Institutional ethics drawing lines for militant democracies

Joint Force Quarterly, July, 2009 by Harvey Rishikof

How does one escape the ethical dilemma? For Walzer, again, action under a supreme emergency rests on a communitarian doctrine of how we view our group identity and our collective self-understanding. In the United States under the Constitution, it is the political community that frames our collective identity, and it is our collective political institutions that must resolve the dilemma--the President, Congress, and Supreme Court. We cannot defer the decision to one power; although public policy creates our public morals, we must shoulder public responsibility collectively. This is how democracies at war should draw public ethical lines, as each institution also should to the extent of its constitutional power. A political community, as Edmund Burke properly understood, is a contract among "those who are living, those who are dead, and those who are yet to be born." (13) Institutional ethics and rule of law must prevail when force is projected.

The author thanks Trudi Rishikof for her assistance in preparing this article.

Notes

(1) See Scott Shane, "Remarks on Torture May Force New Administration's Hand," The New York Times, January 16, 2009, available at .

(2) Judith N. Shklar, The Faces of Injustice (New Haven: Yale University Press, 1990), 5.

(3) See Victor Hansen, "What's Good for the Goose Is Good for the Gander: Lessons from Abu Ghraib: Time for the United States to Adopt a Standard of Command Responsibility Towards Its Own," Gonzaga Law Review 42, no. 1 (2006-2007).

(4) In re Yamashita, 327 U.S. 1 (1946).

(5) As noted by Hansen, scholars still debate what the case means for command responsibility. Some have contended that Yamashita created a strict liability standard, while others maintain that the Yamashita standard is that a commander may be held criminally liable if he knew or should have known of the commission of war crimes by his forces. Still other scholars have contended that the Yamashita standard is that liability should attach if the commander knew or must have known of the war crimes. Finally, others contend that the real issue for the tribunal was General Yamashita's total ignorance and complete delegation of authority, which created an unacceptable risk of future harm for future crimes. See Hansen, 23-24.

(6) See The Public Committee Against Torture in Israel, et al., v. The Government of Israel, et al. (HJC 769/02, December 11, 2005, Para. 60), available at <http://elyon1.court.gov.il/Files_ENG/02/690/007/ a34/02007690.a34.pdf>.

(7) Ibid., para. 50.

(8) Ibid., para. 61.

(9) Ibid., para. 56.

(10) See "Executive Order--Ensuring Lawful Interrogations," January 22, 2009, available at <www.whitehouse.gov/the_press_office/ EnsuringLawfulInterrogations/>.

(11) See Walter Pincus, "Waterboarding Historically Controversial," The Washington Post, October 5, 2006, A17, available at <www.washingtonpost. com/wp-dyn/content/article/2006/10/04/ AR2006100402005.html>.

(12) See Michael Walzer, Arguing about War (New Haven: Yale University Press, 2004), chap. 3, "Emergency Ethics."

(13) Edmund Burke, Reflections on the Revolution in France (London: J.M. Dent, 1919), 93, qtd. in Walzer, 14-15.

Harvey Rishikof is Professor of National Security Law and former Chair of the Department of National Security Strategy at the National War College.