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For the sake of the Indian republic

This is not the first time a senior public service official has been made to look weak and gullible for not asking simple questions of political figures, and neither is it the first time a public service official has been hung out to dry by the self-same political figures. General Richard B. Myers, Chairman of the United States Joint Chiefs of Staff from 2001 to 2005, has been exposed as accepting without question illegal orders to sanction torture by the U.S. armed forces . The orders came from General Myers’ political seniors, most notably the then Defence Secretary Donald Rumsfeld, and other political appointees including Alberto Gonzales, who later became Attorney General, and lawyers David Addington and William Haynes. Others involved were Mr. Rumsfeld’s Under Secretary for Policy Doug Feith, and assistant Attorney Generals Jay Bybee and John Yoo.

The details have emerged in the British newspaper, The Guardian, which has carried material on and from a new book by Philippe Sands QC, a British lawyer who has persistently fought to expose the illegality of the 2003 invasion of Iraq as well as the calculated and deliberate use of torture by the U.S.

General Myers appears to have become increasingly confused and troubled as evidence emerged of the systematic torture of detainees held without charge or access to legal advice in the U.S. military detention centre at Guantánamo Bay on the island of Cuba, but it also turns out that he simply did not know the army field manual, and thought the torture methods being applied were sanctioned by the document. In addition, he seems to have thought the detainees at Guantánamo Bay were protected by the Geneva Conventions, which in fact covered only those detainees who were members of the Taliban because they were wearing uniforms with insignia.

Many of those applying and supervising the torture also acted unquestioningly and even approvingly, with an attention to detail similar to the conduct of Nazis who administered the Holocaust. In a bizarre twist to the tale, it has also turned out that many of the torture methods had been copied from a popular American television series.

It is no surprise that the widespread, extensive, and calculated use of torture by the U.S. at Guantánamo, and at Abu Ghraib in Iraq — and by the states, including several European countries, which have colluded in the exportation of people by the U.S. for torture elsewhere or have engaged in torture themselves in Iraq and Afghanistan — has produced no useful information. The torture has been a gratuitous exercise in violence, and has shamed and diminished every country involved, especially the U.S. and the United Kingdom.

This kind of episode is not new in the recent history of the U.S. In 1969, the then National Security Adviser, Henry Kissinger, ordered the bombing of Laos and Cambodia. Mr. Kissinger had no authority to do so, and yet the military commanders thought that because the orders had come from the National Security Adviser, they had been approved by President Nixon. Even had Mr. Nixon given his prior approval, it is not clear that under the National Defense Act of 1947, he had the necessary authority; that lay with the Secretary for Defence. The U.S. military proceeded to drop four million tonnes of bombs — a greater weight of bombs than was used in the whole of the Second World War — on two countries against whom war was never declared, slaughtering untold numbers of civilians (there was no evidence of any military installations on, for example, the Plain of Jars), and leaving millions of anti-personnel bombs unexploded in the soil to continue killing peasant farmers for decades thereafter. There is no serious prospect that Mr. Kissinger or the U.S. military commanders — or those who flew the aircraft — will ever face prosecution for war crimes; Mr. Kissinger was awarded the Nobel Peace Prize.

The complicity of public servants in ministerial and other illegalities is of course not confined to the U.S. The former senior Indian police and intelligence officer, K.S. Subramanian, has publicly detailed active collaboration and collusion by Indian public servants, including the police and administrative officers at almost every level, in the planning and commission of atrocities against the poor, Dalits, and the minorities. While the events at and after Godhra in 2002 are particularly repulsive, the example of Godhra is very illuminating. Mr. Subramanian says that not a single officer concerned rejected the reported instruction by Chief Minister Narendra Modi to “respect Hindu sentiments,” despite its manifest illegality and unconstitutionality. As Mr. Subramanian notes, officers throughout the system got the message conveyed by their seniors’ example and conducted themselves accordingly. The idea of upholding and following the law must have disappeared from their thinking.

There is no doubt that it can take courage to resist an illegal order or policy. In the early 1980s, the British civil servant, Clive Ponting, who had an impeccable record of service — and had received a national honour for reducing the costs of a defence project — realised that the then Defence Minister, Michael Heseltine, was planning to lie to Parliament, where a particularly determined MP was starting to ask very awkward questions about the sinking by a British submarine of the Argentine battleship General Belgrano in the Falklands war over a year earlier. Mr. Ponting posted the MP documents exposing the lie — a wise move, as the MP was immune from prosecution for things he said in Parliament; when the government tried to identify the source of the leak, Mr. Ponting openly admitted his action. He was immediately prosecuted under the then Official Secrets Act, in a case which none wanted brought except the then Prime Minister, Margaret Thatcher; indeed a deal seemed to have been negotiated earlier whereby Mr. Ponting would leave the civil service and no charges would be brought. The trial took place in a poisonous political atmosphere, with the overwhelmingly pro-Conservative British press shrieking for Mr. Ponting’s conviction and even implying that some of the jurors — who had been meticulously vetted — were a threat to national security because they were former Labour councillors in local government. The jury completely acquitted Mr. Ponting.

The jury’s verdict was especially significant because it amounted to a rejection of the trial judge’s summing up, in which Justice McCowan had said the case turned on the meaning of Mr. Ponting’s public-interest defence under Section 2 of the then Official Secrets Act. Justice McCowan advised the jury that the public interest was what the government of the day said it was, but the jury, by acquitting Mr. Ponting, rejected this. Almost predictably, a new Official Secrets Act passed five years later abolished the public-interest defence.

Nevertheless, the effect of rejecting an illegal or irregular ministerial order or policy can be far-reaching. The former Cabinet Secretary of India, T.S.R. Subramanian, in an often depressing account of the inside of the governance of India, has said that when he, as Chief Secretary in Uttar Pradesh, immediately stood his ground over irregularities in transfer orders, Chief Minister Mulayam Singh thereafter intervened in staff transfers and postings only when “significant political compulsions” were involved.

While Mr. Subramanian does not mince words over the way things were and no doubt are done by many other politicians and civil servants, the value of resistance to illegal and even immoral orders is often incalculable. It is widely enough known that during the Second World War, in occupied Denmark, Scandinavia and Bulgaria, and even in Fascist Italy, widespread, sometimes national, refusals to implement Nazi racial classifications caused the abandonment of the classification exercises and even led locally-based Nazis to moderate or abandon their Nazism. Hannah Arendt, who gives Denmark particular attention in her famous book Eichmann in Jerusalem, is only one of many to note the impact of such acts of resistance against even the most overwhelming forces of evil.

It may never be easy for public servants to insist that the law and the Constitution be upheld and followed. Individuals can feel powerless and isolated, and can be demoralised when those promoted are selected for their compliance and complicity while those who know what high-quality public service involves are left to rot or are victimised. The pressures on such staff can be enormous, and can include peer pressure, bullying and intimidation, financial and career temptation, and much else besides. One researcher into the work of Indian public servants who have conducted themselves with probity has suggested financial incentives for those who resist illegal orders, and that may be a starting point. Nevertheless, particularly in such intensely party-politicised institutions as the Indian public services have become, such probity could well be vital to the very survival of the Indian republic.

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