Unlimited Liability
Bill wrote the term on the white board and turned to the class, tapping his marker lightly on the lectern as the final stragglers took their seats. Normally he enjoyed teaching and found it strangely relaxing, but today he was unusually tense. This was going to be his last lecture for a while. In a few days, his students would see him on TV at the hearings as he defended himself, Jack and all the people at CTU.
A comment by one of his colleagues during the recent elections had made him realize that most of these kids would have been in grade school when President Palmer took office. They had lived most of their lives under the protection of Jack and the others at CTU. Yet over the course of the campaign it had become clear that a sea-change had occurred. The relative peace and security of the past four years had made people forget just how it felt to be under attack. The nation had healed, and public attitudes had changed. Now that they had the leisure of reflection, they were on a witch hunt, looking to blame the very people who had given them the luxury of solemn reflection.
As Bill looked at the room of fresh, shiny faces, a feeling of urgency came over him. He wanted to give them some context, a different way to think about what had happened before they got caught up in the knee-jerk reactions of the media.
When everyone had settled in, he took a breath and began.
"Okay, so last week we looked at the concept of the Social Contract. Is everyone up to speed with that? Hobbes, Rousseau, etc? Yes? Good. Just to recap, then: Social Contract theory states that the state governs at the mercy of the people, and the people give up some individual rights in exchange for social order created by the state. Everybody with me? Excellent."
He took a sip of water from the bottle he kept nearby, using the time it took to screw the cap back on to collect his thoughts.
"Now, we're used to looking at the Social Contract primarily from the point of view of the citizens: what rights are we prepared to give up, how must the authority of the state be balanced with individual liberties to maintain order, and so on and so forth. But today I'd like to look a little more closely at the people whose job it is to do the maintaining. By this I mean the people who become the agents of the state." He paused.
"The easiest way to get at a concept is often through extreme examples, so: What is the most extreme type of power of the state can exercise?"
Bill looked at this fresh crop of undergraduates expectantly, but with little hope. He called on the first student to raise his hand, a boy in the front row. "Dallas."
"The death penalty?"
"Okay, good," Bill nodded thoughtfully. "Although Social Contract theory suggests that criminals have given up some of their rights as citizens because they have already broken the contract. What else? What is the most power the state can use?"
"Going to war?" A girl with dark curly hair gave him the answer he was looking for.
"Yes. Military might is generally considered the exercise of ultimate force on the part of the state. So we could say an extreme example of an agent of the state is a soldier. When someone becomes a soldier, he or she crosses a legal boundary and enters into a contract with the state. A British general, a man named Sir John Hackett, called this contract 'unlimited liability'."
He moved back to the white board and uncapped his marker.
"Let's take that term apart for a minute. Definitions of 'unlimited'? He underlined the term.
"Without limit?"
"Non-circular definitions of 'unlimited'?"
The class laughed.
"No restrictions?"
"Good." Bill wrote that down and clicked the back end of the marker under the next term. "What about 'liability' – there's a word we hear a lot these days. What does it mean?"
"Responsibility?" ventured one student.
"Okay, responsibility for what?"
"Well, that it's your fault, you know, like if someone gets hurt on your property."
"All right. If someone gets hurt on your property because you have done something wrong, you have an obligation to make it right – it's a way of saying that you have an obligation to settle a debt for a wrongful act, isn't it. So unlimited liability means there are no restrictions on that obligation – there are no limits to what you owe. In business, it means you can be taken to the cleaners. What does it mean for soldiers?"
Silence. Some days he swore it would have been easier to work the interrogation room. He wasn't sure if they were shy, afraid of getting it wrong, or if they really had no thoughts about any of this. He didn't want to believe the latter, so he made an effort to be encouraging. He tried again.
"If the social contract involves giving up some individual rights so that the state can maintain order, what rights does the soldier give up? What does it mean to be a soldier?"
The students still looked back at Bill blankly. The boy in the front row looked like he might have an idea, so Bill nodded at him. "Dallas?"
"It means you might get killed?"
"Yes. And that's the ultimate price, isn't it?" Bill wrote Give your life on the board. "Anything else?"
After a painful pause, a boy slouched in the front row snarled "It means you get shipped to some shithole so you can waste some Towelheads."
Bill cringed that his lowest expectations had been met. "Can we avoid the racist terms, here, please?"
The boy shrugged.
"But, okay, it means you go where you're told and you're allowed to use ultimate force." Bill took what he could from the response and wrote it on the white board. He turned back to the class. "What else?"
A young woman raised her hand. "You have to follow orders?"
Follow orders was added to the list.
"Okay, so what we're saying here is that a soldier gives up a great deal of his autonomy, and may even give his life in the service of the state. Furthermore, soldiers are frequently required to do things that would in normal circumstances be considered immoral, such as killing. Their professional ethics may require them to violate their own personal ethics. For example, killing may be morally reprehensible to soldiers in their role as private citizens, but for a soldier to refuse to kill would be a violation of his or her professional ethics."
He let that sink in for a bit before continuing.
"What about the ability to decide when, where and for what he will do these things? That is, the ability to set his or her own agenda?"
Bill back to the lectern and took another sip of water, then picked up his notes.
"I want to read you something about the U.S. Army:
'All officers of the armed forces, and all soldiers, too, are bound by their oath to do their utmost to achieve the prompt and successful completion of the mission assigned, even at the risk of their lives when necessity requires, and without regard to their personal views as to the correctness of the national policy or the wisdom of the orders under which they act.'
Before he could even ask a question, a muttered comment from the back of the room reached Bill's ears.
"Oh, come on."
"Emma? You disagree?"
An earnest girl with long brown hair and a hand-woven hemp necklace shifted in her chair. "Well, they must have some ability to decide. They don't just follow orders blindly."
"You think they have a choice?"
"Well, sure. What about war crimes? The excuse that, say, the S.S. were 'only following orders' doesn't hold water, does it? They could have said no."
"Could they? That's interesting. Let's look at that. When you don't like your job, what can you do about it? Dallas?"
"Quit?"
"Right. You withdraw your labour. What happens when soldiers withdraw their labour?"
"They get court-martialled."
"I heard they get the death penalty," the curly-haired girl piped up. Bill nodded.
"In time of war, yes. Soldiers have been executed. In World War I, it wasn't unheard of for commanding officers to deal with soldiers who refused to go over the top of the trenches by shooting them on the spot. In peacetime, they are more likely to just get sent to jail. So soldiers give up the right to withhold their labour."
"But that's still a choice," Emma wasn't ready to concede her point. "It's a crappy choice, but it's still a choice. Are you saying soldiers have no moral obligation to decide if their actions are right?"
"What do you think? If the soldier is under contract of unlimited liability, does the responsibility for his actions rest with him, or the person giving the orders? Is it the soldier or the state that we should hold liable?"
"Well, in theory, I suppose ultimately the state, or both, maybe. But what about if the soldier is doing things the state doesn't really want him to do? Like that guy – the guy who's going before the Senate hearings next week."
And so, at last, the real reason Bill had chosen this topic for today appeared. "Jack Bauer."
"Yeah, him. The word is he did all kinds of crazy shit. Torture and whatnot. They didn't ask him to do that."
"They didn't? Are you sure? What about implied consent?"
"I'm not sure I follow."
"Look at the circumstances. The times when the state called upon Agent Bauer were some of the darkest, most desperate days in our Nation's history. In each case, the state asked him to complete a mission that involved stopping an imminent terrorist threat. What if he had to resort to extreme methods as the only way for him to achieve the mission that the state had given him? What then?"
"Well, he still didn't have to do it that way, did he? There must have been other options. I think he's still responsible for his actions."
His voice was low and serious as he asked the logical follow-up question. "What about the person who gave the orders?"
"Yeah, him too. Anyone who knew what was going on. They're all a bunch of war criminals, if you ask me."
Bill could see by their body language which students had read his bio in the course catalogue and which ones had just been looking for an easy option. Seeing their reactions made him realize he might not be returning to the classroom at all. It would depend on how many senators—and, he supposed, how many of the board of governors of the university—agreed with Emma.
"War criminals." The bile in his throat made it difficult to speak. When he thought of what Jack had been through so that students like her could safely take a bus to school…
"Yeah."
Bill gripped the lectern tightly and looked away. "Well, that's an interesting way of looking at it." He sought refuge in the theory.
"Emma raises a good point. What happens when the agents of the state go too far? We hold the military to a different standard than the rest of society. That gap is necessary so they can maintain order on behalf of the state. But Social Contract theory also suggests that this agreement is only valid when it leads to the benefit of all. It's up to the citizens to determine when the actions of the state stop being beneficial and start to become tyrannical. Hobbes believed that if the state starts to descend into tyranny, citizens have the right, and indeed, the responsibility, to renegotiate the contract."
Dallas raised his hand again. "So if we decide the state went too far when it gave its implied consent to this Bauer guy, then he can be punished, even if he was following orders?"
"That's right."
"That doesn't seem fair."
To Bill's surprise, the slouching student who had made the 'towelhead' comment spoke up again, pushing a strand of greasy blond hair behind his ear. "Are you kidding me? That guy's a fucking hero. He was tortured by the Chinese for, like, two years or something. And he still managed to stop most of the nukes when he got back." He looked at Bill. "It's true. I read it in Rolling Stone."
Bill wasn't sure which was more surreal, the fact that Jack was in Rolling Stone, or the idea that this lout had read an article. "Did you, now."
"Yeah. So now, because we've changed our minds, we're going to punish him? That's crazy."
"Not if the citizens decide to renegotiate the contract. That's a fundamental underpinning of democracy: that the state governs at the will of the people. And under unlimited liability, a soldier gives up the right to limit what he owes the state. "
"But he wasn't a soldier."
"Not technically, perhaps. But he was operating as an agent of the state, and he had originally become an agent of the state as a soldier. His professionalism was that of a military man."
"So you think he's just going to take it?"
Bill chose his words carefully. "I think that Agent Bauer will do what his country asks of him."
At the front of the class, Dallas looked thoughtful. "Mr. Buchanan?"
"Yes."
"If the soldier has unlimited liability to the state, what about the state's liability to the soldier? Does it work both ways? Does the state have a debt to a guy like that? How could the state ever repay what he has done for this country?"
"That's a good question, Dallas. That's a very good question."