry skills and tactics and other military skills.

Infantry is a branch specialty of the army as well. Those given an infantry MOS or officers branched in the infantry receive further, specialized training in advanced infantry skills and tactics. They are the ones to whom the term "grunts" usually refers.

Even reservists receive the initial and specialized training I describe above. After their initial training, however, those serving in the reserves go about their civilian lives, performing army reserve duty by training two weekends each month and for two weeks each summer. National guard duty is the same, except that guardsman are governed by state law and serve their respective states, rather than the United States.

*******************


Back to the Abu Ghraib soldiers. My understanding is that they were members of a military police reserve unit that was activated and deployed to Iraq for duty at the POW camps. You are correct in that as MPs, each soldier had to have completed basic and then AIT for MPs, and any non-commissioned officers (NCOs) would have also likely attended the basic NCO course for MPs. Thus, all of them would had to have had specialized training in military police duties, which would include safeguarding prisoners of war (POWs).

I suspect that a basic common misconception here is that other soldiers do not have training in handling POWs. That simply isn't true in the U.S. Army after the Second World War, and especially after the My Lai trials in 1970 and 1971. Every soldier, regardless of specialty, receives some initial training regarding the lawful treatment of POWs and other non-combatants, and all soldiers on active duty receive at least annual training regarding the same. Reservists and guardsman are required to receive periodic training as well, but I suspect training may be uneven among units. Therefore, even "grunts" have some training on the lawful treatment of POWs. It is impossible in today's army, reserves, or guard to claim ignorance regarding the lawful treatment of POWs. No one in any component of the U.S. Army can truthfully claim to believe that it is lawful to humiliate, torture, or kill unarmed prisoners of war under one's charge.

Although Lieutenant William Calley claimed he did not know it was unlawful to kill enemy women and children non-combatants in the Vietnamese village of My Lai, his court-martial panel refused to accept it as a lawful defense to murder, and he was convicted and sentenced. Today, every U.S. soldier learns about Lt. Calley and why his defense of following orders is not a lawful defense to a war crime. Even in Calley's time his defense was simply hollow. Take a look at this link to this "pocket card" given to all U.S. soldiers in Vietnam after September 1967 during the Vietnam War.

MACV Pocket Card--The Enemy in Your Hands

Notice this rule:

"You cannot and must not:

* Mistreat your prisoner.
* Humiliate or degrade him.
* Take any of his personal effects that do not have significant military value.
* Refuse him medical treatment if required and available.

ALWAYS TREAT YOUR PRISONER HUMANELY"

And this one:

"5.) All persons in your hands, whether suspects, civilians, or combat captives, must be protected against violence, insults, curiosity, and reprisals of any kind.

Leave punishment to the courts and judges. The soldier shows his strength by his fairness and humanity to the persons in his hands."



Lt. Calley would have been given one of these cards, as would each of the members of his platoon that he led.

Today, soldiers deployed overseas are given something similar and receive regular briefings regarding the same. I simply do not buy anyone's claim that these or any other soldiers received inadequate training such that they could in good faith believe that abusing, humiliating, and mistreating Iraqi prisoners is lawful under any circumstances. Every member of a court-martial panel would also understand that such a claim today is not credible, as all of them would be soldiers equal to or higher in rank than the accused. All of them would know that all soldiers receive training regarding the lawful treatment of POWs. Anything to the contrary is doubletalk.

Cool Hand

[Dingfod]

I've read that the Reserves and National Guard units in this conflict were given no such cards and no refresher training in Geneva Convention rules before being shipped out. Some of them may have 20 or more years that have passed since their basic and specialty training. Maybe the military should've printed the rules for treatment of POW on the ceramic body armor inserts. Oops, they didn't get those either.

[viscousmemories]

Originally Posted by Cool Hand

I simply do not buy anyone's claim that these or any other soldiers received inadequate training such that they could in good faith believe that abusing, humiliating, and mistreating Iraqi prisoners is lawful under any circumstances.

I'm sorry if I gave the impression that I think that. I only meant to point out that MP's receive more POW-specific instruction than regular enlisted folks, so I wonder why people focus more attention on the fact that they were reservists than the fact that they were MP's. I agree that any soldier should have known that such behavior was unacceptable, but I think MP's in particular.

FWIW I do know what a grunt is and what RA means, I used to be an enlisted man in the regular Army. But I apologize for my careless phrasing and I appreciate your precision.

[Cool Hand]

Originally Posted by warrenly

I've read that the Reserves and National Guard units in this conflict were given no such cards and no refresher training in Geneva Convention rules before being shipped out. Some of them may have 20 or more years that have passed since their basic and specialty training. Maybe the military should've printed the rules for treatment of POW on the ceramic body armor inserts. Oops, they didn't get those either.

I don't know whether or not they were given cards before or during their deployment to Iraq. None of the soldiers charged had 20 or more years of service. As I mentioned above, ALL U.S. soldiers receive training regarding the law of war and the treatment of prisoners of war. Not only do they receive such training in basic training, but they also receive it in AIT, basic NCO, and during required annual training.

This was a military police unit. All of the soldiers in question were military police soldiers. Besides the training all soldiers receive in the treatment of POWs, MPs are given specialized training regarding the same; they are the soldiers charged with the primary responsibility for safeguarding prisoners.

Take a look at Army Regulation 350-1, Army Training and Education, Paragraph 4-14. It is entitled "Law of War Training." It applies to ALL U.S. Army soldiers, including reservists and national guardsmen who go through their basic, AIT, and all subsequent training for their specialities and career development. The reserves and the guard do not have separate basic training courses or AIT, or career development in particular branches or specialties. Members of those components attend the same training courses alongside members of the regular army. They all attend the same kind of training. At any given class you will find members going through the training who happen to be reservists or guardsmen.

Here's what the regulation says:

"4–14. Law of war training
a. Soldiers and leaders require law of war training throughout their military careers commensurate with their duties and responsibilities. Prescribed subject matter for training at the following levels is specified in paras 4–14b-d of this regulation.
(1) Level A training is conducted during IET for all enlisted personnel and during basic courses of instruction for all warrant officers and officers.
(2) Level B training is conducted in units for officers, warrant officers, NCOs and enlisted personnel commensurate with the missions of the unit.
(3) Level C training is conducted in TASS.
b. Level A training provides the minimum knowledge required for all members of the Army. The following basic law of war rules (referred to as “The Soldier’s Rules,” which stresses the importance of compliance with the law of war) will be taught during level A training:
(1) Soldiers fight only enemy combatants.
(2) Soldiers do not harm enemies who surrender. They disarm them and turn them over to their superior.
(3) Soldiers do not kill or torture enemy prisoners of war.
(4) Soldiers collect and care for the wounded, whether friend or foe.
(5) Soldiers do not attack medical personnel, facilities, or equipment.
(6) Soldiers destroy no more than the mission requires.
(7) Soldiers treat civilians humanely.
(8) Soldiers do not steal. Soldiers respect private property and possessions.
(9) Soldiers should do their best to prevent violations of the law of war.
(10) Soldiers report all violations of the law of war to their superior.
c. Unit commanders will plan and execute level B law-of-war training based on the following:
(1) Training should reinforce the principles set forth in The Soldier’s Rules.
(2) Training will be designed around current missions and contingency plans (including anticipated geographical
areas of deployment or rules of engagement).
(3) Training will be integrated into unit training activities, field training exercises and unit external evaluations.
Maximum combat realism will be applied to tactical exercises consistent with good safety practices.
d. Army schools will tailor law of war training to the tasks taught in those schools. Level C training will emphasize
officer, warrant officer, and NCO responsibilities for:
(1) Their performance of duties in accordance with the law of war obligations of the United States.
(2) Law of war issues in command planning and execution of combat operations.
(3) Measures for the reporting of suspected or alleged war crimes committed by or against U.S. or allied personnel."

[emphasis added]

I've placed some of the quoted text in bold and some in italics. I am trying to get across that all soldiers get law of war training, and not only do they get it from the very start of their careers, but they also have it integrated into every single phase of training they have throughout their careers. Also, every field training exercise a regular soldier, reservist, or guardsman participates in incorporates law of war and prisoner of war training in it. Classroom instruction supplements the field training. This is an everyday ongoing level of instruction. It is drilled into the heads of all soldiers. There is absolutely no way to miss the gist of it. One could be asleep throughout 90% of the training and still get it.

Cards would be icing on the cake. Even without cards, even without refresher training upon activation and deployment, even without field training in Iraq, every single U.S. soldier in that MP unit had been thoroughly trained at least twice, and probably dozens of times on average, that it is unlawful to mistreat or abuse prisoners of war.

These people are lying if they claim they simply did not know they could not abuse their prisoner charges. If they knew their heads from their asses, they knew that abusing, humiliating, or torturing their POWs was illegal and a punishable offense under the UCMJ.

******************

Not only did I receive treatment of POWs training dozens of times during my military career, but I taught such classes to other soldiers in garrison as a matter of course. None of them ever heard those concepts from me for the first time.

Law of war training in today's army is as integral as sexual harassment training or training in how to wear the uniform. Soldiers don't need cards to tell them not to feel up their squad leaders or that their boots go on their feet.

Cool Hand

[Cool Hand]

Originally Posted by viscousmemories

I'm sorry if I gave the impression that I think that. I only meant to point out that MP's receive more POW-specific instruction than regular enlisted folks, so I wonder why people focus more attention on the fact that they were reservists than the fact that they were MP's. I agree that any soldier should have known that such behavior was unacceptable, but I think MP's in particular.

FWIW I do know what a grunt is and what RA means, I used to be an enlisted man in the regular Army. But I apologize for my careless phrasing and I appreciate your precision.

Hey, no need to apologize; I understood you. I was merely remarking in general, not so much to you, that I don't buy that excuse. I got that you were highlighting that of all people, MPs should know how to handle prisoners. That's a very good point and one that does get overlooked too often. I should have made it clearer that I was addressing others in my background information and in my arguments, not you.

I thought I recalled your having served in the army. I thought you knew what you were talking about.

Thanks.

Cool Hand

[edited to add: VM, I just re-read your post that I responded to. Shit, you said everything I've tried to say about MPs, but you did it in only a few words and clearer than I did. Much or most of my response was impertinent. I should be apologizing to you. Sorry.]

[Dingfod]

I stand corrected. I wasn't defending the war criminals at all. Not having served in the military I was just trying to get an understanding of their defense, if there is any to be had. I think any person with half a brain would know that what they did at Abu Graihb was wrong.

Now, as for the soldiers with 20 or so years, there are plenty of guard and reserves that are that experienced, many of them are over there in Iraq too, but not charged in this incident. Perhaps more experienced soldiers would have known better.