Mohamed: Abuse by Authority: The Hidden Harm of Illegal Orders

Saira Mohamed (Univ. of California, Berkeley - Law) has posted Abuse by Authority: The Hidden Harm of Illegal Orders (Iowa Law Review, forthcoming). Here's the abstract:

When a leader orders a subordinate to commit a crime—to kill anything that moves, as at My Lai; to extract information no matter what it takes, as at Abu Ghraib; to execute prisoners of war, as at Biscari—how should the law and a society respond? Often we ignore the leader and blame the “bad apple” subordinate who failed to do the right thing. Or, when a leader is punished, domestic and international criminal law regard them in relation to their subordinate’s offense, either as an accomplice or perhaps a perpetrator; the order simply offers the pathway to rendering the superior a party to the crime. The law says nothing, however, about an entire dimension of wrongdoing that this Article highlights: The illegal order is an abuse of the authority the leader holds over their subordinates, a misuse of control over another, a betrayal of what was supposed to be a relationship of protection, an infliction of suffering on those who—even if they themselves become perpetrators legitimately subject to punishment—are also victims of their leaders’ violation of the duty to ask of them only what is right.

This Article urges a new framing of the illegal order as a wrong by the superior against the subordinate. Focusing on the military, and drawing on fields of knowledge within the law and beyond it, the Article argues that international and domestic law should acknowledge the superior’s order not only as a link to the crimes of the subordinate, but also as an abuse of the superior’s relationship of authority over the subordinate. Explaining that the military obligation of the superior toward the subordinate is both legally founded and legally protected, the Article exposes the legal and cultural obsession with the subordinate’s ostensible autonomy as but a convenient distraction, one that relies on traditional (and contested) criminal-law assumptions of individual choice and insistence that no person has obligations to another. Further, scholars’ and practitioners’ accounts of the law of war increasingly acknowledge that soldiers are not mere instruments, but individuals, separate from the state and the superiors they serve. This shift opens the door to this Article’s proposed recognition of the harms subordinates experience when they are ordered to commit a crime.

Global in its reach and immediate in its application, this Article aims to reorient conceptions of the relationship between superior and subordinate, to elucidate how perpetrators of crimes can also suffer injuries by those who exert control over them, and to excavate and upend conventional assumptions about authority and autonomy.