In another war-crimes trial, that of Lance Cpl. Stephen Tatum for his part in the Haditha Massacre, Tatum’s lawyer insisted that he was under attack, or at least that he’d heard a metallic sound which might have indicated that he was under attack, or at least that he knew a house was “hostile” because his squad leader was shooting at it, so he did too. The lawyer argued, “He was taught that deadly force is the proper response to a threat.” Actually, his rules of engagement said he also had to know what he was shooting at, it was written down on a card and everything, but his lawyer says they can’t prove he actually had the card at the time. He added, “We would have chaos on the battlefield if every lance corporal questioned every order given by a staff sergeant.” Yes, much better to have a mass slaughter of civilians than to have chaos on the battlefield.
Having worked for attorneys for some years in San Francisco, I do recall that there is a legal standard "knew or should have known" that plaintiffs' lawyers often pull out to be defended against. So while I was reading what Tatum's lawyer was arguing, it reminded me that legal isn't the same thing as rational. And it also reminded me of a case we were involved in at the SF office (not the Patty Hearst/Queen of England one - maybe I'll have reason to tell you about that some time) in which a defense attorney claimed that his client could not be responsible for an alleged attack by his dog on plaintiff, because 1) defendant doesn't have a dog, 2) if defendant does have a dog, it is not an aggressive one, and 3) if defendant does have a dog and it is an aggressive one, defendant did not know nor should he have known that fact.
