Plausible Denial: A Look at the Doctrine of Command Responsibility
The Obama White House is currently being buffeted by a number of scandals that threaten to ensnare the President or senior members of his staff personally. Over the past two weeks, a whistleblower testified before Congress that a rescue team ready to go to Benghazi to assist our embattled Ambassador and consulate staff was twice ordered to stand down – directly contradicting the President’s own statement that he ordered that everything possible would be done to ensure the safety of our people there. Congressional testimony also
The White House is also struggling to contain a rapidly escalating scandal at the IRS, in which staffers are accused of letting tax-exempt status applications from conservative and Tea Party groups languish for years, while simultaneously fast-tracking applications from liberal groups.
Third, the Justice Department has been caught snooping through the private emails of a FOX News reporter, and tapping the phones of Congressional staffers trying to identify leaks. The Justice Department also took the unprecedented step of naming the reporter as a co-conspirator – criminalizing a reporter for doing his job.
Additionally, the Justice Department also went after the phone records of a number of Associated Press reporters.
The Secretary of Health and Human Services, Kathleen Sebelius, was caught making personal fundraising appeals to insurance companies she regulates.
The President has vehemently denied any personal involvement with any of these actions by his Administration. And indeed, there does seem to be a nearly impenetrable wall of plausible deniability built around this President.
We don’t use the term ‘plausible deniability’ lightly. Indeed, it seems to be a guiding principle underlying operations at the White House. But that raises an important question: To what extent can a chief executive continue to disclaim responsibility for the actions of those in his employ?
This isn’t a new question. Indeed, it goes back to a legal doctrine well known by any first-year ROTC or service academy cadet or midshipman: command responsibility.
In its most simple form, command responsibility states that a unit commander is responsible for everything his unit does or fails to do. By extension, the President bears responsibility for the official actions of every federal employee in the executive branch, and every contractor working under federal authority.
But responsibility for the wrongful actions of others and criminal or negligent wrongdoing are different things. We all know that no matter how diligent the commander of a military unit, Private Snuffy and Sergeant Murphy and Lieutenant Noob all have minds of their own, and occasionally go off the reservation, with results that range from amusing to hilarious to tragic.
So we look deeper into the matter to develop the extent to which commanders or executives should be held to account for the actions of those under their charge:
- Did the officer turn a blind eye to past misconduct?
- Were unit members acting on orders or on the express or implied direction of the commander? (“Will no one rid me of this turbulent priest?”)
- Did the officer fail to correct or discipline those involved in similar incidents in the past?
- Did the officer have personal foreknowledge of the wrongdoing?
- Did the officer give the command?
- Did the officer fail to prohibit or prevent the wrongdoing upon being informed of it?
- Was the officer negligent in failing to remain informed about the goings on in his command?
- Would most officers, acting with reasonable diligence and due care, have become knowledgeable about the wrongdoing and therefore been in a position to stop it? (If so, then ignorance is no excuse).
- Did the officer, upon learning of the wrongdoing, take action to remedy it, and to discipline those responsible?
- If the negative action was accidental and due to the negligence or incompetence of others, did the commander contribute to the accident by failing to ensure adequate training was conducted?
- Was the overall ‘command climate’ tolerant of wrongdoing, negligence, or incompetence?
These aren’t just academic questions. They are very real questions that military and civilian executives routinely grapple with when dealing with anything from property going missing to sexual harassment to sexual assault and other violent crimes. And these are questions we grapple with when considering allegations of abuse of power by the President of the United States and those operating under his direction.
A Closer Look
The doctrine of command responsibility as it has been historically applied to war crimes prosecutions gets a closer look in this thorough essay by Eugenia Levine. While holding commanders criminally responsible for the actions of subordinates pursuant to their own orders goes back centuries, the 1945 prosecution of Japanese General Tomoyuki Yamashita for the atrocities his men committed under his command while occupying Malaya and the Philippines took the doctrine a step further: Prosecutors argued that General Yamashita bore criminal responsibility for the murderous actions of his men. The argument hinged on his command responsibility: As the Commanding General of the Japanese troops involved in numerous massacres of prisoners and civilians in Singapore and Manila, he had the power to stop the killings, rapes and other atrocities – and did not. Specifically, Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”
The U.S. tribunal found General Yamashita guilty under this doctrine, and sentenced him to death, stating, “vengeful actions are widespread offences and there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable.”
This was a significant expansion of the concept of mens rea, or the guilty or criminal mind. The prosecution did not necessarily establish that Yamashita had personal knowledge of the atrocities and failed to prevent them. All they established, as far as the tribunal was concerned, was that the General should reasonably have known that vengeful acts were likely or commonplace, and failed to act to prevent them or control and discipline his troops.
Yamashita’s case went all the way to the Supreme Court in the case In Re Yamashita, where the Justices held, in part, that “The law of war imposes on an army commander a duty to take such appropriate measures as are within his power to control the troops under his command for the prevention of acts which are violations of the law of war and which are likely to attend the occupation of hostile territory by an uncontrolled soldiery, and he may be charged with personal responsibility for his failure to take such measures when violations result. Pp. 327 U. S. 14, 327 U. S. 16.”
The expansion of the doctrine of command responsibility to include crimes of omission was not without controversy. Justice Murphy wrote a dissenting opinion, arguing:
“In all this needless and unseemly haste, there was no serious attempt to charge or to prove that he committed a recognized violation of the laws of war. He was not charged with personally participating in the acts of atrocity, or with ordering or condoning their commission. Not even knowledge of these crimes was attributed to him. It was simply alleged that he unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit the acts of atrocity. The recorded annals of warfare and the established principles of international law afford not the slightest precedent for such a charge. This indictment, in effect, permitted the military commission to make the crime whatever it willed, dependent upon its biased view as to petitioner’s duties and his disregard thereof, a practice reminiscent of that pursued in certain less respected nations in recent years.
In my opinion, such a procedure is unworthy of the traditions of our people or of the immense sacrifices that they have made to advance the common ideals of mankind. The high feelings of the moment doubtless will be satisfied. But in the sober afterglow will come the realization of the boundless and dangerous implications of the procedure sanctioned today. No one in a position of command in an army, from sergeant to general, can escape those implications. Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision.”
Justice Rutledge also wrote a dissenting opinion, in which he asserts:
There is not a suggestion in the findings that petitioner personally participated in, was present at the occurrence of, or ordered any of these incidents, with the exception of the wholly inferential suggestion noted below. Nor is there any express finding that he knew of any one of the incidents in particular or of all taken together. The only inferential findings that he had knowledge, or that the commission so found, are in the statement that “the crimes alleged to have been permitted by the accused in violation of the laws of war may be grouped into three categories set out below, [Footnote 2/13] in the further statement that “the prosecution presented evidence to show that the crimes were so extensive and so widespread, both as to time and area, [Footnote 2/14] that they must either have been willfully permitted by the accused or secretly ordered by him, and in the conclusion of guilt and the sentence. [Footnote 2/15] (Emphasis added.) Indeed, the commission’s ultimate findings [Footnote 2/16] draw no express conclusion of knowledge, but state only two things: (1) the fact of widespread atrocities and crimes; (2) that petitioner “failed to provide effective control . . . as required by the circumstances.”
Nevertheless, despite the dissents, the Supreme Court upheld the constitutionality of the charge, and General Yamashita was duly hanged for the actions of others.
This is not to compare the IRS scandal, the tapping of AP phone lines, or even Benghazi to the murderous actions of the Japanese troops under Yamashita’s command. It is only to establish the limits of plausible deniability and the ability of a chief executive to dodge responsibility for the actions of those in his charge.
As the tribunal in the Hostage Case found, a commander cannot claim that he was negligent in his duties and then rely on his dereliction as a defense.
Applying the doctrine of command responsibility to the IRS case, the President is in a difficult situation. After all, it was the President himself who first suggested that he use state power to target his opponents via IRS audits.
This was taken as a joke at the time (if the naked abuse of power by the President of the United States can ever be taken as a joke). But the Archbishop of Canterbury, Thomas A Beckett, was killed because of an offhand exclamation of frustration by King Henry II. Moreover, had Obama made the same joke as a rank-and-file IRS employee, he likely would have been fired for it.
Meanwhile, we now know that the General Counsel to the 2008 Obama campaign, Marc Bauer, headed an effort to push the IRS and other federal agencies to target donors to conservative causes – and even to the Hilary Clinton campaign in the 2008 primary – to suppress opposing fundraising efforts and to intimidate and deter potential donors. As Kim Strassel of the Wall Street Journal asserts, “None of this proves that Mr. Obama was involved in the IRS targeting of conservative nonprofits. But it does help explain how we got an environment in which the IRS thought this was acceptable.”
Meanwhile, the President’s long-standing passivity with regard to the exercise of executive power does not absolve him. True, no one wants a President who micro-manages the details of cabinet officer business and local administration. But the President and his senior staff certainly created an environment in which a senior White House lawyer asserted that it was better to keep the President isolated from the scandal erupting at the IRS rather than keep the boss apprised of bad news:
As soon as White House counsel Kathryn Ruemmler heard about an upcoming inspector general’s report on the Internal Revenue Service, she knew she had a problem.
The notice Ruemmler saw on April 24 gave her a thumbnail sketch of a disturbing finding: that the IRS had improperly targeted tea party and other conservative groups. She shared the news with White House Chief of Staff Denis McDonough and other senior White House aides, who all recognized the danger of the findings.
But they agreed that it would be best not to share it with President Obama until the independent audit was completed and made public, in part to protect him from even the appearance of trying to influence an investigation.
This account of how the White House tried to deal with the IRS inquiry — based on documents, public statements and interviews with multiple senior officials, including one directly involved in the discussions — shows how carefully Obama’s top aides were trying to shield him from any second-term scandal that might swamp his agenda or, worse, jeopardize his presidency.
This is the kind of thing that lawyers esteem. Indeed, many attorneys (and Obama defenders) are defending her decision to withhold critical information from the boss:
In the IRS case, many prominent Washington lawyers say Ruemmler made the sensible legal call. She protected her client — Obama — by distancing him from a politically sensitive problem and ensuring that he could not be accused of meddling in an inquiry.
This may be a good legal strategy. But as a strategy for leadership and the exercise of executive power, it is an abject failure, and a fireable offense. It benefits no one but the President, at the expense of the Republic. It connotes an analogy with an increasingly hostile and isolated Adolf Hitler, ranting and raving in his bunker, issuing increasingly impossible orders because his staff was terrified of delivering bad news.
The President is a leader, not a client. He is a decision-maker, and he cannot make sound decisions if he surrounds himself with a staff that isolates him from real-time information. As a result, the President was blindsided by the news that the IRS was illegally targeting conservative groups for years – acting on what they took to be the President’s intent.
The President should not be learning of his own administration’s scandals in the newspaper. He needs to hear them from his own cabinet members, first. If he is routinely blindsided by newspaper stories, he needs to fire his staff and cabinet members and replace them with people with the guts to be candid with the boss.
Since he hasn’t done so, then he hasn’t taken the basic steps necessary to rein in his own Administration and ensure it remains in compliance with the law. The President owns the IRS abuses every bit as much as General Yamashita owns the abuses of his own men. Perhaps even more so: Yamashita had the U.S. military doing its best to disrupt his lines of communication and restrict his ability to exercise command and control; The President has no such excuse.
Impeachment is a political act, not a legal one, by design. This is true for the President and for cabinet officers alike. The exercise of Presidential authority is also limited by political and legal considerations. It is a lot like the exercise of military authority in this regard, except that labor unions are involved, too.
But any application of the doctrine of command responsibility and of the theory of command climate – which this Administration and previous administrations have routinely used against their own military commanders when prosecuting, assessing or relieving officers of command – indicates that this Administration is a failure from the very top.
So what do you think? Do you agree with Jason’s assessment? Tell us in the comments.