Dealing with ethical and/or legal issues in operations

[pbi]

OK, "ethical".  Are we talking Utilitarianism?  Kantianism?  Egoism?  Consequentialism?  Hedonism? Stoicism? Deontologicalism?

Not really uniquely any of the above, IMHO (not having a Philosophy Degree...). Military ethics may draw elements from other sources, but as befits a set of professional ethics they are unique to us. The best explanation I've read of what military ethics are, and how they function in action, is found in great detail in the book "The Warrior's Way", written by Dr Richard Gabriel (available from CDA as a CF publication). (You are probably familiar with him: a former US Army officer, he has been writing and lecturing on the subject of military ethics since the Vietnam era. I first heard him speak at a Bde Officers Study in Wainwright back in the 1980's. I've since heard him speak several times at CFC when I was working there, and had the pleasure of chatting with him. He is quite far from an airy-fairy intellectual, or an ivory-tower philosopher) I think this series of extracts lays it out pretty much the way I understand it to work (author's italics):

"...It is also clear that different professions require different precepts to guide ethical behaviour. A list of precepts of what one ought to do as a military professional would differ significantly from a list of precepts of what one ought to do as a member of the legal or medical profession...One of the primary characteristics of a profession is that it requires the observance of special values and behaviour not generally sharetd by the larger society or even by other professions...Ethics is, therefore, a social enterprise more concerned with what a soldier does (actions) than what he or she is (character) and inevitably concerns what one does or fails to do to another person or group of persons...But neither consequences nor intentions are, by themselves, sufficient to make an action ethical or unethical. Thus, a soldier may resort to torture in order to obtain information that he/she believes might save lives. In doing so, the soldiers intentions might be good, but the means chosen and the consequences of his/her actions are not..."

So, ethics is not just about what you think or believe: it's about what you do, especially when you find yourself in a situation in which regulations are lacking, unclear or conflicting, or personal beliefs clash with how you understand the situation.  I joined the Army about a decade before you did, and I've served continuously since then. I don't know about your experience, but I'm very sure that in my time I've seen people do wrong things, counsel (or order) others to do wrong things, and I've done things that I knew then or that I realize now, many years later, were unethical. If the people involved (including me), had a more strongly developed sense of professional military ethics I believe that most of these things would never have happened. I don't need to be convinced of the value of professional military ethics, even if I lack the academic background to fully appreciate the philosophical derivation of some aspects of them.

We need them, we've got them, and we should live by them.

Cheers

 

[Greymatters]

I would note that some people in this discussion are confusing the three terms of 'legal' 'ethical' and 'moral'; legal means to abide by the written (and unwritten) laws of society (or organization); ethics refers to societal and personal beliefs in the differences between 'good' and 'bad'; morals refers to your own personal belief system and choices (actions) of what is right and what is wrong.

i.e.
Cannabalism
- its illegal to eat someone (and against food and health regulations)
- its bad to eat people, and most religious belief systems echo this sentiment
- we choose not to eat people as part of our moral beliefs, unless we're really starving on the top of a mountain in Chile, in which case you arent worried about ethics or laws

 

[vonGarvin]

Ethics/Morals are pretty well interchangeable.  Right/Wrong, Good/Evil, it's all pretty well the same.  But you make the point I am trying to make: just behave in a legal manner, subordinating your moral code to the Law, just as I do.

 

[vonGarvin]

So, ethics is not just about what you think or believe: it's about what you do, especially when you find yourself in a situation in which regulations are lacking, unclear or conflicting, or personal beliefs clash with how you understand the situation.  I joined the Army about a decade before you did, and I've served continuously since then. I don't know about your experience, but I'm very sure that in my time I've seen people do wrong things, counsel (or order) others to do wrong things, and I've done things that I knew then or that I realize now, many years later, were unethical. If the people involved (including me), had a more strongly developed sense of professional military ethics I believe that most of these things would never have happened. I don't need to be convinced of the value of professional military ethics, even if I lack the academic background to fully appreciate the philosophical derivation of some aspects of them.

We need them, we've got them, and we should live by them.

Cheers

You make a very good argument, pbi, but I suppose my problem with the CF saying "do the right thing", I only ask "what *is* the right thing?"  For some ethical codes, intent plays a part of deciding what's "right/good".  For others, it's the act itself.  For still others, it's all about the consequences.  In the lack of such clarity on the part of the CF, I argue that in spite of their effort to focus on ethical behaviour (eg: the acts), we should focus instead on obeying the law.  Period.
I too have seen some things in the past that were "wrong/evil", but in every case, an argument could be made that they were also illegal.  At least that was my experience.

I agree on a philosophical level that there is "something", but I am not a fan at all of this effort by the former CLS to tell us what's right and what's wrong.  This is why I instead say "Obey the law".  Yes, there are times when the law isn't clear, but that's when you have to trust your gut,  based on experience.  Is that applying a certain "code"?  Maybe, but how to codify it?

 

[Greymatters]

Ethics/Morals are pretty well interchangeable.  Right/Wrong, Good/Evil, it's all pretty well the same.  But you make the point I am trying to make: just behave in a legal manner, subordinating your moral code to the Law, just as I do.

Well we'll disagree on that one point - ethics and morals may be interchangable in your work environment, but they do have distinctly different meanings in my environment...

 

[McG]

You make a very good argument, pbi, but I suppose my problem with the CF saying "do the right thing", I only ask "what *is* the right thing?"  For some ethical codes, intent plays a part of deciding what's "right/good".  For others, it's the act itself.  For still others, it's all about the consequences.  In the lack of such clarity on the part of the CF, I argue that in spite of their effort to focus on ethical behaviour (eg: the acts), we should focus instead on obeying the law.  Period.

Obeying the law does need to be the primary guiding principle.  But, there are many cases where soldiers may have multiple paths open and all of which are legal.  Ethics is one of the tools for them to answer your question which I have underlined.  In LoAC, sometimes it is not even clear what is legal, and soldiers must be able to rationally weight acts, consequences, risk, objectives, etc.  Necessity and Proportionality are not prescriptively defined, but the exercise of due diligence in appling ethical principles will make decisions legally defensible.  Soldiers cannot do this if they don't know or understand any ethical decision making model.  They will be in an even better position to decide what is right (and thus what is also legally defensible) if they understand a few decision making models and the trade-offs of each.

 

[vonGarvin]

Well we'll disagree on that one point - ethics and morals may be interchangable in your work environment, but they do have distinctly different meanings in my environment...

From my copy of The Concise Oxford Dictionary:
"ethics n.pl (also treated as sing.) 1  the science of morals in human conduct.  2 a moral principles; rules of conduct.  b a set of these (medical ethics)."

"moral philosophy: the branch of philosophy concerned with ethics".


So, those two definitions, and that scrap of paper hanging on my wall, tells me that they are the same and interchangeable. 

Obeying the law does need to be the primary guiding principle.  But, there are many cases where soldiers may have multiple paths open and all of which are legal.  Ethics is one of the tools for them to answer your question which I have underlined.  In LoAC, sometimes it is not even clear what is legal, and soldiers must be able to rationally weight acts, consequences, risk, objectives, etc.  Necessity and Proportionality are not prescriptively defined, but the exercise of due diligence in appling ethical principles will make decisions legally defensible.  Soldiers cannot do this if they don't know or understand any ethical decision making model.  They will be in an even better position to decide what is right (and thus what is also legally defensible) if they understand a few decision making models and the trade-offs of each.

This is all well and good, and I understand the need for "something" more than the law; however, given the CF's piss-poor attempt (IMHO) to tell me what to think, well, as I stated before, it's none of their business what I think or believe.  I'm certain, however, that the CF does care very much about how I act.

But you raise the very issue: how to deal with a dilemma, which the current "Diogenes" program doesn't even define *that* correctly.  Perhaps I am having more issues with the issued program vice the need for us as professional military members to act, no, to BE good.  (And I don't mean "perform well", but "be good", and from us "being good", we will "do good" with "good" consequences.)
In nothing else, they could have gotten someone with a degree in philosophy to draft their program.  And no, I'm not volunteering to do so.  But I will expand my thoughts in a subsequent post.

 

[vonGarvin]

I think that our "code of conduct" is sufficient as a guide:

1.Engage only opposing forces and military objectives.
2.In accomplishing your mission, use only the necessary force that causes the least amount of collateral civilian damage
3.Do not alter your weapons or ammunition to increase suffering, or use unauthorized weapons or ammunition
4.Treat all civilians humanely and respect civilian property
5.Do not attack those who surrender. Disarm them and detain them
6.Treat all detained persons humanely in accordance with the standard set by the Third Geneva Convention. Any form of abuse, including torture, is prohibited
7.Collect all the wounded and sick and provide them with the treatment required by their condition, whether friend or foe
8.Looting is prohibited
9.Respect all cultural objects (museums, monuments, etc.) and places of worship
10.Respect all persons and objects bearing the Red Cross/Red Crescent, and other recognized symbols of humanitarian agencies
11.Report and take appropriate steps to stop breaches of the Law of Armed Conflict. Disobedience of the Law of Armed Conflict is a crime

Stuff like this, however, are just dangerously confusing:

Leaders respond quickly and aggressively to signs of illegal or unethical behaviour. Ethical violations are not just mistakes, they are fundamental failings in our profession of arms - Canadian values and our Army values are not negotiable. If we lose our moral purchase and our operational legitimacy, we will lose public trust.

So, I ask, what are "ethical" violations?  As a group, we need those spelled out for us.  If I go by what my priest says, then any sexual activity outside of marriage is "unethical".  (aka "a sin"). 

So, I offer that the Code of Conduct as a guide, and the NDA, Criminal Code, unit orders, etc are the specifics.  In dealing with ethics, you are assigning value to acts/intents/consequences (depending on the ethical philosophy applied).  We don't all share those same values.  That's my problem.

 

[TangoTwoBravo]

I would note that some people in this discussion are confusing the three terms of 'legal' 'ethical' and 'moral'; legal means to abide by the written (and unwritten) laws of society (or organization); ethics refers to societal and personal beliefs in the differences between 'good' and 'bad'; morals refers to your own personal belief system and choices (actions) of what is right and what is wrong.

i.e.
Cannabalism
- its illegal to eat someone (and against food and health regulations)
- its bad to eat people, and most religious belief systems echo this sentiment
- we choose not to eat people as part of our moral beliefs, unless we're really starving on the top of a mountain in Chile, in which case you arent worried about ethics or laws

Your own definitions of ethics and morals do not make a distinction between the two.  Is "good" somehow different from "right?"  Is "bad" somehow different from "wrong?"  You have included personal beliefs in both morality and ethics. 

My read of the literature suggests that the most theorists use the two terms interchangeably.

p.s. editted for grammar  :-[

 

[vonGarvin]

My read of the literature suggests that the most theorists use the two terms interchangeably.

They do.  Things are "Right" because they are "Good", etc.  There are minor and subtle differences; however, those are so minute, that the terms ought to be used interchangeably.

 

[the 48th regulator]

I would note that some people in this discussion are confusing the three terms of 'legal' 'ethical' and 'moral'; legal means to abide by the written (and unwritten) laws of society (or organization); ethics refers to societal and personal beliefs in the differences between 'good' and 'bad'; morals refers to your own personal belief system and choices (actions) of what is right and what is wrong.

i.e.
Cannabalism
- its illegal to eat someone (and against food and health regulations)
- its bad to eat people, and most religious belief systems echo this sentiment
- we choose not to eat people as part of our moral beliefs, unless we're really starving on the top of a mountain in Chile, in which case you arent worried about ethics or laws

As an aside, with regards to Cannibalism. In my religion, Catholicism, we devour the Body and Blood of our Lord.  We even go so far as to use the method of his Murder as a symbol of our faith.

Just a thought, on my part, when you mentioned cannibalism.

dileas

tess

 

[Greymatters]

I was going to mention that in my post, but deleted it as I thought someone might take it the wrong way.  Its an interesting point that a lot of people dont consider...

 

[pbi]

Technoviking: I begin to see that you and I are not so very far apart in our views. Maybe not as close as a "heated agreement", but not polar opposites, either.

You stress that you are guided by the law (in this case military law and regulations, which have their roots in the law of Canada), and that this is sufficient.

I agree that in many cases (in fact, for lots of us, in most cases...) this is in fact sufficient. But I would go further to say that the decision to follow rules: to "obey the law" is in itself an ethical decision when we speak in the military context. After all, unless a gun is being held to your head, anybody can break any rule they like. There might be consequences, true, but you can still choose to break the rule. The ethical course of action is (normally) to obey the rules. As you pointed out, it is difficult to think of too many situations in the military in which actig unethically is not also acting illegally.

But there lies (IMHO) the danger. You would admit, I think, that what soldiers are called on to do can sometimes be confusing, frightening and at times seemingly without a clear guidance in rules. Usually, it isn't: most of what we do falls within rules, SOPS, routines, etc.  If it were just a question of having rules, then we would never have the disgraceful events we have in the records of all of the world's significant militaries at some stage in their respective histories. IMHO we need a bit more: we need the collective agreement that it is right to follow the rules in the first place. Not just expedient, because if disobedience looks like being more expedient, rules get broken.

Either way, what you and I are both looking for in terms of end results should look almost the same.

I state again that I agree fully with your view of the miserable way "The Centre" pitched the ethics program, especially in execution. I thought it was so superficial that it was almost juvenile: "Check this box here and you are ethically good for another year" It reminded me at times of the sickening way we were given Diversity training. I find the idea of "ethics coordinator" to be particularly insulting: IMHO that is totally a leadership task that can't be delegated.

Fortunately, I have seen things greatly improved in the hands of able, experienced commanders who take the subject seriously and lead the ethics program themselves, making sure the tenets get across, but in a way that makes sense to soldiers.

Cheers

 

[vonGarvin]

I state again that I agree fully with your view of the miserable way "The Centre" pitched the ethics program, especially in execution. I thought it was so superficial that it was almost juvenile: "Check this box here and you are ethically good for another year" It reminded me at times of the sickening way we were given Diversity training.

I agree 100%.  And I agree that pretty well anyone can recognise when something is "good" and when something is "bad".  I guess the presentation soured me to the whole approach, especially when "that guy" said that "x % of our MWOs believe that torture is warranted in some situations.  That is wrong".  No, torture is illegal, but whether it's wrong or not in every and all situations...and whether or not x % of MWOs believe that, is irrelevant.  If they torture someone, however, irrespective of the situation, that is illegal.  I guess that's indicative of my frustration with the whole program.  I would accept it if it were put together couched solely in terms of ethics, vice that piece of poo they put out.

 

[KevinB]

Define torture?

If someone had knowledge of several low yeild dirty bombs being placed in North America, does it not follow that certain methods to extract the information would be justified to locate those?

 

[vonGarvin]

Define torture?

If someone had knowledge of several low yeild dirty bombs being placed in North America, does it not follow that certain methods to extract the information would be justified to locate those?

Morally, I would say yes; however, the law is clear on torture.  And your example is the perfect example of how it can be reasoned to be the right thing to do in certain cases. 

I look at the law.  For some odd reason, criminals are excused their crimes if the police are called into question vis-a-vis procedure.  Some cocaine dealer in NB was let off a couple of years ago, because the cop didn't ask him if he wanted english or french, or didn't have just cause to find the thousands of dollars of dope in his car, or whatever.  So, in the case of some jerk with some low yield dirty bombs, I can see the asshat being let off because "some man was mean to him"....

 

[Edward Campbell]

The principle is as simple as it is important. The state, HM the Queen and, especially, all her minions, is imperfect; it (they) make terrible mistakes, usually at the expense of the individual. Left to its own devices the state will lie, cheat and steal because its minions are usually lazy (as are most humans) and, too often (but not always) stupid and venal. The individual who is confronted, in a court of law, by the state and all its power needs to be sure that the state acts correctly, within all the laws and regulations, because experience teaches us that if we (the Queen's judges, actually) are not vigilant in protecting the individual's rights then the state will act in a slipshod and illegal manner.

 

[CombatDoc]

Define torture?

If someone had knowledge of several low yeild dirty bombs being placed in North America, does it not follow that certain methods to extract the information would be justified to locate those?

This is exactly the premise of the movie "Unthinkable", which examines in graphic detail the methods that a democracy will use to prevent WMD use.  More importantly, it asks the question whether the ends justifies the means (or not).  As we have seen with events in Guantanamo Bay, once we start infringing on human rights it's a slippery slope downwards.
http://www.imdb.com/title/tt0914863/

 

[pbi]

This is exactly the premise of the movie "Unthinkable", which examines in graphic detail the methods that a democracy will use to prevent WMD use.  More importantly, it asks the question whether the ends justifies the means (or not).  As we have seen with events in Guantanamo Bay, once we start infringing on human rights it's a slippery slope downwards.
http://www.imdb.com/title/tt0914863/

And that, for me, is the problem. At what point do we "become what we behold"? We used to say, at one time, (perhaps in our innocence) that torture, questionable trials, "special prisons",  etc. were the things that "The Bad Guys" did.

Now, it seems to me we can argue a very long time about whether or not the ends justify the means (think about Bomber Harris and the targeting of the German civil population in WWII), or whether we can apply "civilized" rules to an "uncivilized" enemy who cuts prisoners' heads off and splashes acid on children, but the fact is that it appears that in the "Good Guy" camp, all of those things we once thought would never do have been done, to some degree. (And I'm not saying Canadians did them, BTW-I'm using "we" as the collective West that we like to think of as "good")

How far can we go in doing things until we reach a point at which the ethical fences go down between us and the people we fight and there is no longer any moral high ground? Or does that concept even matter? Is it really all just Apocalypse Now: who can use fear most effectively?

If torture of a suspect could be guaranteed to save my family's life from a terrorist attack, I'd  probably say "go ahead". But, once we've tortured somebody in one situation, and it seems to work, what's to say that we'll stop? You could say:"oh-but he is the enemy, and therefore bad and it doesn't matter", but I might answer that any Govt (including Canadian Govts) can (and have...) designate any individuals or groups as "the enemy" without much real grounds. Do we torture them, too?

And, if we say "it doesn't matter" if we torture the enemy, then on what grounds do we complain about him torturing our soldiers if he captures them, or torturing/killing/mistreating his own citizens?

What happens to "right" and "wrong"? Or do they matter, either?

Cheers

 

[ArmyRick]

I would say we are talking about some tricky and very "grey" issues. It is very easy to say "we would never and should not allow X action to ever take place..."

But then what happens when the situation becomes very complicated? Look at the "We don't torture" principle and then if we are ever in a position where torturing one person may save the lives of many more, do we justify it?

We would justify other forms of sacrifice in other situations. Lets say there is a rescue boat, they only have time to save 1 of 2 boats sinking. On boat A, is 10 people and Boat B, is 1 person. The obvious answer is to say, lets rescue the many and if at all possible, rescue the one after that. In my scenario, we will just say that if you rescue Boat A, Boat B has sunk and the person has drowned. So in that sense, we have had to make a decision to allow one person life to end but we saved many more. To quote Spock "The needs of the many outweigh the needs of the few or the one".

So in one sense it would be OK, to sacrifice someone and save others. But in a torture scenario, its a really risky idea to impede one's rights to potentially save many others. Although if your Jack Bauer, torture is a skill set not a forbidden act.

On the flip side, if we do torture one to save many, when we do stop justifying torture (Do you set a trend?) and what are the standards/limits for it?

Kind of a tricky way to look at it? My head hurts thinking this much. I would also add in that life is rarely black and white but it is many shades of grey.