Talking heads--self-styled or considered experts--making the rounds on cable news shows to comment on the Senate Torture Report make such statements as: "They were only doing what we asked them to do." "We had a presidential finding." "We had legal assurances that these activities were lawful." "I was only a lieutenant colonel."

Why is it that no one references the Geneva Convention and the Nuremberg Principles? Common Article 3 of the Geneva Convention prohibits "cruel treatment and torture." Cruel treatment and torture are listed among the "grave breaches," that is, the most serious of violations of the norms for warfare. Principle III of the Nuremberg Principles states that no "Head of State" or "responsible Government official" can claim exemption from their responsibility under International Law. Principle IV states: "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." Principle VI does not use the term torture; it uses a more general term--"ill treatment of prisoners"--in its listing of war crimes. Parsing the term torture is not supported by the language of these norms. Neither is the use of a misleading construction, such as "enhanced interrogation technique."

Army basic training in 1970 included instruction on this subject. It was made very clear that each individual soldier is personally responsible for his actions and for determining the propriety of any proposed course of action. One could not claim the authorization of a superior officer or a governmental official, e.g. the president of the United States, in an attempt to avoid personal and individual legal responsibility. This applied not only to a lieutenant colonel, O-5, but also to the lowest private, E-1. It was also made clear that exercising this responsibility would very likely place the individual soldier in a precarious position. Compliance with an order to engage in an action, which one determines to be a violation of the Geneva Convention, exposes one to criminal sanctions. Refusal to comply with the direct order of a superior also exposes one to criminal sanctions. The implied, that is, not clearly stated, remedy to this dilemma is to insure that everyone participates in the activity, so that all have a shared self-interest in preventing disclosure. Group identity and group cohesion are the keys to personal survival and the avoidance of legal consequences. This proposed remedy may reduce the risks of legal consequences, but it may do nothing to protect one from the moral consequences.

Curiously, the qualifying phrase "provided a moral choice was in fact possible to him" wasn't included in the 1970 discussion. What would the circumstances have to be wherein "a moral choice" is "not possible"?