"Don't follow an unlawful order" is all nice and good
in theory, but in practice it doesn't really work.
First off, for instance, many orders may be of unclear legality. Was it unlawful to torture "detainees" at Guantanamo? The US government said that it was just fine. By that same token, were not the great crimes of Nazi Germany done within Germany's own laws? But what if the US government is wrong? What if the lawfulness of the order had
not been decided yet? After all, the US government put out a very big (though not really strong) case that what they were doing was within the law. If they turn out to win and you didn't obey, you disobeyed a lawful order. If they lose and you did obey, you obeyed an unlawful order.
Now, i realize there's a little more nuance to our laws than just that, but it's the underlying problem with this system.
And then there's the practical side: saying "No, i'm not going to stick that guy in that tank of water until he half-drowns because that's a Geneva violation" is all well and good until you get punished by military authorities--covertly--for disobeying orders. When the people charged with upholding the law--to a certain extent--are the ones violating the law, how then can you expect fair treatment from them?
Does anyone know what happened to, for example, the guy who blew the whistle on Abu Ghraib? He may not have been punished for it yet, but the military has a history of hurting people who do things like that very badly. Do you think he "got the message" when
Rumsfeld outed him on TeeVee?
Ultimately, i understand the reason for this rule: to not let people push responsibility onto others. But if given the choice between getting only those at the bottom and only the one person who gave the order i would rather see the order-giver hang.
(This is reason #92,401,238,492,491,393,108,240,824 why i don't join the military: the whole thing is set up so that the people at the bottom are separated from the rich and powerful and set up to take the blame.)
(Edit: It occurs to me that this could be read as apologetics for following unlawful orders or torturing on command. This is not my intent. I think that people in the military, as elsewhere, absolutely have a duty to not do these sorts of things. But at the same time, i think we need to recognize the reality: that people will do what authority asks even if it is evil, that people are not all philosophers or ethicists, and that those in the military are operating under the full nine yards of authoritarianism--unlike, say, those in Milgram's famous obedience experiment, who were only working with people who
looked like authority.
And it isn't like those in charge have all the power. In fact, they by and large have just about zero power when compared to the power of the general populace to exercise non-aggressive resistance to their deranged demands. Dick Cheney is pretty impotent unless he has troops to carry out his orders. Without a squad of computer scientists, Attorney General Alberto "Abu Ghraib" Gonzales can't jack off to Google search logs. But, as Milgram showed us, people tend to surrender their power to "authority" and we should not ignore this.
So what i'm saying is: Nuremberg gets used to pin responsibility on "the troops", or the people following orders in any case. I agree they have a responsibility to act appropriately, even if they become hurt by it, but at the same time we must not ignore those who give the orders.)