Institutional ethics drawing lines for militant democracies

Joint Force Quarterly, July, 2009 by Harvey Rishikof

At his 2009 confirmation hearing for Attorney General of the United States, Eric Holder was asked whether he would pursue a criminal investigation of the interrogation programs of the Bush administration. He responded, "Senator, no one's above the law, and we will follow the evidence, the facts, the law, and let that take us where it should." (1) But he added, quoting Barack Obama, then-President-elect, "We don't want to criminalize policy differences" and finally pleaded for time to study the matter. "One of the things I think I'm going to have to do," Holder added, "is to become more familiar with what happened that led to the implementation of these policies."

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Many articles on ethics begin with the notion that the term ethics derives from the Greek word ethika, from ethos, meaning "character" or "custom" based on individual behavior. From this we deduce principles or a standard of human conduct, often termed morals (from the Latin mores, "customs"). By extension, the study of such principles becomes the foundation of moral philosophy. The focus or unit of analysis is the individual, and the question is, "What is the right thing to do?"

In the vast literature of personal responsibility, few works ever discuss the concept of "institutional ethics," or how institutions should act to produce rules of behavior for themselves and those under their jurisdiction. This concept, however, would not have been alien to our Founding Fathers. A cornerstone of the Federalist Papers on how to avoid tyranny was the struggle among and between institutions. One of the most quoted but least analyzed passages from James Madison, from the perspective of institutional ethics, is in Federalist No. 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, which states:

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

These "auxiliary precautions" were the different institutions of power, or the separation of power, by which the different departments standing on constitutional means would resist encroachments from each other. Our federalism itself is an institutional battle of the appropriate power owed to each sovereign. These encroachments are politically charged discussions since constitutional institutional prerogatives are at stake. The struggle determines the notion of who can decide, as an institutional matter, what the "right thing" to do is. This important insight was underscored by Judith Shklar, the acclaimed political philosopher, in The Faces of Injustice, in which she noted that the "line of separation between injustice and misfortunes is a political choice, not a simple rule that can be taken as given. The question is, thus, not whether to draw a line between them at all, but where to do so in order both to enhance responsibility and to avoid random retaliation." (2)

The political choice of where to draw the line sets public policy, which in turn establishes public morals and sets public responsibility for individuals. The resulting political framework creates criminal and civil liability for public officials and servants of the state. The tensions among our ideals over justice, necessity, individual responsibility, and authority are raised by these hard cases of line drawing, particularly when national security is involved.

To explore this puzzle, this article raises the question, "How do institutions discharge their ethical duties to shape public responsibility?" The three following examples address this question.

The first example contrasts the understanding of command responsibility under our Uniform Code of Military Justice (UCMJ) and the international convention Protocol I. The second reviews the Israeli Supreme Court decision on its approach to targeted killing. Finally, to round out the discussion of institutions and individual liability, the third examines how Congress should approach the debate over alleged past violations of the law of interrogation.