Spoiler alert: do not watch the above clip if you have not seen the film Breaker Morant yet. Instead, go watch it as soon as you can possibly find a way to do so.
Foreword note: Let me state at the outset that, while the essay below primarily deals with the responsibilities of the individual, on the larger scale I believe that war in itself is a criminal act under the concept of natural universal law except in the very limited cases in which it is undertaken in self-defense to stop an ongoing act of invasion or killing, just as individually using force against someone else is only justified to when one's own person or home is actually attacked, and only until the aggressor stops (you cannot keep going after that, or you become the aggressor). Further, it is not self-defense if you are actually invading or taking the land of another people and they offer resistance: it is proper to use force against someone who breaks into your home at night, and the person breaking in cannot claim to be acting in accordance with natural law if that person points to your legitimate use of force and calls it aggression and calls their subsequent actions "self-defense." The idea that individuals can violate natural law when acting in groups or on behalf of a "country" or other entity is a form of mind control.
When I was a young cadet at West Point, we received countless classes in a variety of subjects related to the standards of morality and honor expected of an officer, including numerous classes devoted to one particular subject: the absolute duty of an officer to refuse to carry out an unlawful order.
Ask any of my classmates and they will attest to the fact that this particular subject was stressed over and over, and to the fact that the film which we would watch almost every time this subject was going to be discussed was Breaker Morant (released in March of 1980). I believe I can safely say without exaggeration that my classmates and I were shown Breaker Morant at least five times in its entirety in conjunction with classes on and discussions about the topic of unlawful orders, and probably closer to ten or even twelve times during our four years at the Academy.
Fortunately, Breaker Morant is an outstanding film, and anyone who has not seen it should do himself or herself a favor and go watch it immediately. I think the first time I saw it I did not understand a word that anyone said in the movie (Australian being a very difficult language when first encountered by non-native speakers) but after seeing it so many times I can probably recite the entire movie from memory.
The point of showing Breaker Morant to young future officers was that in the film (which is based on true events which took place during the horrendous Boer War, 1899 - 1902) young lieutenants and captains are given orders that Boer prisoners caught wearing British uniforms are to be shot, an order which Lieutenant Morant carries out. Although one of the most powerful issues explored in the film is the fact that the junior officers who carried out the orders were court martialled while the high-ranking British officers who actually issued those orders are never tried and were not even made available to provide testimony despite the requests of the defense lawyer, the consuming focus of all our "honor classes" on this subject was
the clear and unequivocal teaching that an officer must never obey an unlawful order, and that if an officer commits an unlawful act, saying "I was just following orders" is no excuse.
In one sense, it might be said that Breaker Morant was not the best choice of films to use to try to hammer this point home: after all, Lieutenant Morant (played brilliantly by the inimitable Edward Woodward, leading an outstanding cast), Lieutenant Handcock, and Lieutenant Witton are extremely sympathetic characters who are clearly being railroaded in a gross miscarriage of justice, and as noted above the film is really about the treachery of the British high command in leaving young officers to swing in the wind for political reasons. While the shooting of prisoners who are no longer enemy combatants is clearly a crime, deliberately withholding material evidence from the defense in a capital murder trial is of course also a crime which could also have been profitably discussed in those classes (it never was), and in fact the entire Boer War can be argued to have been a criminal undertaking by the British Empire, in which a populace which wanted to remain independent and had every right to remain independent was forcibly brought to its knees in order to annex their country (using brutal tactics including concentration camps).
On the other hand, the use of that particular film can be seen to have been an outstanding choice, in that it explores the subject of "unlawful orders" in great depth and with considerable dexterity, and powerfully dramatizes the tremendous pressures which threaten to sweep the individual off of his or her moral foundations, especially when he or she is caught up in a society which is actually being run by leaders who themselves are in gross violation of natural universal law. The irony of the events dramatized in the movie, and an irony of which the participants themselves are fully aware, is that they are being tried for murder by a system which continually demonstrates that it does not uphold the very laws that it is trying them for breaking.
While it may seem that the subject of Breaker Morant is rather far removed from the "ordinary experience" of those of us who are not exposed to the rather extreme situations Lieutenants Morant, Handcock, and Witton had to face, the subject of unlawful orders is actually incredibly relevant to all of our daily lives, and to the subjects discussed in this blog.
First, the subject has direct application to the discussion in the previous post regarding the use of the atom bomb to kill noncombatants at Hiroshima and then Nagasaki, exactly sixty-nine years ago. As that post revealed, the majority of high-ranking officers in the armed forces of the United States, all of whom had endured years of bitter fighting, believed that the use of those weapons was wrong, including the seniormost officer on active duty during the war, Admiral William D. Leahy, the Chief of Staff to the Commander-in-Chief, who stated unequivocally that dropping the bomb was barbaric and unethical.
Many of them expressed the belief that the use of the atom bombs was not necessary to convince Japan to surrender, and several of them stated that even if it was determined that their use was necessary, they could have been dropped on an uninhabited area as a demonstration of their power, with one stating that if they were to be dropped on a built-up area, civilians could have been warned some weeks in advance in order to allow them to leave before the bombs were dropped.
However, the question remains: if so many of these high-ranking officers opposed the use of the atomic bomb, and if the seniormost officer in the armed forces felt that it was actually ethically wrong and barbaric to use it, then how is it that they allowed it to be dropped? The answer is that there is a very strong tradition of civilian control of the military, and that these high-ranking officers were obeying the orders of the civilian commander-in-chief. They caused these orders to be carried out not just once, on August the sixth against Hiroshima, but again a second time on August the ninth, against Nagasaki.
That these officers believed it was their duty to carry out orders with which they strongly disagreed is quite clear from several of the quotations cited in the previous post.
General Henry H. "Hap" Arnold (West Point Class of 1907), the commander of the US Army Air Corps, stated publicly within days of the bombing that he felt the use of the atom bomb had been unnecessary. His deputy, General Ira C. Eaker, stated that:
Arnold's view was that it was unnecessary. He said that he knew the Japanese wanted peace. There were political implications in the decision and Arnold did not feel it was the military's job to question it.
There are several important points in that quotation: Arnold knew that Japan was already looking to surrender. He therefore concluded that militarily, further attacks were no longer necessary. He realized that there were apparently political reasons, but believed that there were no longer military reasons to do so. If one knows that one's opponent wants to stop the fighting, then continuing to attack (for instance, in order to push for "unconditional surrender") is no longer self-defense, but actual aggression (this situation can be argued to be directly analogous to the shooting of prisoners after they have surrendered). Further, the quotation, from someone who knew General Arnold well, indicates that Arnold believed it was not his place to question orders from the civilian politicians, although he clearly had strong misgivings about this fact.
Another indication of the same sentiment is the account in the previously-linked series of quotations from high-ranking military leaders who opposed the bombing of General Carl "Tooey" Spaatz (West Point Class of 1914), the commander of US Strategic Air Forces in the Pacific at the time of Hiroshima. He suggested dropping the bomb over the water to demonstrate its power without dropping it on civilians, and was so upset when he was told he was (in his words) "supposed to go out there and blow off the whole south end of the Japanese Islands" that he insisted on having the order in writing, saying: "I would not drop an atomic bomb on verbal orders -- they had to be written."
He later wrote: "The dropping of the atomic bomb was done by a military man under military orders. We're supposed to carry out orders and not question them." Obviously, General Spaatz was still very upset about this decision, and was explaining his reasoning for carrying out an order with which he deeply disagreed.
By the time my class went through West Point, new classes had been implemented (at some point in time) which emphasized the exact opposite: that an officer is never supposed to carry out unlawful orders and in fact has a duty to refuse to do so.
This subject relates directly to the arguments put forward by nineteenth century abolitionist, lawyer, and philosopher Lysander Spooner (1808 - 1887). He argued that an artificial law (that is to say, a "man-made law") which violates natural law is in fact an illegal law and hence no law at all, and that all men and women have a duty to refuse to honor an illegal law. He made this argument quite forcibly prior to the American Civil War (so-called, although it was not actually a "civil war" in that one side was not trying to take over the government of the nation, but rather to leave the nation), in which he argued that the Fugitive Slave Act was an illegal law in that it demanded upon penalty of imprisonment that people turn in runaway slaves, and Spooner argued that the holding of men and women as property (as slaves) was a gross violation of natural law.
Notice that he did not argue that men and women had to obey the Fugitive Slave Act, since it had been signed into law, until they were able to overturn the law through the due process of legislative action: he argued that the so-called "law" was illegal and hence no law at all. He further argued that those who argue that people are required to uphold an illegal law until it was overturned through legislative action are actually arguing for tyranny, because under that view a law is binding just because someone says it is, even if that law is illegal (such as laws enforcing slavery). In A Defence for Fugitive Slaves against the Acts of Congress of February 12, 1793, and September 18, 1850, Spooner argues that the Fugitive Slave Acts are unconstitutional (it can be demonstrated that Spooner sees the boundaries of the constitutional protections of individual liberty as co-located with the boundaries of natural law 'sprotections of individual liberty), and then goes on to say:
An unconstitutional statute is no law, in the view of the constitution. It is void [. . .]. If this doctrine were not true, [. . .] congress may authorize whomsoever they please, to ravish women, and butcher children, at pleasure, and the people have no right to resist them. 27.
By the word "ravish," it should be obvious, Spooner is describing what we would today term "rape." By offering such extreme examples as laws which would permit the raping of women and the butchering of children, Spooner was demonstrating the untenability of the position of those who argue that men and women must obey "laws" the moment they are placed on the books by a legislative body, regardless of whether or not those so-called laws violate natural universal law.
Clearly, in Spooner's eyes, even a military officer would not be required to obey the orders of the president, if that president ordered something that was clearly a violation of natural universal law (such as the employment of atomic weapons against noncombatant women and children). We could rephrase this argument as follows: "An order from a president which violates natural law carries no force of law -- it is void. If this doctrine were not true, the president could order whatever arbitrary injustice he wanted, and military officers would have no right to oppose him."
While the discussion above clearly applies to the duty of those in militaries to refuse to obey unlawful orders, Spooner argued with great moral clarity that this duty applies equally to citizens during peacetime, and particularly with regard to participation on juries. Spooner advocated a position known as "jury nullification," in which he argued that a member of a jury has an obligation to oppose a law which violates natural law or which is unconstitutional (in his eyes, they were very nearly the same thing, since he saw the US Constitution as being largely premised upon natural law, and rejected its authority in any places where it was used to support violations of natural law, such as in its toleration of the institution of slavery).
In a sense, one could argue that Spooner's position on jury nullification is very analogous to the teaching of the Breaker Morant classes I received at West Point, in that Spooner argues that a jury member had a right and even a duty to refuse to obey the instructions of a judge regarding the enforcement of an unlawful statute.
In a trial by jury, after all the arguments have been presented, the judge typically issues instructions to the jury which state that the jury has an obligation to determine whether or not the defendant has violated the law as it is written and as it has been explained by the presiding judge: they must not try to rule on whether or not the law itself is right or wrong. See for example the discussion of "instructions to the jury" on this web page of the American Bar Association, which declares that:
The judge will point out that his or her instructions contain the interpretation of the relevant laws that govern the case, and that jurors are required to adhere to these laws in making their decision, regardless of what the jurors believe the law is or ought to be. In short, the jurors determine the facts and reach a verdict, within the guidelines of the law as determined by the judge.
In other words, it is up to the judge to tell them the law, and for them to accept it and not question it, but only to determine whether or not the law was broken. But Spooner strenuously objects to this interpretation of the role of the juror: he argues that the juror is the last and most important obstacle to the imposition of arbitrary and tyrannical law. By the exact same arguments cited above, the position articulated by the American Bar Association, that the juror has no right to decide if a law is valid, could and would be interpreted to mean that a juror must vote to lock a defendant away if the law said that walking about in one's house without a shirt on was punishable by imprisonment, if the evidence presented proved that the defendant did so, regardless of the fact that such a law would be quite against natural universal law, not to mention the Fourth Amendment and various other parts of the Bill of Rights.
