The “Costs” of Accountability in War

I’d like to call attention to comments by Ben Wittes over at Lawfare regarding two recent New York Times editorials.  Both editorials essentially deal with issues of accountability in armed conflict.  One voiced (understandable) skepticism regarding government claims that the CIA’s drone programs have caused no civilian deaths in the past year or so.  The other commented on a Seventh Circuit decision allowing Bivens lawsuits by U.S. citizens (for non-U.S. lawyers, Bivens lawsuits are those seeking damages for alleged constitutional violations) to proceed against former Defense Secretary Rumsfeld and others for alleged mistreatment in Iraq (in this case, torture, arbitrary detention, etc.).  Ben offered earlier comments on this and a similar U.S. District court decision.

Ben says that he is conflicted on these cases, but offers the closing thought that “. . . what will come from extending Bivens to these cases will, in the long-run, not prove salutary either.  Rather, the litigation . . . of these Bush-era cases will create real costs for war-fighting that are hard to envision prospectively but that will prove no less real for that fact.”  This seems to be an assertion that holding government officials accountable, or in these cases merely susceptible to suit and potential accountability for alleged wartime misconduct, imposes “real costs for war-fighting,” and that these costs are necessarily a bad thing.  I disagree that this is so.

The fact of the matter is that accountability is always costly.  Having spent many years in the U.S. Army as both a lawyer and non-lawyer, I am quite familiar with the costs, in manpower, in time and sometimes in individual or unit morale, of accountability.  But there is little doubt in my mind that these very real costs add very real value, to good order and discipline, to attention to detail, and ultimately, to internal and external institutional legitimacy.  This admittedly imperfect commitment to accountability is undoubtedly why polls often show the U.S. military to be one of the most trusted institutions in our society.

Regarding Ben’s concerns, this country’s executive branch officials successfully fought our nation’s wars for over a century before the courts (through judicially created immunity doctrines and ever-expanding applications of the political question doctrine) and Congress (through the Federal Tort Claims, Westfall and similar acts) erected substantial obstacles to such suits.  For example, in Little v. Berreme a naval commander was held personally liable for capturing a foreign vessel contrary to the act of Congress delimiting permissible hostilities even though his actions arguably complied with a presidential order.  In Mitchell v. Harmony, a field commander was held personally liable for destroying the property of an American merchant in spite of his claim that its destruction was necessary to avoid its capture and use by the enemy.  General Hovey and the officers who conducted Lambin Milligan’s military commission (found to be unconstitutional by the Supreme Court in Ex parte Milligan) were held personally liable for convening this unlawful tribunal even though it may have been ratified by both the executive branch and Congress.  See Milligan v. Hovey, 17 F. Cas. 380 (C.C.D. Ind. 1871).  As the court said:

“If an act is prohibited by the constitution, and it is beyond the power of congress to authorize it, then it may be said the wrong done by the act is not subject to complete indemnity by congress, because then the prohibition of the constitution to protect private rights would be without effect.”  Id. at 381.

In other words, as the Supreme Court essentially found in Bivens, the individual accountability and personal liability of government officials for constitutional violations is sometimes necessary to preserving the rights of citizens against their government, and this remains true, perhaps especially so, in war.  There is no question that a condition of war sometimes alters the relationship of a citizen to his government, especially for those citizens who take up arms against their government.  But as I have argued elsewhere regarding targeted killing

“If armed conflict is an exceptional condition that may relax or eliminate specific constitutional protections in certain circumstances, then the courts must, in cases meeting jurisdictional prerequisites, ensure that those exceptional circumstances actually exist and are not being opportunistically asserted by an overzealous executive.”

I am not proposing that we throw open wide the courthouse doors to claims of executive misconduct in war.  However, we must not overestimate the costs, or underestimate the benefits, of opening them.