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Comment by munk-a | Hacker News Reader

I agree, there is far too much ability to transfer liability in the modern world which lets this sort of stuff get abstract and easier to dismiss. Companies should be held accountable to the extent their growth has encouraged bad behavior, but individuals at that company committed the behavior and, if they were instructed to do so and blindly followed then...

1. "Just following orders" isn't now and has never been a valid excuse

2. Go after the coercers or modify our understanding of liability to allow those targeted to make the argument that their superiors deserve to repay them every bit of penalty they owed.

Really, in the modern world, just sue someone and tell them they're on the hook but they'll be allowed to sue whoever is responsible for their portion of the responsibility and watch this all work itself out quickly.

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Transfer of liability? There are candid emails between Steve jobs and Schmidt about the topic.

Edit: They made a minor settlement and there was a lawsuit that got a tiny amount of press.

http://time.com/42322/steve-jobs-chilling-response-after-get...

Edit 2: there was not even a slap on the wrist legally speaking:

"The proposed settlement, which if accepted by the court will be in effect for five years, prohibits the companies from engaging in anticompetitive no solicitation agreements. "

...am I understanding it correctly that their 'punishment' was having to promise not to break the law again? But only for five years??

Yes. They'll get a "harder" slap if they do it in the next five years (if caught), but after that are free to do so with baseline "penalties" (again, if caught).

"Don't be evil"

Yeah that's ridiculous. A real penalty would be for example to not allow them to appoint new employees for 5 years.

Jobs was a liar. He also said no engineers were laid off from Pro Apps, when in fact half of Pro Apps engineers were fired at the end of the 2000s.

>> 1. "Just following orders" isn't now and has never been a valid excuse

Yes it is, see: https://definitions.uslegal.com/c/corporate-immunity/

That said..I agree with the spirit of your post. The only officers that cannot receive corporate immunity are the CEO and CFO - they can be held liable in criminal and civil litigation.

Hey, it reads "in good faith". This only works when an officer in question could not know (s)he is breaking a law. Knowingly doing illicit things is not covered, afaict.

Definitely so. "But my boss told me to kill that person, else I would lose my job :'("

As a civilian it would be hard to come up for a good faith reason why an employer could legally kill someone.

Hypothetically: A person at Apple might not know why they can't hire someone from Google. For all they know it could have been ordered over apple trying to steal Google trade secrets as part of a settlement. Lots of possible reasons why it could be legal. The employee just does not necessarily have the knowledge. So they could make a defense that assumed their employer was acting in good faith.

It's pretty much impossible to prove good faith in the instances of death, and theft. Generally, such things are reserved for governments either through war or (criminal executions) or property seizure. If your employer was the government you may be able to make a good faith defense if it was related to your job and it turns out the government was violating the law.

Also keep mind it's a defense not an immunity. Also the more severe action the harder it is for there to be a lawful reason. There are very few instances were someone could legally kill someone vs not hire someone. It's like orders of magnitude different.

Is there a law in California specifically prohibiting colluding with other employers? If there isn't, then you can't make the case they should have known they were breaking it.

Then why aren't they being held accountable? Ever? Banking scandals. This example.

Why aren't those who are tasked with enforcing the law enforcing the law?

Because they're actually tasked (implicitly or otherwise) with protecting capital. In many cases this means enforcing the law, but in cases of corporate misbehavior, usually means ignoring it.

The upward FLOW of capital.

In a frictionless system, sure. When lawyers cost so much, this kind of chain-of-lawsuits system would be a huge payout to lawyers.

It'd be nice if the people adversely affected by malfeasance got compensation, but the more important part, as far as utility goes, is that the perpetrators suffer significant penalty to disincentivize the behavior.

If that's the criticism, it should presumably apply much more widely than just this case—why not all of civil law?

> 1. "Just following orders" isn't now and has never been a valid excuse

That's not true. Just look at Lt. William Calley.

"following orders" was specifically not an excuse, hence him being convicted.

He didn't serve additional time due to other technical issues in his prosecution.

What an awesome way to split hairs.

"Howard Callaway, Secretary of the Army, was quoted in The New York Times in 1976 as stating that Calley's sentence was reduced because Calley honestly believed that what he did was a part of his orders—a rationale that contradicts the standards set at Nuremberg and Tokyo, where following orders was not a defense for committing war crimes.[98]"

[98] Marshall, Burke; Goldstein, Joseph (2 April 1976). "Learning From My Lai: A Proposal on War Crimes". The New York Times. p. 26.

Sure sounds like an excuse to me. Now that I think about it, you're not splitting hairs, you're just flat out wrong at best.

Being genuinely coerced into an action against your will doesn't leave you ethically liable for your actions - you need to have some intent and will to carry out your actions for any culpability in a philosophical sense[1]. As an example, if you were to hand someone a gun and tell them (in a manner which they fully trusted your honesty and intent) that you would shoot them and their friend if they didn't shoot their friend then... you're on really shaky ground philosophically - dismissing any scenario escapes (shooting your captor, disarming them etc...) you're left with three basic options, shoot yourself, shoot your friend, and refuse to shoot and have both yourself and your friend be shot - in this case it is logical and it should be a guiltless action to shoot your friend and preserve your own life (but it's complicated by our value system).

So, excusing part of an action due to a coercion to follow actions is valid, but every time we talk about this scenario in the real world you're going to have more options, maybe you doubt your captor would actually shoot both of you - in that case shooting your friend is back to mostly being your decision - the issue occurs when this grey story is converted to black and white and people paint themselves falsely as being unwilling participants. In WW2 US soldiers could have refused when asked to participate in concentration camps, it would have been severely inconveniencing and that counts for something, but they chose the easy route and that is a perfectly valid guilt.

[1] There is a rather sound argument to be made that evil and culpability is a false construct and that we should refuse to punish any bad actors beyond the point of discouraging recidivism. If there is a common good that we all share as a "known truth" then deviations from that truth can be considered to be impairments about seeing the truth and comprehending it which would lead any deviations from that truth to be understood as a need to enlighten their view of the truth. It's quite an interesting philosophical path to head down.

"Just following orders" was a valid excuse until the Nuremberg trials.

"Just following orders" has been used as recently as the Obama administration as an excuse not to prosecute CIA operatives for torture, despite American law on the books that explicitly forbids using it as an excuse for torture.

Isn't the main part that they were given legal guidance that what they were doing was not legally torture though? There's a bit in another article that got posted today [0] about that.

> Guantánamo leadership wanted to understand the legal gymnastics that would be required to implement a program of their own. “Torture has been prohibited by international law, but the language of the statutes is written vaguely,”

and

> Bush Administration lawyers had taken the position that “enemy combatants” could be held indefinitely, without trials, and that in order for something to qualify as “torture” it “must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

[0] https://www.newyorker.com/magazine/2019/04/22/guantanamos-da...

People weren't just tortured, some were tortured to death.

The United States Senate ratified, and President Reagan signed the The U.N. Convention Against Torture, which states that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

No amount of legal hand waving by the Bush administration can justify what was done.

Likewise, there is no excuse for the Obama administration refusing to prosecute the crimes that occurred.

Not arguing the moral point. The parent poster said the threshold of the treatment becoming torture wasn’t crossed, you are saying torture is banned by the agreement. It needs to be torture for you point to have standing

How can the treatment of prisoners prove to be fatal without that treatment rising to the level of torture?

As Obama put it, "We tortured some folks."

He just refused to prosecute those guilty of ordering and carrying out that torture, despite our treaty obligation to do so.

Perhaps Obama was "just following orders" himself.

It was rejected in 1474 - rather a long time before Nuremberg - https://en.wikipedia.org/wiki/Superior_orders#The_trial_of_P...

If read https://www.goodreads.com/book/show/789376.The_Nuremberg_Tri... I believe you will find this is not the case.

You don't think people were executed post-war for "just following orders" before the Nuremberg trials?

In other words, do you really think such people got off easy before the Nuremberg trials? If anything, much worse has happened to them throughout history, because the kings and dictators didn't have to put them through a judicial process.

Whether or not you're punished for following orders has more to do with whether or not you're on the side that writes history than anything else.

This is an embarrassment of the victor and never celebrated - atrocious actors on the victorious side have been punished at times throughout history but I agree the bar is higher. It certainly isn't celebrated though - and informed societies can still be outraged (See Guantanamo, Abu Gharib, Yemenese drone strikes under Obama & Trump, the Bay of Pigs, Guatemala... the general familiarity of this list is a testament to the fact that the victor can be held accountable - even if individual actors are generally given more levity[1]...)

[1] _sigh_ Oliver North, honestly America... why did you never... eh.

Depends on the situation. Let's say you have a hostile war captive (enemy combative of a high rank) who is the ONLY one who can provide you with critical, war-winning details. You (metaphorically) would want to do whatever it took to secure those details. I've been in hairy situations before. Everything Hollywood depicts goes out the window. Embedded reporters get a newfound respect for troops once they ride out just one hot encounter. They understand the need for the military to do what they do, and are likewise frustrated when the military's hands are needlessly tied when they shouldn't be. I agree to not engage in heinous acts for their own sake, but sometimes more vigorous actions are needed to win for the sake of innocent lives. Case in point being ISIS. They should have been afforded zero grace. In fact, my aforementioned situation has played out in the real many times over. Imagine if the man above had kidnapped a loved one. You would do and sanction anything necessary to get back your loved one. Failure to see this is a moral failure on the part of the one to make the right decisions. There are some situations where "anything goes" is the way to go. Thankfully they are few and far between.

The problem with this kind of consequentialist ethics is that thinking the end justifies the means generally makes you very vulnerable to manipulation by others who tell you what the ends will be and then ask you to do the means.

Remember, Guantanamo also had taxi drivers and aid workers in it. How many of them are you willing to torture in order to find the terrorist you've captured and maybe get some information that might help stop a future terrorist plot? The hypothetical of capturing a top general with a tight deadline provides a terrible intuition when it comes to torture.

But that is exactly the kind of intuition Rumsfeld et al wanted people to be thinking about, in order to justify torture^W enhanced interrogation techniques.

You (metaphorically) still didn't answer the underlying question, namely, wouldn't you do anything it took to save a loved one? The answer isn't grey, it's black and white. The answer is always YES to doing what it takes to save one's family. You have a moral imperative to do whatever it takes to keep your own safe, up to, and including, your own life. You fail your family morally if you fail to act when you could do so. People like to throw in these trick questions like, "If you could save your own child, but nine others would die; or you could save the nine and your own would die. What would you choose?" Save my own child every time.

So, then you'd kill 6 billion to save your own child.

That is patently ridiculous and taken to the extreme and you know it. We are talking reasonable possible situations (not world events) that you may find yourself in. And yes, if I had a choice to save an entire building or just my kid, it's my kid every time. I fail them morally if I do not. I'm not responsible for other people's family, just my own. Now... if I could save my kid and everyone else, then yes. But my kid first.

Hardly ridiculous, it's inescapably implied by

> The answer isn't grey, it's black and white. The answer is always YES to doing what it takes to save one's family.

You didn't really need to make such an absolute point, but you did.

You would want to do whatever it took to secure those details.

Right, so you bring in Hanns Scharff.

Of course they were. The key point is the Nuremberg trials are legal trials, supposedly fair and Geneva convention friendly way to punish the loosing side one Japan escaped

And it’s still valid if you haven’t lost a war because no one can make it valid.

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