“I WAS JUST FOLLOWING ORDERS” IS NO DEFENSE TO CRIMES AGAINST HUMANITY*
HINT: It Didn’t Work At Nuremberg
Untitled, Woodcut, Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**
I intended to focus this post on civil disobedience. In response to this administration’s inhumane treatment of children, women and men from shithole countries who are in United States’ custody, peaceful protesters are engaging in civil disobedience, subjecting themselves to arrest, criminal charges and incarceration. Some illegally assist by providing food and water to people who are seeking refuge as they make their way through extreme conditions. Sanctuary cities and states throughout the country are refusing to provide access and information to federal agents who, under Individual-1’s directive, are determined to eradicate such filth from America the White.
As a refresher, I poured over Thoreau’s Civil Disobedience, Gandhi’s On Civil Disobedience and Martin Luther King’s Letter from Birmingham Jail. Written in the face of slavery, imperialism and class and race oppression and Jim Crow, their relevance endures, informing the present. Even as a young teen I was fascinated with principles of civil disobedience, the moral imperative to disobey immoral laws and illegal orders while accepting the consequences of such defiance. As Dr. King said, “[a]ny man who breaks a law that conscience tells him is unjust and willingly accepts the penalty by staying in jail in order to arouse the conscience of the community on the injustice of the law is at that moment expressing the very highest respect for law.” I was nine years old when he was murdered. Less than a month later in April 1968, Calley issued the order at My Lai.
These principles have clear application to the direction Individual-1 and his base are attempting to take the country. Every now and again we see courageous people who refuse to follow illegal orders or obey immoral laws, brave souls willing to suffer consequences which to them are morally preferable, even necessary, to the alternative. Sally Yates was stood against the wall and shot, metaphorically, for her defiance of Trump’s thinly-veiled Muslim ban. She did so because she believed the ban violated the Constitution (which she had sworn to uphold) and laws of the United States (an illegal order), but more significantly because it was immoral.
As I began writing this post, however, I wondered whether anyone has been charged with a crime for having followed or carried out an order issued by a President of the United States, as Commander in Chief or otherwise. There was that whole CIA torture thing, enemy combatants, rendition to agent countries for extreme interrogation. Presumably, such a prosecution could never occur while the administration that issued the order remained in place.
If such a prosecution occurred, however, “I was just following orders” would serve as a hollow justification for crimes against humanity, regardless of who issued the order. It didn’t work at Nuremberg. The Code of Military Justice applies, of course, to members of the military, but the concepts have universal application to those who serve as agents of unprincipled or immoral principals and wittingly carry out their directives. Members of the military swear an oath to defend the Constitution against all enemies, foreign and domestic, and to follow the orders of the POTUS and superior officers “according to the regulations of the Uniform Code of Military Justice.” Everyone in boot camp knows — or quickly learns — that military discipline and effectiveness is built on following immediate superiors’ orders, without question or hesitation. As Colonel Jessop famously said, “we follow orders or people die.” Under Articles 92 of the Code of Military Justice, failure to follow a lawful order can be a crime.
Military courts have also made clear that soldiers remain personally accountable for their actions even when following the orders of a superior. For example, maltreatment of prisoners is a crime under Article 93 and international law. Just as disobeying a lawful order is a crime, following an unlawful order may also be a crime. Members of the military obey and disobey orders at their risk. Superior officers and military courts make the final decision on whether an order was lawful. How does one assess whether an order is illegal? Some examples are or should be clear. Abu Ghraib. My Lai.
Love Thy Neighbor, Woodcut, 12" x 24", Richard J Van Wagoner, Circa 1970, Courtesy Van Wagoner Family Trust**
As for the conduct of US agents at the border whose instructions flow from Stephen Miller’s office at the White House to the Oval Office with Individual-1’s ardent approval, there ought not be much to debate. Should employees of the Executive Branch of the United States government and its military follow orders that violate fundamental human rights, encroaching into crimes against humanity? Of course not, and if they were ever charged with those crimes, the “I was just following orders” defense wouldn’t fly. The bigger fight would be whether the conduct was criminal in the first place. Family separation. Cages. Inhumane conditions. Holding them indefinitely. Maltreatment. See 18 U.S.C. §§ 1091, 1092, 1093 concerning crimes against national, ethnic, racial and religious groups. Section 1092 makes clear that federal law does not preempt this area of law, meaning state-law violations can be prosecuted. And the pardon powers — Sheriff Arpaio — wouldn’t apply.
It appears Individual-1 and an overwhelming percentage of what once was the Republican Party give an enthusiastic thumbs up to the inhumane maltreatment of the people the United States is taking into custody at the border and for whom the United States has assumed responsibility, especially if the maltreatment plays well politically and feeds irrational fear and overagainstness. With religious fervor and justification, they are unleashing what those goddamn liberal elites forced them collectively to bottle up for much too long: a flash flood of dehumanization reminiscent of America’s darkest periods and a torrent of racism.
As the underlying principle of his immigration policy, Individual-1 is leading the full-frontal revival of white nationalism. He is orchestrating the violation of human rights as both a cruel means to an end and a cruel end in itself. Word is his approval rating jumped five points after he tweeted that four American members of Congress, all women, Black and Brown, should “go back” to where they came from. He is correct that “many people agree” with his racist assaults. Those are people whose morality flows into and from a rabid, unhinged collective of ignorance and inhumanity. Because of an irrational fear of losing their privileged status — and never having been the object of racial intolerance and invidious discrimination — his base chooses and is determined to remain ignorant. Their need to defend Individual-1 and the defenses themselves are equal parts immoral, benighted and abhorrent. I digress.
Individual-1 would be unable to commit crimes against humanity and carry out his racist policies without an army of willing enablers, from his cabinet on down to the boots on their necks — and McConnell, of course. To misquote Colonel Jessop, “We follow orders and people die.” I understand the impracticality of what I am suggesting. Those who win the war are never prosecuted for their crimes. This justice department under this attorney general and this president won’t be charging anyone with crimes for having followed an illegal order issued by this administration. I hope and expect the statute of limitations will not have run by the time someone gives this a fresh look. Someone should be held to account.
*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com
**Richard’s list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers