Image © Austin Cline
Original Poster: National Archives
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Ever since World War II, it has been established legal doctrine that "I was only following orders" is not a legitimate defense against charges of war crimes — or indeed any crimes at all. I wonder if the U.S. government under Bush continues to recognize his principle? I have my doubts, but perhaps it's not necessary to formally repudiate it if the government can reformulate it in a manner that appears new enough to create confusion. That's arguably what the Bush regime has done now that Attorney General Michael Mukasey has effectively declared that "I was only following the advice of government lawyers" is a legitimate defense against illegal actions.
The excuse of "I was only following orders" has been offered primarily by soldiers. We should be sympathetic to the dilemma of military personnel trained to quickly and efficiently obey orders who are faced with potentially illegal and immoral commands. Despite heavy indoctrination against questioning orders, however, we still expect them to disobey illegal orders — or face stiff legal penalties. For this reason, the situation for civilians is even more clear cut: absent unambiguous evidence of threats to one's life for disobedience, civilians are legally and morally responsible for their actions. As human beings, they are expected to exercise independent thinking and moral accountability.
Superficially, at least, this new excuse of "I was only following the advice of government lawyers" appears to be different. There isn't the same conflict between social pressure of obedience to authority and adherence to basic moral or legal norms. Rather than potentially illegal orders from a political or military authority figure, we have advice from a legal authority that the previous orders are not, in fact, illegal after all. Even if they appear illegal or immoral, one is advised that they are not. Doesn't this change things?
Not in the least.
The changes are merely superficial because the advice from a lawyer does not change the underlying fact that each person is an independent moral actor. Each person is responsible for their own actions, including immoral and illegal ones, regardless of any advice they might receive from outside sources. A decision to trust and follow advice from a lawyer can no more relieve one of one's moral and legal responsibilities than a decision to trust and follow orders from a superior officer, a department manager, or anyone else.
If a Nazi concentration camp guard had supplemented his defense of "I was only following orders" with "...and those orders were declared officially legal by government lawyers," do you really think that the Nuremburg war crimes tribunal would have accepted this as a legitimate legal argument and let him go? Of course not. It changes nothing when a government lawyer falsely claims that illegal orders are legal — and that's before we take into consideration the fact that the German legal system had been subverted to make it complicit in Nazi crimes.
In Nazi Germany, all lawyers had to swear a personal loyalty oath to Adolf Hitler, and even defense lawyers were expected to put the interests of the state and Volk ahead of the interests of their clients. Naturally no one in the Justice Ministry would have dared issue a legal opinion that any policies of the Nazi government were illegal — and that's assuming that anyone there would have genuinely believed it, which is doubtful. America may not be Nazi Germany, but the underlying principle applies: government lawyers whose jobs depend on the same administration whose policies they are legally evaluating may not always be independent enough to be trusted to give accurate legal advice. They may be pressured or ideologically committed to defending the administration's policies regardless of law or morality.
What we now have, then, is a president who not only feels free to ignore laws when he sees fit, but who has assumed the authority to say that there shall be no judicial review of any administration actions if an administration lawyer has said that those actions are legal. This effectively invests all power in one branch of the government — and thus in one person — because it eliminates realistic checks and balances with the other two branches. It's little wonder that Mukasey's testimony has been deemed a declaration of tyranny. Because it's thus far only been exercised as a "soft" tyranny, with few obvious consequences for individual lives, it's something that can grow and develop until it can't be easily stopped.
Adolf Hitler and the Nazis are an easy point of comparison here, as demonstrated by what I've written thus far and the poster I've created, but Napolean might be a better analogy to use. Unfortunately, I don't have any nifty propaganda posters from the Napoleanic Wars, but I do have the writings of Alexis de Tocqueville. He wrote extensively about democracy and politics in his native France, though most Americans only seem to know him from his writings about American democracy — it's almost as if Americans don't care what foreigners have to say unless it's flattering about America.
Tocqueville argued that there were two distinct strands of politics that developed out of the French Revolution. One fit in with principles of individual rights, the rule of law, and liberty, while the other did not:
Characteristic of this second type of French democracy was rule in the name of the people by individuals, groups, or parties openly contemptuous of any limitations on popular sovereignty, the ostensible source of the power they exercised. Prominent among the significant contributions to the Revolution’s illiberal legacy were those Tocqueville attributed in large part to Napoleon Bonaparte: the perfection of a centralized administrative machinery; and the codification of a civil law that encouraged individualist self-enrichment, but sharply limited freedom of the press and of association as well as the autonomy of local governments.
This went along with the launching of theoretical justifications and actual precedents for seizing power by force from constitutional governments; the invention of plebiscitary dictatorship as a pseudodemocratic alternative to regularly elected representative governments; and among those who regarded themselves as revolutionary, the creation of a tradition of disregard for individual rights and constitutional government. (Dictatorship in History and Theory: Bonapartism, Caesarism, and Totalitarianism, Melvin Richter, emphasis added)
There are two factors here: illiberal trends that originated in worst excesses of the French Revolution, and the ways in which Napoleon built upon them to create an anti-democratic pseudo-democracy:
All these aspects of rule by the two Bonapartes reinforced tendencies developed earlier in what Tocqueville considered the most violent and least defensible periods of the revolution. ...France now had a distinctive set of post-revolutionary political moeurs (operative practices or political culture). All too many Frenchmen accepted the assumptions that violence is normal and acceptable in politics, that the state may as a matter of course set aside individual or group rights whenever they are alleged to conflict with the general or national interest; that strong leadership is incompatible with representative institutions.
Napoleon had instilled the taste for decisive action and leadership; he had perfected the centralized administration requisite for executing national policy without genuine consultation of the citizens. At the same time, he availed himself of and further developed means for conducting the national mobilization and propaganda developed during the wars of the Revolution.
Thus, to these existing post-revolutionary political moeurs, Napoleon added the Empire’s bureaucratic and legal structures, which effectively excluded citizens and their representatives from deliberating together and from making decisions on any level. Once in power, all successor regimes not only used but expanded the machinery put into place by the first Emperor. The Second Empire followed the precedents as well as the theory of the First. [emphasis added]
There is a lesson here for us, if we pay attention. As bad as Napoleon's actions were in and of themselves, they lived on long after he left government because later leaders were willing to use the power and precedents Napoleon had established. Something similar could happen to America unless our next president is willing to make changes. This is not merely "change" as a nifty campaign slogan — he or she must unequivocally repudiate every illiberal and antidemocratic precedent or policy which George W. Bush has created.
Even more important is the election of a Congress which is willing to prevent such abuses by passing legislation which makes them harder — and fighting when they begin to show again. If we rely too much on trusting the word of the next president to do the right thing, then we really haven't learned our lessons after all.