How do military personnel handle illegal orders in war?

By Mark Sauer and Rick Rogers
San Diego Union-Tribune
Oct. 29, 2006

The notion is drilled into his skull from the moment a prospective Marine first gets his locks sheared to the time his boots hit the ground in a war zone like Iraq: You will obey orders.

But what if the order is to commit kidnapping and murder?

That's what Marine Corps prosecutors allege in the case of eight Camp Pendleton-based servicemen accused of killing a civilian on April 26 in Hamdaniya. The charges could result in life imprisonment for some of the suspects.

Two of the defendants, including an Encinitas Marine who testified Thursday, have corroborated the prosecution's assertion that a sergeant told his unit to abduct and execute a suspected insurgent.

Legal analysts, combat veterans and a former Marine drill instructor said military law is clear: An illegal order, especially one likely to result in injury or death, should not be obeyed.

But they caution that civilians 9,000 miles removed from the bloody chaos of Iraq may not understand the enormous psychological pressure, and fear for safety, bearing down on a young Marine to go along with what his leader and buddies decide.

“Nothing in civilian life can prepare you for the moment when a guy who may have saved your life one day asks you to do something illegal the next,” said Jon Soltz, a captain in the Army Reserve and an Iraq war veteran.

According to testimony early this month from Petty Officer 3rd Class Melson J. Bacos, Sgt. Lawrence Hutchins III masterminded the plot resulting in the death of 52-year-old Hashim Ibrahim Awad.

Every member of his squad agreed to go along, said Bacos, a Navy corpsman who said he witnessed the killing as a medic for the Marines.

The men failed to find their intended target, alleged insurgent Saleh Gowad, at his home. So they went next door and abducted Awad, according to the charges and Bacos' testimony.

The unit's members then staged a firefight by firing their rifles, along with a stolen AK-47 rifle, multiple times. The stolen AK-47 and a shovel were left with the victim's body in a shallow hole to make it look as though Awad was burying a roadside bomb, prosecutors allege.

Pfc. John J. Jodka III, the Encinitas Marine, largely corroborated Bacos' account this week. He admitted to shooting at the victim, but didn't know if his bullets struck him.

Awad had takenat least 13 rounds in the head and chest, court documents show.

The idea of Marines agreeing to testify against their comrades might surprise some people. That's because the fierce loyalty and tight bonds among troops in combat are all but boundless, said Vic Ditchkoff, a former Marine drill instructor.

On the other hand, he said, Marines are taught that if they follow an order they know is unlawful, they are as guilty as the man who issued it.

The importance of ethical conduct starts in Marine boot camp, where recruits are taught moral and physical courage during their 13 weeks of basic training. The recruits begin to treat one another as friends and family.

Later in combat, they “will sometimes commit the most dastardly deeds to protect these friendships,” said Ditchkoff, president of the USMC Drill Instructors Association, based at Parris Island, S.C. It has a chapter in San Diego.

“Maybe your buddies suddenly will not watch your back if you squeal,” he said. “There are many cases in government files of this sort of thing. You'd be surprised how many friendlies are killed by their own troops. Fragging is what it's called, and it's very easy to do when rounds are flying.”

David Brahms of Carlsbad, a retired Marine brigadier general and attorney for one of the Hamdaniya suspects, said military law “does not let you hide behind the defense that you were just following orders.”

In combat unit
But he said he believes there's probably no other situation comparable to the decision to follow orders in a combat unit.

“You follow orders because you want to live, and you've got the best chance to live by sticking together. This is not a debating society. Those who question a lot of things and think too much end up having their names engraved on a black wall in Washington, D.C.,” Brahms said.

Orange County attorney Tom Umberg, a former military prosecutor and colonel in the U.S. Army Reserve, said the military focuses heavily on the chain of command and responsibility.

“The sergeant in this incident may have a very different view (from Bacos and Jodka) about how this thing evolved, but he is the senior person there,” Umberg said.

The argument that troops were simply following orders was made after the My Lai massacre, said Paul Kurtz, referring reference to the killing of hundreds of Vietnamese civilians by U.S. soldiers in March 1968.

Kurtz is chairman and founder of the Center for Inquiry Transnational, an Amherst, N.Y., think tank concerned with war and other questions of morality.

To Kurtz, there is a link between the current spate of criminal charges against U.S. military personnel and the ferocity of Iraq's urban battlefields, where the enemy is as unrecognizable as the mission to weary Marines.

“This situation . . . plays a role in the tragedies we are seeing. These servicemen are innocent kids thrown into a maelstrom,” said Kurtz, 80, a World War II veteran whose grandson is a two-tour Marine veteran of Iraq.

By volunteers
In contrast to some other major conflicts in U.S. history, the fighting in Iraq is being conducted by volunteer armed forces that are stretched dangerously thin, suffering from the toll of multiple deployments and compromised by lowered standards for promotion, said Jon Soltz. He is a co-founder of VoteVets.org, an Internet-based group dedicated to electing veterans of the conflicts in Iraq and Afghanistan to Congress.

“You have some guys in charge of combat troops now who do not have the mentality to be in charge, but they're so short of people,” said Soltz, who lives in New York.

“Look at World War II. In that four-year war, members of the Army's 101st Airborne Division never saw combat until D-Day (June 6, 1944) and the war (in Europe) was over less than a year later. Some Marines from Pendleton are in their third tour in Iraq.”

Combat can be a moral crucible, but in the end, every service member knows what is ethically right, said Maj. Doug Zembiec, a company commander in Fallujah during the first battle for that city in spring 2004.

“There is no doubt that people in combat are under a lot of stress and pressure – they are getting shot at and bombed every day. But that is never an excuse for unlawful conduct,” said Zembiec, now assigned to the Marine Corps in Washington.

“We know as leaders that one incident can destroy the mission no matter how many bad guys are killed,” he said. “One incident can cast a bad light on the nation and Marine Corps.”