Kevin Jon Heller over at Opinio Juris has this thoughtful analysis about an acquittal last month of British soldiers who allegedly mistreated an Iraqi Prisoner: Opinio Juris Acquitted British Soldiers and the Defense of Superior Orders.
In sum, the prisoner, Iraqi hotel receptionist Baha Musa, died when being restrained by British troops as he tried to escape from their custody in September 2003. Over the course of the previous two days, Musa had received 93 separate injuries due to “relentless beatings.” A British court-martial was convened on charges of manslaughter and “perverting the course of justice.” That court-martial continued over the past year and a half, at great cost to the British government, but was brought to an abrupt end when the military judge dismissed the charges against five of the defendants. The military judge, Judge Stuart McKinnon, on 14 February ordered the military panel (the “jury”) to acquit the five men , and said that “no evidence had been presented that could prove their guilt.” On 12 March, the judge explained his reasoning during a court session for the remaining two defendants. He said: “It is now effectively common ground that brigade did indeed sanction the use of hooding and stress positions,” which are, he said, “generally accepted to be contrary to the Geneva Conventions and the law of armed conflict.” The charge on the two remaining defendants is “dereliction of duty,” and generally is easier to prove than manslaughter.
Testimony during the trials of the five had indeed evidenced that instruction “by the chain of command [was provided] to use conditioning techniques, including stress positions and hooding, to prepare detainees for tactical questioning.” That testimony came from Major Royce (not an accused), an officer in charge of handling detainees immediately prior to Major Michael Peebles (an accused). Maj. Royce also testified that he checked with the brigade’s legal advisor, Major Clifton, who confirmed that the conditioning techniques and hooding were acceptable. Major Clifton, in a written statement made to the court, denied recalling being asked about the use of conditioning, but confirmed that in some situations stress positions would have been acceptable.
So let’s put this in the American context. As Heller points out, authorization for U.S. troops to use stress positions was quickly rescinded back in 2003, four months after being initially authorized.
The Rules for Courts-Martial, 2005, the U.S. guide on how to try Courts-Martial, Rule 916(d), lays out the defense of “Obedience to Orders”:
It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.
R.C.M. 916(d), Manual for Courts-Martial (2005 ed.) (emphasis added). Any analysis in the U.S. military justice system of “lawfulness of orders” has to look at MCM, Part IV, Paragraph 14(d)(2)(a)(i). That paragraph states that there is an “Inference of Lawfulness” to orders given by superiors:
An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.
Further, so long as an order relates to military duty, “the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.” MCM, Para 14(d)(2)(a)(iii).
So within the U.S. system — based initially largely on the British military justice system, and with significant similarities — there’s a large amount of confusion. Troops must obey orders at their peril, and “conscience” and “personal philosophy” can’t justify disobedience of orders. As the U.S. Supreme Court has said time and again:
The inescapable demands of military discipline and obedience to orders cannot be taught on battlefields; the habit of immediate compliance with military procedures and orders must be virtually reflex with no time for debate or reflection. The Court has often noted “the peculiar and special relationship of the soldier to his superiors,” United States v. Brown, supra, at 112; see In re Grimley,
137 U.S. 147, 153 (1890), and has acknowledged that “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . . . .” Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion). This becomes imperative in combat, but conduct in combat inevitably reflects the training that precedes combat; for that reason, centuries of experience have developed a hierarchical structure of discipline and obedience to command, unique in its application to the military establishment and wholly different from civilian patterns.
Chappell v. Wallace, 462 U.S. 296, 300 (1983). This is the language that courts routinely use to justify the “different application” of the Bill of Rights and the Constitution to members of the U.S. military. Thus it’s widely accepted even as a Constitutional basis for the different treatment of the servicemember in regard to his or her Constitutional rights that the military requires, as a starting point, immediate and unquestioned obedience. There are exceptions, of course, but the servicemember approaches “orders” differently. I assume — anyone? — that the British system is virtually identical.
Now within that context, it is muddled, to say the least, as to whether it would be “patently clear” that an order — possibly endorsed by higher authorities — despite the fact that it was arguably, or colorably, violative of the Geneva Conventions — was illegal.
However, I don’t reach the same conclusion as Mr. Heller. Based on the same system of jurisprudence as ours, I’m certain that the British standard mirrors our R.C.M. 916’s “Defenses,” which states
[T]he prosecution shall have the burden of proving beyond a reasonable doubt that the defense did not exist.
R.C.M. 916(b). Judge McKinnon dismissed the charges after the prosecution presented its case, but before the defense began its own case. Granted, the news media coverage is sparse and — given its lack of familiarity with the military justice system — USA Today-like. But it’s a pretty good bet that at the close of the prosecution’s case, the defense moved for a finding of not guilty, and having presented no evidence — testimony or otherwise — that the Geneva Conventions were well known to the troops, or that a reasonable person would have known the practices to be illegal — the military judge reasonably concluded that the prosecution didn’t meet its burden to disprove the defense raised by its own witnesses.
That’s my take.