FOLLOWING ORDERS; Text: IHT 17 May '04 (Lipak, Moss, Zernike) "They contend that they were following order...the central question of Abu Ghraib [is] whether what happened there was aberrration or policy -- "We intend to put the military on trial for their breakdown in leadership, structure, guidance, policy" Bergrin said." [Of course this is a co-optive defense; since it endorses the notion that the violence was an anarchic rather than systemic phenomenon. It is also a "rosh katan" defense: based on the presupposition that one is obliged to do only what one is told to do -- that is, an abdication from personal moral responsibility. "I'm not to blame, because nobody told me not to do it."] "But the most immediate task for the other accused soldiers is proving that they were doing waht their superiors wanted. "Our defense says he was folloiwng orders and that he believed the orders were lawful," said Guy Womack, a lawyer for Graner. [But in an army, it is taken for granted that orders are lawful. It is also taken for granted that all one's on-duty activities, and most of one's off-duty activity, is in accord with procedures, regulations, and of course orders. A soldier who does something that his superiors do not want is commiting an necessarily problematic infraction, which may range from tolerable (snitching a bit of ham from the larder) to treasonous (conveying drawings of West Point to Major Andre). A soldier who believes his orders are not lawful, is in an extremely difficult position. The usual thing, which is done in almost every case, is to carry out the act anyhow; in almost no case will the soldier be reprimanded for having done so; responsibility and possible blame goes up the chain of command until they pick a fall guy. A much less usual thing is to do the act, but complain or otherwise inform someone of it. Most "whistle-blowers" are of this type; trying to assauge their conscience as collaborators with a hopefully well-placed leak. Presumably that is what broke this scandal, though other factors may have been in play. The least usual, indeed a most extraordinary, thing is to refuse to carry out the order, on grounds of conscience. One who does that will almost certainly incur an immediate penalty. He might be shot on the spot; he's more likely to be immediately jailed for months or more, pending a by-no-means certain vindication. Indeed, the self-defensiveness of a bureaucracy, especially the military, makes vindication quite unlikely, regardless of the merits of the case, unless it can be made a media scandal. So one who believes an order to be unlawful and on that ground refuses to carry it out, is apt to be a hero or a martyr. (Although in some cases such refusals are accepted as collegial feedback. Netanyahu was on an undercover mission in Lebanon. They unexpectedly passed an old man, maybe on a bicycle. Netanyahu said, "Shoot him, Motti." The latter refused, and the team lived to tell the tale.) [Graner appears to have been the one voluntary sadist; he reportedly is said to have kicked a prisoner with buckshot wounds in the leg, and then said in a baby voice, "oh, did that hurt?". Which makes him sound like a victim of child-abuse attempting to exorcise the trauma of his past humiliation by projecting it on others [as the Bible sins, visiting the sins of the fathers upon the children ]. Incidentally, there seems little indication of sexual perversion by the guards; which indicates that these scenes of 'sexual humiliation' were staged, not at the initiative of the guards and for the fun of it, but to give the interrogators photos for blackmail.] "Womack conceded that the orders Graner would cite in his defnese were often general. "Most are not specific," he said. "some are pretty clear. The exact wording, it's hard to say." As noted, that is the usual way even lawful orders are conveyed, except to the stupidest or most recalcitrant of subordinates (who for such reasons will not ordinarily be entrusted with any task of much significance.) First of all is usually unnecessary, not to mention time-consuming and intellectually fatiguing, to give instructions down to the smallest detail. (Though that will be done for some extremely dangerous or problematic tasks, like launching a nuclear missile.) Secondly, in all but the most controlled situations, latitude must be allowed to whoever is carrying out the task, to adapt to changing and unanticipated circumstances. Otherwise, the chance of failure is much greater. (Which may be why World War I was such a bloodbath. As in a prior conflict "Theirs was not to reason why; theirs was but to do and die." (Which may sound awfully noble and sentimental to someone in a Victorian parlour, if not to a horse in the Light Brigade.) And of course it is the way to give an unlawful order. This was probably the standard procedure in business scandals, eg the Enron scandal. "In a statement to investigators 10 days ago, England was also hazy about who told her what tactics to use. "Did anyone ever give specific orders on how to 'break' the detainees?' she was asked, according to a copy of her sworn statement obtained by the New York Times. "No," she replied, but added that military intelligence "would tell us to keep it up, that we were doing a good job." [But of course this is also a way of giving orders; they are given retrospectively and implicitly, by approval or disapproval of the person, rather than given in advance as explicit orders. This is how dogs and management trainees are brought to forms of behavior acceptable in that context, be it pooping only under a tree, or kicking a bit of the bribe back to the supervisor. And indeed, what training seeks to inculcate is not a serious of actions -- for then constant training and supervision would be necessary -- but general attitudes, such that the subordinate may eventually be counted on to do what the supervisor wants, without requiring the supervisor to constantly "double" that task by constant supervision ("micro-management"). And of course one giving an unlawful order wishes to preserve deniability; so the order is necessarily given ambiguously. A lawful order must "be a specific mandate to do or not do a specific act". Rather than a regulation or policy, such an order "must be directed specifcially to the subordinate." [Well, that is true enough, but trivial. Again, it defines an 'order' of the type that, to refuse to carry it out is necessarily insubordination. ] But again: What is at issue here is not that some military police refused to carry out orders -- apparently, none refused -- but that they claim that what they did was "just following orders". So all this strict definition of 'order' shows, is that that such persons should more precisely have been said to have been carrying out, not orders, but procedures and policies, in the belief that these did not contradict standing regulations. Incidentally, the term 'lawful order' is misleading. As noted, an order is assumed to be lawful; if only because the legal authority given to officers over subordinates is almost unlimited, as any enlisted man could confirm. Again: orders are ordinarily given only in extraordinary situations, in a context of reluctance by the subordinates to carry them out. Eg, an order to run towards rather than away from a large number of gentlemen with presumably fixed bayonets. So the implication is misleading, that one who acted not in accord with a 'lawful order' acted unlawfully. On the contrary, he would almost certainly have been acting in accord with understood procecures. Almost any bureaucacy, including the military, runs less by explicit orders than by implicit procedures. I once worked for (and against) the Massachusetts Department of Welfare in Assitance Payments. There was enabling legislation (which could be challenged only in court, by a lawyer), and then duly promulgated Regulations (which could be challenged by a para- legal at a Welfare Department administrative 'fair hearing'), and then below that, Administrative Letters (which set regional office policy, but were not duly promulgated and did not have legal force), and beneath that, unwritten office policy. There too, as in a prison system, there is a sort of 'po' white trash' attitude of petty authoritarianism over the more disadvantaged 'clients'. One who explicitly challenged that would not hold a job for long. And those victimized by it had little recourse. Usually, the governing regulations were kept practically secret from all by the social workers, who rarely read them. As a welfare advocate, much less recipient, it was quite a breakthrough to obtain a copy of the offical Department of Welfare Manual (which was subject to almost continual revision, with updates, so one was constantly removing and replacing pages. When I got a copy, I pretty much read it cover-to-cover. Without having done so, I could not have won 'Fair Hearings'. [But this would apply mostly to refusing an order [hence in movies, the commander often says, "Adn that's an order." ] It does not apply to a defense (of an action later challenged) that one was merely "follwoign orders." "Neal Puckett, a laywer for Brigadier General Janis Karpisksi, who was the brigade commander of the miltary police at Abu Gharaib, said the defendants would not easily prove they were ordered to engage in some of the abuse. "I think they are going to have a hard time demonstrating that they were instructed that they were specifcally to strip these guys naked and pile them up on the floor," Puckett said. [But of course an order usually does not specify the precise means to be used. Soldiers are told to take a hill, but not how to do it, nor who to shoot. And the effecitveness of an army, eg the Israeli, depends on having subordinates whom one can entrust with a large measure of independent decision-making. As noted below, what we have here is the Brigade Commander trying, through her lawyer to scapegoat her lowest-ranking subordinates. She correctly but trivially notes that the specific acts which appear in the scandalous photographs were not explicitly ordered; hut disingenuously evades acknowleging that such acts expressed implicit procedures. (Such procedures apparently were set by the Intelligence branch -- maybe Military Intelligence, but quite possibly some sort of civillian contractors quite possibly more directly responsible to, and the reponsibility of, the Secretary of Defense. So what then becomes problematic is an apparently policy amongst the Military Police of that Brigade, to acquiesce to the wishes of the Intelligence officers. In a sense then, there may have been a breakdown, quite possiblly intention, in the chain of command, such that there was no systemic, legal, supervision of that Military Police Brigade (of prison guards, most untrained in such work), even though it was the guards who bore "hands on"(!) responsibility for treatment of the prisoners. But Havery Volzer, a laywer for Ambuhi, said that the 'followoing orders' defense should work in this case. "It's not like wer'e using the Holocaust excuse: 'We followed orderrs'" he said. This isn't that bad." Prosecuters have presented evidence contending that the defendants acted on their own. That concludes my direct comments on that article. More general remarks follow: ---------------------------------------------------------------- Only in the simplest case are orders specific and unambiguous. And this applies especially to ordrs to do something illegal. "Slab!" (Wittgenstein, PI) "Will no one rid me of this tyrant". (MacBeth) This is very similar to the analysis of bribery; where the quid pro quo is rarely explicit. So legal standards of proof presuppose a simplistic theory of meaning. This also applies to business, especially businesses that advance by une thical practices. Orders are commuiacted obliquely, by insinuation, and correct understanding of the speaker's intent is validated by promotion. The Chairperson of the PLO incites his masses to illegal acts in that way "Look at what we do, not what we say." ================================================================ We begin to see, here and very much in the Mazuz affair, how shabbily analytic philosophy is used by law. Philosophy becomes sophisitc apologetics for scoundrels. A handmaid to rhetoric, which is a handmaid to law, which has become an instrument, not of societal justice (nomos), but of unjust personal advantage. Handmaids are, to put it delicately, used. Like hand-towels. ================================================================= How quickly the facade of neo-conservatism crumbles, not one of Ronnie Regan's old cowboy sets. Faced with the inevitable surfacing of the prisoner-abuse scandal, like last month's corpse in his cement overshoes after the fish had their turn, the Bushie's immediately went into full-court CYA mode. A real army would have stood by its own subordinates. Instead, Rumsfeld immediately proceeded to set out his own defenses against possible -- indictment, I suppose; though no doubt Bush is already planning a defense against impeachment, as he should and may yet need to when the magnitude of this Iraq catastrophe becomes undeniable. First of all, there is much talk of 'I didn't have time to read the reports'; which is a really cheap defense. It is shocking that no one over the rank of sergeant-major has yet been charged. Obviously this was a policy that came from Rumsfeld (through his little protege) with the acquiescence of Bush. It shows typical John Wayne neo-conservative (or better, 'pseudo-conservative') machismo. The sort of 1940's comic-book brutality -- (no evidence intented to dumb animals ("man is a wolf to man")) that only someone with practically no experience of war or even violence could imagine was the way to 'play the man'. It also shows an almost paranoid mind-set: unable to find his secret cabal of evildoers in Afghanistan, Rumsfeldt set out to look for them in Iraq. Whoever really perpetrated 9/11 must be having a good laugh. The army lawyers defending the enlisted men are already plotting a defense that will save the officers, if not their clients. The first defense is that is was random sadism. And at least one of the defendants seems to fit that profile. Some claim the prison guards (military police from the national guard!) were merely acting on the orders of the intelligence officers, both army intelligence and (most bizarre!) contracted civillians. That traces almost immediately back to Rumsfeldt. I assume that intelligence personnel would all have officer rank, and that the guards, who did the actual hands-on dirty work, were merely enlisted men. Even without formal command subordination, the guards would have deferred to the officers. The second defense, invoked by the Brigade Commander, apparently some sort of token female, was: a breakdown in authority. The General in charge of the prison meant well, but her troops did not carry out her policies. (And also, she claims, she was unaware of the situation.) But it appears that authority worked quite well. The degrading acts were done (with a minimum of unnecessary violence) and photographed (one here recalls, as some have noted [eg that chap at Hebrew U.], that the most shocking thing about the Shoah was the depersonalization of sadism. And so one returns to the fear that the pseudo-conservatism of the Bushie's is a front for the continually resurfacing underground stream of American facism. There is a shocking amateurism, with the typically sophmoric caste of these sort of parvenu pseudo-conservatives ("like a silk hat on a Bradford millionaire" (TSE) -- "Mark Steyn" of the JP seems to enact the role to the point of parody, prancing through hoi polloi of Baghadad in a Brooks Brothers' suit, as if he came to the Mid- East in a Park Avenue cocoon, or space-suit. Eg, the assumption that if they could photograph the suspects in sexually compromising position, the supects would (as if they could!) show and tell anything to prevent those photos from being shown to -- who -- their neighbors in some struggling lower-class Baghdad street? Well, I still haven't gotten to the Applied Philosphy aspect of this matter, which is my only proper concern: to show how techniques of analytic philosphy, especially ordinary-language analysis, can clarify muddles, not merely in epistemology, but in current events. Again: I'd started doing that in my two notes on the Mazuz affair (the real scandal is not that Sharon took a bribe, but that the AG is contriving a rationale for not indicting him). The first note applied ordinary-language analysis; the second note applied the sort of construction of a micro-theory that was popular as an alternative to, or evasion of, ordinary-language analysis. For ol analysis is amorphous, almost literary, "soft"; where theory is clean, cool, neat; almost geometric. The first point to bring out is the necessary indeterminacy of orders. Even a computer has to have some freedom (so Kubrick's fantasy of 'HAL' in 2001). That's what principles, policies, strategies, and even tactics are: orders of a high levels of generality, and reciprocally lower levels of determinacy. The effectivess of an armed force is in large part related to the degree of freedom given its subordinates. Because warfare, being a competition, by definition develops unexpectedly, especially relative to any given time-frame; and an effecdtive solider must be able and enabled to respond immediately to changing circumstances. As noted: The strict definition of 'order' is a criterion for 'refusing to follow an order'. Which is something for which a soldier may be (and usually is) court-martialed. But the strict definition of 'order' is not a criterion for 'following an order'. Ordinarily no criterion for 'following an order' is needed, because ordinarily soldiers in an army follow orders, and are expected to do so. Criteria apply only to exceptional cases. We fancy that they apply to all cases; hence we speak of 'defining conditions' and 'necessary and sufficient conditions' for predication of a term. But definitions, except in a formal system, are after-the-fact, descriptive not prescriptive; merely more or less inept descriptions of ordinary usage. Any action taken in contradiction of orders is problematic, and requires justification. Eg, Sharon's unauthorized advances in the '67 Sinai War, which were justified by their success. (It was said at the time that he should have court-marialed, except that Israel court-martials officers for doing too little, not too much.) A fighter pilot once remarked to a group of civillian volunteers: when I am up there, I am in charge. When I come down, I may have some explaining to do; but up there, I am in charge. Ordinarily, in act done in accord with orders is not problematic, and so does not require justification. If it is subsequently deemed problematic, then justification is necessary. Here the usual defense is 'I was just following orders'. It is a principle in Israeli military law, apparently incorporated at least to some extent into USA military law, that one is obliged -- morally, of course; but also by legal rregulation -- to refuse to obey a 'patentently illegal' order. But also, any soldier who refuses to obey any order is ordinarily immediately placed under arrest. Which is not a pleasant experience, and may tend to break an ordinary person -- which, indeed, is why society has devised that sort of pre-judicial punishment. Horses, infants, and iconoclasts must be broken before they break something. ("He who is kind to the cruel, will in the end be cruel to the kind." From what does this derive. Maybe "do not favour a poor man in his cause" (Brecht says that, with his elegant plebian irony: don't sentimentalize the downtrodden, or you'll lose faith when you see that they're no better than anyone else; but rather, be motivated rationally, by the justice of the cause. (And oddly, that is quite the Chabad attitude.) So of course, Brecht was continually devising ways to break the tendency of an audience to escapist sentimentalization: interrupting the plot of his own plays with songs, captions, et. al. So refusing to obey a manifestly illegal order -- and note that it's illegality ain't manifest to most folks, otherwise the good soldier would not have been ordered to do it -- is a matter of extra-ordinary moral heroism. So it is not clear how this can be required of an ordinary person. It may be required of persons in extra-ordinary positions. We hung Eichman for "just following orders". But he had been in a very high position. (And soneone remarked to me, you don't get to a very high position by "just following orders".) Waldheim, who was subordinate to Eichman, and apparently contributed to the organization of the murder of Greek Jewry, was not held responsible; and went on to feast on the fat of the world; much good it may do him, that he feast on his memories in hell. The most recent example of a 'manifestly illegal order' in Israel, was Rabin's "beatings policy", for which he was never held accountable, despite protests at the time by Abba Eban, and by Zamir. (They did, however, court-marital a Colonel; who apparently kept pretty much mum.) Rabin had told troops to 'break the bones' of captured Palestinians who were -- in those days -- throwing stones at troops. Rabin deemed this, correctly, a more humane alternative than shooting at them, often with regular bullets (not rubber-coated). But there is something repugnant, indecent, about deliberately breaking an arm or leg bone of a captured, helpless prisoner. And so the policy was repudiated by the Israeli press and, one assumes, the public. Well, maybe this is enough for now. I'm a bit sleepy. The Muzzein were calling earlier, perhaps it's the start of a new lunar month in the Islamic calendar. ================================================================== sa, Mevo Modi'in, 18 May '04 -- 27 Iyar -- malkut sh'b' YESOD ================================================================