TIME writer Charlotte Alter reported a brief exchange between an American citizen and a U.S. border patrol officer.
When U.S Citizen asked a border patrol supervisor why they detained his fiancé, the answer was: “just following orders.” #muslimban
— Charlotte Alter (@CharlotteAlter) January 29, 2017
Twitter is not a venue conducive to nuance, careful and contextual reporting, or thoughtful dialogue. The quote is obviously salient, and inflammatory, because it is evocative of the so-called “Nuremberg Defense,” “Befehl ist Befehl.” (Literally, “an order is an order.”) The defense was named because it was evoked regularly at the Nuremberg Trials, where German soldiers testified that they had been given orders; most famously in the trial Adolf Eichmann. (It is also extensively, and more heatedly, discussed in literature on the Vietnam War.) The defense is considered ameliorating, rather than exculpatory; in short, it does not deny complicity, but merely limits the scope of punishment against the accused. I’ll get into the legal and moral logic of that in a bit.
The purpose of this post is to advance, in a public domain, what is an important and under-discussed philosophical argument on the duties of public servants charged with enforcing the law, with following orders either put forth by an institutional structure or a direct supervisor.
I almost didn’t write this post, for two reasons.
The first is that comparisons to Nazism are hackneyed and overused. As the grandson of a Holocaust survivor and a refugee from Nazi occupied Czechoslovakia, I often find them personally offensive, as an attempt to exploit the deaths of my family members for political gain or a cheap rhetorical push. In general, I find such uses distasteful and irrelevant.
The second is that the comparisons are often factually bad, fraught with important disanalogies and important points of interest that ought to inform both commentary and activism. It is important to get the course of the discussion right, to treat difficult moral issues with some deference to their peculiarities, and hamfisted analogies often fail spectacularly.
I overrode both of those reasons for a simpler, and morally prior, reason: While public ethics is often difficult, policy complicated, decisions complex, this is not such a moment. The enforcement of contemporary American immigration policy, as sort forth in Executive Order and “clarified” by White House staff, is not complicated. It is exceedingly morally simple.
Moral obligations consist in two layers that often come apart in various interesting and important cases. (1) An agent(s) makes a choice to act in a particular sort of way, and (2) an agent(s) has the opportunity to diverge from a course of action brought about either by a prior choice or by circumstance. (Some views on free will deny particular components of this; none but the most cynical deny all of these.) This is not an often acknowledged heuristic, because many of our actions consist of both of these two things taken together.
It is generally recognized that instances of (1) resulting in some harm incur a greater moral accountability than failed instances of (2) resulting in the same harm. Foot, Thomson, Kamm, and a compendium of others observe this in trolley cases; writing on beneficence dominates the history of theoretical ethics. Across this wide range of views is a similarly wide range of plausible explanations for this differentiation between actively causing harm and obligations to beneficence.
This is part of why “Befehl ist Befehl” is ameliorative rather than exculpatory. At the absolute moral maximum, complying with an order is an instance of failing to intervene; that carries some guilt, though not as much as setting in order the course of events that result in the harm.
Much of the literature on “Befehl ist Befehl” concerns just war scenarios, rather than instances of civilian law enforcement. Many suppose that there is a clear distinction between the two sets of cases; I’m not convinced. Estlund uses both civilian law enforcement examples and soldiers in his discussion, and elaborates the parallels very well.
In the classic thriller The Fugitive, Sam Gerard (Tommy Lee Jones) confronts the titular fugitive Richard Kimble (Harrison Ford). Kimble says, “I didn’t kill my wife.” Gerard responds, iconically, “I don’t care.”
The eminent ethicist David Estlund may be seen as coming to the defense of Gerard, here. Estlund, who offers a rather conservative commentary on this issue (relative to mine, at least), writes:
“… when the political and institutional process producing the commands is duly looking after the question of whether the war is just, the soldier would be wrong to substitute his own private verdict and thwart the state’s will.”
On this point, I think Estlund is mistaken. (Though the position he advocates is compelling.) However, even if his view turns out to be right, a conservative theory like Estlund’s still precludes executive action of the kind in this new immigration policy, “The soldier is not exonerated simply because he was following orders.” The mechanisms that enact the policy themselves have to be generally just, and unilateral executive action is not defensible on those grounds.
Contra Estlund, an officer of the law should care. Violations of (2), failures to prevent a preventable harm, are important; when agents of the law don’t care about whether the law is being used to serve justice and fail to make decisions in accordance with their own best judgment, then they fail, morally, and those moral failings are marked in their own ledger.
Estlund and I agree that an officer of the law (or a soldier at war) is in a difficult position even without the burden of making decisions about what is and is not just, what is and is not appropriate; Estlund’s goal is to lessen the moral burden through some deference to a just system of laws, but even with that lessened burden, the system to which one defers must be just. That is not the case here, and so there is no moral cover.
When the border officers refuse to let men and women speak to an attorney (including undocumented immigrants), coerce them to relinquish legal status, fail to grant due process, or otherwise fail to do what justice requires (irrespective of their orders) they are morally accountable for their actions.
Of course, the astute observer will point out that law enforcement officers also ought to be aware of the stay implemented by federal courts; in this case, there is privileging of a certain set of orders over another.
I agree with colleagues who have commented variously that the Trump administration is guilty of gross moral failure (not to mention failure of public policy, and foreign and public relations), but it is similarly important to note the failure of those entrusted with obligations to do what is morally right and required, and to ask of those so entrusted that they do better, that they meet the often difficult standard of acting in accordance with what is just, rather than just Was ist ein Befehl, what is an order.