World War I brought us a hero named Sgt. York. A devoted pacifist, he was drafted into the army, and, after being denied conscientious objector status, struggled between his duty as a soldier and his objection to violence. He managed to capture 132 Germans and a machine gun nest in the Argonne Forest. The army named a tank after him.
For me, the importance of Sgt. York has always been how he struggled to reconcile his conscience with his duty as a soldier. This is the struggle that every soldier faced with an unlawful order faces, too.
The Uniform Code of Military Justice provides that a soldier should not obey an "unlawful" order. However, that is not always so simple. You, the soldier are not a lawyer, you have no training in the Constitution or the Geneva Conventions other than what you learned in the 4th grade and at boot camp. And you get told that the Dept. of Justice has opined — the smartest lawyers in DC have said — that the order is legal. You have just lost the legal underpinning for your refusal to obey that order. From a lecture series at Mercer Law School:
The decision to obey one’s oath and not follow illegal orders is no doubt a difficult one, and one that will probably result in punishment from those who issue the illegal orders. One should not take this issue lightly, just as one should not take the decision to follow an illegal order lightly. There will no doubt be consequences for those who follow their conscience.
You have seen what "bad" things happen to those who are prisoners of the US military. Hey, your whole problem is that you have been asked to DO the bad things–that’s the unlawful order. You wonder what bad things may happen to you if you get thrown in the brig for refusing to obey an order that the DOJ OLC says is legal. So, what do you do?
Enter Alyssa Peterson. Peterson was ordered to engage in "interrogation techniques" that she found unconscionable. She refused. She was reprimanded for showing "empathy" to the victims of those interrogation techniques, we don’t know if she was threatened with court martial or not because her diary and suicide note have been censored.
This is what happens when monsters with law degrees take away the legal underpinning for objecting to an illegal order.
Maybe we, the US, should name something after Alyssa Peterson. Not a tank. Maybe an army training center for human rights law?
Thirty-second in a series on torture and the law.