The soldiers accused of abusing Iraqi prisoners at Iraq's now infamous Abu Ghraib (search) prison likely will argue that they were just following orders, but military legal experts said such a defense is not a good way to escape punishment.
Investigators are trying to determine if the orders for troops to participate in abusive activities came from high up in the military chain of command. The story could have lifted from "A Few Good Men," the film in which two soldiers are on trial for obeying orders to give a comrade a "Code Red," an order that eventually killed him.
But while the soldiers' defense in the movie earned them a slightly more lenient punishment, the defense of superior orders may not bode as well in real life.
"You obey orders when they're given to you with the presumption that orders are lawful," said William G. Eckhardt, a military law expert at the University of Missouri-Kansas City. But "when you're privileged to put on a uniform of this country, one doesn't abandon one's obligation to act like a human being — being true to God and country."
Members of the armed forces are not supposed to obey unlawful orders, experts said.
"You're told that and that is drilled into your head when you go into the Army or any military service," said Van Hipp, a former deputy assistant secretary of the Army. But "one thing you can't teach is common sense and you can't teach decency."
'It's Not Just a Defense'
Lawyers for some of the defendants, such as Pfc. Lynndie England (search), Spc. Charles A. Graner Jr., and Sgt. Javal S. Davis, say their clients were only following orders when they took part in alleged abusive acts at the prison.
"It's not just a defense, it's the absolute truth," Peter Bergrin, Davis' attorney, told Foxnews.com.
Graner, Davis and Staff Sgt. Ivan L. Frederick declined to enter pleas in their cases; pre-trial hearings for all three will be held June 21. On Wednesday, Army Spc. Jeremy Sivits became the first soldier involved in the scandal to plead guilty.
Davis claims Abu Ghraib was a place where inmates regularly assaulted the guards and that soldiers were told that the detainees needed to be "softened up" and their living conditions "were too good."
"As far as following orders ... the young soldier was told [allegedly by military intelligence], 'look, you have to loosen them up or soften them up for us — we're not getting enough, not enough intelligence ... if you don't soften them up, a lot more contractors and civilians are going to die and you're going to be held responsible,'" Bergrin said.
At the center of the controversy is exactly who was in charge of interrogating prisoners. Some argue that military intelligence and agents from the likes of the CIA were in charge.
"Our position is, when you're given an order to loosen them up or soften them up, you see the permissible interrogation techniques and methods, how is a young soldier supposed to know where to draw the line when they've gotten zero training?" Bergrin continued.
"My client questioned the morality of what was being done but he was told ... 'You are to follow orders, nobody is being permanently ... or even temporarily injured.'"
England's previous lawyer, Giorgio Ra'Shadd, had claimed that no prisoner was abused but that his client was "following directions" when she did things like holding a leash with an Iraqi prisoner at the other end of it.
"The CIA said 'do it.' Done," Ra'Shadd told one newspaper before he was fired by England.
The Lessons of My Lai, Nuremberg
But history has shown that the "following orders" defense is faulty.
Eckhardt was a prosecutor in the My Lai (search) courts-martial of 1970, where a few U.S. soldiers who were part of Charlie Company were tried for their role in the March 16, 1968 massacre of as many as 500 unarmed civilians — old men, women and children — in My Lai, at the time part of South Vietnam.
In the end, only platoon leader William Calley (search) was found guilty. The defense strategy included the argument that Calley was merely following orders to kill civilians.
"I felt then — and I still do — that I acted as directed, I carried out my orders, and I did not feel wrong in doing so," Calley testified.
Calley was found guilty of premeditated murder. The Nuremberg Trials (search) held after World War II also highlighted the theme that this defense isn't sufficient.
"If the person for some reason knew it was illegal ... and still obeyed it, he could not use the defense of obedience of orders," Eckhardt said. "Do you really need to bring a bunch of intelligent people into the room and tell them not to shoot babies?"
Although troops have an obligation not to follow unlawful orders, the soldiers' lawyers say the line between lawful and unlawful was blurred in a prison environment that, by October 2003, was "nothing but an interrogation center."
"Of course" his client followed orders regarding the prisoners, said Ret. Marine Lt. Col. Guy Womack, who is representing Graner.
"They were directed to follow the instruction of military intelligence — as any military serviceman would, they complained ... they asked for clarification and they were told by both the military chain of command and the intelligence command" to comply, Womack said.
But "he would defy it if he knew it to be illegal. American servicemen and women are obligated to follow all orders unless it is clear to them the order is unlawful," he added, saying they face a court-martial if they disobey.
Experts say the prison imbroglio is a prime example of why part-time military men and women shouldn't be playing jail warden during wartime.
"A well-trained regular [military person] ... and this is the problem with using reserve and guard units on these missions ... knows that if they see something that others are doing that's wrong, they are obligated to report it," said Ret. Marine Lt. Col. Oliver North (search), who is also the host of Fox News' "War Stories."
"No one is going to be more stunned than I am if they find an officer who ordered that treatment ... and if they do, that officer should receive the harshest penalty of all," said North, who has traveled several times to Iraq and has visited Abu Ghraib.
"The harshest judgment should fall on those who were immediately responsible for the lives and safety of the individual soldier and the prisoners under them."
Added Hipp: "We've got to learn a lesson, get the U.S. military out of the prison business."
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