On 16 March, 1968, Between 350 and 500 unarmed men, women, and children were murdered by U.S. Army soldiers in the South Vietnamese hamlet of My Lai. While twenty-six soldiers were initially charged with crimes stemming from the massacre only one, Lieutenant William Calley Jr., was convicted. The United States Court of Military Appeals upheld Calley’s conviction and refuted his main defense – that he could not be held responsible for what happened at My Lai because he was following superior orders.
The obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person…The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful.”
Almost 30 years to the day after My Lai, the U.S. Army presented retired Chief Warrant Officer and helicopter pilot Hugh Thompson with the Soldier’s Medal for Heroism, for evacuating a group of ten Vietnamese civilians out My Lai right before they were going to be executed by American troops. Thompson landed his helicopter in the heat of the massacre, and ordered his crew to shoot any American soldiers who opened fire on the civilians.
In 2018 America, seldom a day goes without the Trump administration setting policy and issuing orders which men and women of ordinary sense know to be unlawful. If the Republican party loses the House and / or Senate in November, Trump will grow increasingly paranoid and authoritarian, and this trend will only worsen. It is therefore imperative to call out to the ICE agents ordered to rip apart families, the police officers ordered to suppress the First Amendment, and the Assistant U.S. Attorneys ordered to terminate the Mueller investigation and prosecute refugees: refuse a demagogue’s orders to shred our Constitution, and history will not condemn you. It will remember you as heroes.
The legality of disobedience.
International law, domestic law, and U.S. military law have long held that superior orders are not blank permission slips to spit on your hands, hoist the black flag, and begin slitting throats.
- Article 8 of the Charter of the International Military Tribunal at Nuremberg (1945) states, “The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility.”
- Section 1004(a) of The US Detainee Treatment Act (2005) holds that superior orders are a defense to criminal prosecutions and civil actions that arise out of the detention and torture of suspected terrorists, but only if a defendant “did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful.”
- U.S. Army Field Manuel No. 27-2 (1984) tells American soldiers that, even in the face of superior orders to commit a crime, they are subject to punishment if they break the laws of war, and are “personally responsible” for doing so. “Orders are not a defense.”
- U.S. Air Force pamphlet 110-31 (1987) states that, “The fact that an act was committed pursuant to military orders is an acceptable defense only if the accused did not know or could not reasonably have been expected to know that the act ordered was unlawful.”
- The Commander’s Handbook on the Law of Naval Operations (2007) is likewise clear. “Under both international law and U.S. law, an order to commit an obviously criminal act, such as the wanton killing or torture of a prisoner, is an unlawful order and will not relieve a subordinate of his responsibility to comply with the law of armed conflict.”
The psychology of disobedience.
The hallmark of the tyrannical regime was not conformity but creative leadership and engaged followership within a group of true believers.”
It is usually thought that obeying superior orders is part and parcel of an inherent human impulse to do what we are told. Dr. Stanley Milgram and Dr. Philip Zimbardo conducted famous studies that painted an uncomfortable picture of humanity’s willingness to conform to authority, even when that authority requires us to inflict great physical harm on other men and women. But more recent work has re-examined Milgram and Zimbardo’s studies, and concluded that obedience to immoral authority is far more likely when people identify with and internalize the “roles and rules” laid out by that authority. Buying into a system, agreeing to its regulations, and pledging allegiance to its values are what propels people to torture and kill when that system asks them to.
The framing of disobedience.
On the one hand, this finding does not bode well for us. If evil results from identification-based followership, then asking law enforcement officials to refuse to carry out unjust and illegal orders handed down by a system they chose to spend a lifetime working within and legitimizing is a very tall order indeed. On the other hand, the finding provides us with better psychological tools to pressure state actors to disobey orders they should know are wrong. An ICE agent will refuse to separate a child from its mother only if we convince the agent that the illegal order sullies their badge, their code of honor, and American itself. A Department of Justice lawyer will refuse to fire Bob Mueller and refuse to shelve the Russia investigation only if we can convince them that their refusal will protect the Department of Justice, and preserve very Constitution they have spent a career defending. The heroism of their hoped-for disobedience should not be framed as that of an Emma Goldman or Che Guevara, but the heroism of a George Washington or Thomas Jefferson. Only when we frame disobedience as the most American of virtues will we will convince those in power to refuse to follow orders in order to help save America from itself.
– Joel Feinman