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Milgram, "just following orders", and compassion

by Nebton 5/14/2009 - 12:07 pm

In this posting, I intend to discuss how "just following orders" is not as lame an excuse as many seem to think it is, but how, nevertheless, we cannot accept it as a valid excuse, and attempt to look at how we should handle such cases.

For those not familiar with the famous Milgram experiment, you owe it to yourself to look into it. It demonstated that most Americans were willing to follow orders beyond a point that basic human decency would seem to preclude. A surprising 65 percent of participants showed no limits to how far they would go while following orders, while only 2.5 percent (i.e., 1 out of the 40 participants) refused to administer a shock that was marked as being dangerous. If you think we've evolved much, check out this episode of "What would you do?"

So, given that most of us would follow orders beyond what we find decent, how can we be too harsh on those who are given such orders and then follow them? Well, for starters, accepting such an excuse makes it even less likely that people would question such orders in the future, whereas making examples of those who did not question such orders makes it more likely people will question such orders in the future. But, is that fair? I think not.

So, what should we do? Here's where I feel murky, so bear with me. For one thing, I think making as many people aware of the Milgram experiment as possible as a form of innoculation is a beginning. Of course, it has to be done in the right context so as not to be seen as excusing such behavior. Secondly, I think we can follow the German example somewhat where great collective shame is heaped onto our heads for allowing it.

What else can we do? How much should we worry about fairness if it prevents future attrocities?

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Just addressed your comment the other thread. An added twist to this case is the legal advice from Yoo and others. According to this article, citing legal advice won't get you off the hook. However, the prosecution will have to prove that the defendants' interpretation of the law was unreasonable, and I imagine that the legal advice could weigh into that.

In other words, the question is not whether the interrogators were following orders. It's whether they reasonably believed that they were not breaking the law.

by Genghis 5/14/2009 - 12:48 pm

Well, even if they reasonably believed that they were breaking the law, I'd argue that the majority of persons would do likewise, if they believed they were being told to by an authority figure. This doesn't make it acceptable, but I do think it means we should think about how we prosecute those following orders (as opposed to those giving the orders). If the majority of us would do likewise, then how fair is it to penalize those who just happened to be in that situation? Does fairness even matter when such atrocities are involved, especially if it means we can prevent future atrocities? Does their paygrade come into account here? I.e., should we treat a private "just following orders" differently than a captain, where the captain presumably has had additional training that helps him understand that there are times when one shouldn't follow orders? (Maybe that's a bad presumption, of course.)

by Nebton 5/14/2009 - 12:57 pm (re: Genghis)

Your question is different from the one I tried to answer, probably because I was focused on the other thread. It's not a question of culpability but rather extenuating circumstances which should lighten the sentence, not unlike when someone steals to save their starving children. The theft is a crime, but a judge might use discretion in offering a light sentence due to the circumstances.

So let's assume that interrogator A is found guilty of torture. That is, under any reasonable interpretation of the law, his action constituted torture. Should his penalty be lighter due to the fact that most other people in his position would have done the same?

I've no idea about legal opinion on this question, but personally, I would say that a chief factor in determining extenuating circumstances should be the "What would I have done?" test. I would steal to save my starving children, and therefore, I cannot be too harsh towards someone else who does the same. But of course, it's not that simple. There are other extenuating factors in this case. Did the interrogator question the order? Did they fulfill the letter of the order, or did they execute with enthusiasm? Did they express regret? In short, was the crime committed from necessity and/or human weakness, or was the interrogator complicit in exacerbating the crime?

It may be that many of us have a hidden villain inside, and we underestimate what we would do in certain circumstances. If so, we're lucky never to have been put in such circumstances. But that should not stop us from distinguishing between simple human weakness and villainy.

by Genghis 5/14/2009 - 3:22 pm (re: Nebton)

It may be that many of us have a hidden villain inside, and we underestimate what we would do in certain circumstances.

That was something else that was apparent in the Milgram experiment. Some people reluctantly continued to deliver larger and larger shocks while others were laughing about it and seemed quite giddy.

by Nebton 5/14/2009 - 3:27 pm (re: Genghis)

Yeah, I recall that. It's not as shocking to me as to others, maybe because I grew up with so much Holocaust awareness. But it's also logical. If context can encourage criminal behavior, then you have to assume that there are a lot more potential criminals than there actual criminials. It's not just sadistic torture. From petty theft to genocide, people are capable of many things that they never actually do. But the fact that there are so many potential criminals in the world does not mean that we should lighten up on the actual criminals.

by Genghis 5/14/2009 - 3:52 pm (re: Nebton)

I think whether we should "lighten up" or not is the wrong question. The question we should be asking is what are the most effective techniques to:

  • Change the perpetrator's behavior such that s/he won't do it again
  • Discourage other potential perpetrators from doing this in the future

Given that we all might possibly by potential perpetrators, I think that we should strive for minimizing vengenance while also minimizing recidivism and future violations by others. Too much of our legal system seems geared towards vengenance regardless of effectiveness.

by Nebton 5/14/2009 - 4:01 pm (re: Genghis)

Well that's yet another question entirely. No fair changing. You posed this as an ethics/legal question. Now you're asking about sociology.

To that point, I entirely agree. I don't "get" vengeance. Whenever people scream for someone's head, I feel like Spock puzzling over the illogical peculiarities of the human race.

IMO, the best thing that we can do to stop this from happening is to write very clear laws that even John Yoo types can't fudge. That way, the Milgram context should be prevented. But I'm also not opposed to punishing interrogators if they're proved guilty under existing law.

But how about you? You're playing the shrinking violet and asking all the questions, but what's your stand?

by Genghis 5/14/2009 - 4:12 pm (re: Nebton)

Writing very clear laws seems like a good idea, but I remember reading a well-written piece in an IEEE magazine/journal about how laws that are too clear can actually be easier to circumvent, and so we need judges to enforce the intent of the law. (I wish I could find the piece I'm talking about, but alas, my Google skills have let me down. I can expound on this some, however, if you like.)

That said, the laws should probably be clearer than they currently are.

My stand on this is somewhat ambivalent, hence why I'm playing the shrinking violet. I think some prosecution is necessary, with the harshest sentences being meted out to those higher up the food chain who really ought to know better, as well. Currently, it seems we have that backwards.

by Nebton 5/14/2009 - 4:19 pm (re: Genghis)

You're raising a nuance that most nonlawyers don't pause upon, but which is critically important in understanding, and I think fairly assessing, what DOJ chooses to do and not to do in this area.  We have a doctrine of immunity for good faith reliance on what the law appears to be.

by Articleman 5/14/2009 - 2:39 pm (re: Genghis)

Thanks. I only wish that you could write freely about it.

by Genghis 5/14/2009 - 3:24 pm (re: Articleman)

I'm not sure that awareness of the Milgram experiment would do much to mitigate the human urge to follow orders for many, if not most, people. In a situation like that, it can be difficult for people to draw those kinds of parallels, especially for people who don't have the greatest critical thinking skills.

And as for national collective shame, I think that's a pretty steep hill to climb. On one side, you have a group belligerently suggesting (simultaneously) that we didn't torture and that torture is acceptable under certain circumstances. On the other side, you have a group belligerently suggesting that they have nothing to be ashamed of because they didn't ever support the war or torture and how dare you suggest that they should feel shame. And in the middle you have the somewhat recently sociological phenomenon of denied responsibility. So, you know, good luck with that.

It's impossible to figure out what is fair. It's impossible to figure out who is culpable, or more culpable. It's impossible to figure out what is legitimate and what is partisan. What a gigantic mess.

by Orlando 5/14/2009 - 3:04 pm

I like how you take my somewhat pessimistic view on this and make it totally pessimistic. Not that you're wrong or anything, though.

by Nebton 5/14/2009 - 3:37 pm (re: Orlando)

Ignorance is bliss.

by Orlando 5/14/2009 - 3:39 pm (re: Nebton)

Oh look, why can't a bunch of concerned citizens -- I nominate the dagblog editorial board -- simply snatch Yoo, Bybee and Cheney (though I assume he's still got Secret Service protection) off the street? Take them to some secret location in Philadelphia, then "not torture" them.

After a month or so of waterboarding, wall-slamming, sleep deprivation and stress positions, let them go. Justice will have been served. And if the "non-torturers" are ever caught (like if the FBI googles this blog post), they can claim they relied on the Yoo-Bybee memos for justification. It would be worth the risk of long prison terms just to see how Yoo and Bybee aquirm under cross-examination. I'd happily join in this little escapade, but I appear to be on some no-fly list.

by acanuck 5/14/2009 - 5:22 pm

Better yet, we can rendition them to Canada, and then you and Quinn can have your way with them.

by Genghis 5/14/2009 - 5:40 pm (re: acanuck)

You want to "go Canadian" on them?  That's harsh, bro.  Way harsh.

by DF 5/14/2009 - 6:50 pm (re: Genghis)

It's all, "Please tell us what you know, eh?  Right?"  And "if you don't tell us what you know, eh, we're going to have to put you in one of these smoky rooms for smokers like in Lester Pearson International Airport, and you'll only get Tim Hortons, right, for food.  So please don't make us do that, alright then?"  And it will always be in the low sixties during the questioning.

Did I mention the sunbathing women I saw in Vancouver in the coastal park when it was 58 last June?  I couldn't tell if they were albino, or what their deal was.  Fascinating country up there.

by Articleman 5/14/2009 - 8:01 pm (re: DF)

I cannot help hearing Scott Thompson read that monologue in my head.

by DF 5/14/2009 - 11:08 pm (re: Articleman)

Best idea I've heard to date.

by dijamo 5/14/2009 - 8:01 pm (re: Genghis)

While the Milgram experiment is interesting and bears some relation to the subject at hand, I don't find it particularly useful in judging the actions in question.  The reason for this is two-fold, but let me indulge in a brief anecdote before I make these reasons explicit.

Several years ago, around the time that U.S. forces were preparing to invade Iraq, I got into an argument with a close friend.  Not a heated argument mind you, but a sharp disagreement on one particular point.  We were discussing the matter of whether or not soldiers should be expected to disobey the orders that they would be given to invade.  My friend argued that they all have a conscious choice, regardless of the terms of their enlistment, and should be expected to exercise this choice in a manner conmensurate with their morals.  I argued that, while I agreed with him that they have choice, a functional military relies on chain of command, which cannot be preserved in an environment where soldiers are expected to dissent on the basis of individual judgment.  Indeed, soldiers can dissent, but they may end up suffering the consequences of violating their terms of enlistment.  Some do choose to do this.  I believe that one could argue that, like other acts of civil disobedience, this demonstrates their commitment to the grounds of dissent.

Where we didn't disagree is that the commanders are always fully responsible for their orders.  The Milgram experiment does nothing to exonerate the commander.  That's my first point.

The second point that I would make is that CIA and special forces operatives are highly trained in the techniques they employ and the ramifications of said techniques.  In the Milgram experiment, no one was ever actually shocked.  The subject is essentially being presented with a choice: Do I trust the authority figure who assures, at first very gently that I "Please continue", or do I trust the sense input I'm getting that tells me I'm inflicting pain on someone?  However, the subjects have to make this choice in absence of having experienced the stimulus they are delivering.

This differs strongly from the situation we're talking about.  These operatives know quite well, often from the firsthand experience of being on the receiving end of these tactics via training programs like SERE, what the effect of their actions will be.  As I've pointed out elsewhere, some who have been asked to do these things have indeed found the request to be more than they could bear.  Now, I suppose that you could argue that these operatives are perhaps desensitized to the effects of their actions through the course of their training, but I think that this is a different phenomenon than the one demonstrated by Milgram.

by DF 5/15/2009 - 10:46 am

Good arguments all, and I definitely believe the commanders have more culpability than the enlisted men and women. As for the CIA and special forces operatives being highly trained, neither Lynndie England nor Charles Graner fall into that set, yet these seem to be the people trotted out as the culprits (a few "bad apples" and all that). I imagine we're of the same mind there, of course.

by Nebton 5/15/2009 - 11:23 am (re: DF)

The commanders and enablers do indeed bear the bulk of the guilt. That's what the Nuremberg trials established, over and above rejecting the "only following orders" defense. Lawyers who conjured up justifications for war crimes were prosecuted, as were admirals and generals who carried them out. Torture and murder of prisoners figured among the charges, but also "waging a war of aggression." We hanged at least one guy for that.

People should come to grips with the fact that the only reason U.S. military leaders aren't on trial for war crimes is that there's no one in a position to take them into custody. Even the Yoo-Bybee memos, disgusting as they were, conceded that a procedure became torture (banned by both international and U.S. law) when the pain it caused equaled that of "organ failure or death." A standard they pulled out of their own asses, but nevermind.

Credible estimates are that at least 100 people died under U.S. "enhanced interrogation" in either Iraq or Afghanistan. Let me go out on a limb and suggest that, at the moment of their deaths, these individuals experienced pain commensurate with "organ failure or death."

So even by the laughable standards of Yoo-Bybee, a war crime had unarguably been committed. If I'm commanding officer at that location, I have only one choice: order such techniques stopped, and lay charges. Or if I don't have the balls to do my duty, resign. Did those torture deaths stop? No, they continued -- one after the other, at least 99 of them. I have yet to hear of an officer resigning in protest. The commanding officers at each base where such deaths occurred are, quite simply, war criminals. As are their immediate superiors and the civilian leaders who ordered the tortures to continue after the very first death occurred.

I sympathize with the political dilemma President Obama faces. He simply can't put half his top commanders on trial, much less the previous president, vice-president and several cabinet members. But "looking forward" and "turning the page" don't quite cut it. Neither does a Truth Commission, frankly, but at least it's a baby step toward acknowledging the enormity of the moral hole the U.S. government has dug for itself.

by acanuck 5/15/2009 - 5:11 pm (re: Nebton)

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