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Abuse defense: ‘Following orders’

With President George W. Bush saying Wednesday that those responsible for abusing Iraqi prisoners will be punished, what about the defense raised by some who are already accused by the military — that they were just following orders?  And what about the civilian contractors who might be involved: How would they be punished?

Nazis accused of war crimes said it at Nuremberg — “I was only following orders.”  Soldiers like Lt. William Calley accused of atrocities at My Lai in Vietnam tried it, too.

And now, lawyers for some of the Army reservists charged with abusing prisoners in Iraq say they’re innocent for the same reason.  According to Gary Myers, “He did attempt to find out if what he was doing was correct, and he was told that it was.”

Myers represents Staff Sgt. Ivan “Chip” Frederick, who is accused of mistreating and assaulting Iraqi prisoners.

In fact, military law has long recognized that following orders is a legitimate defense — but not if an order was illegal or if “a person of ordinary sense and understanding would have known it was illegal.”

So what should a soldier do when in doubt?  Military courts have said they should assume orders are legal and follow them.

And defense lawyers say that’s what the accused soldiers did at Abu Ghraib prison. 

“That means that there is the presumption of legality and that the individual who disobeys the order, disobeys it at his own peril,” said Myers.

Frederick, his lawyer says, questioned prisoner treatment but was told it was fine.

But many military law experts say trainers drum into every new recruit that illegal orders are not to be obeyed.  They say the abuse at Abu Ghraib was so obviously wrong, there shouldn’t have been any gray area.

Army investigators say prisoners weren’t just humiliated. They were also physically abused — punched, slapped and kicked.  Military police jumped on their naked feet.  And investigators said a male MP guard had sex with a female prisoner.

NBC asked Gregory Noone, a former military lawyer, if orders to engage in that kind of conduct could seem even remotely legal. “In my opinion, I would have to say no," said Noone. "You’re telling your MP’s that you’re supposed to beat people and undertake other techniques that would literally hurt the individual?”

Lawyers for Frederick say his commanders created a climate at the prison that permitted the abuse.  Following orders, they say, will be an important part of their defense.