If a soldier’s brain has been so traumatized by combat that he cannot control some of the things that he does, how can he be held legally accountable for his actions?

But then again, how can he not?

“Do we have the legal and moral right to judge and sentence soldiers who have diminished capability due to actions taken on behalf of the American public?” asked University of Pennsylvania Law Professor Stephen Morse, who is also a prominent forensic psychologist, during a PTSD conference hosted by the Center for Ethics and the Rule of Law in Philadelphia.

Morse’s questions were highlighted by the observation of Dr. Bessel van der Kolk that “after combat, vets have to live with an altered neural network.” For more on van der Kolk’s lecture on neurobiology, see my previous post.

Let’s start, as Morse did, by looking at the legal definition of what is needed to be liable for one’s actions.

Morse said that all crimes include the requirement of being a “voluntary act” (i.e., an intentional action or omission) done in a state of reasonably intact consciousness. That provides a basis for being acquitted or convicted of murder, for example. Thus, if a defendant is in a state of divided or disassociated consciousness, the act requirement is not met and the defendant will be acquitted. Such cases are relatively infrequent.

But how else does the law deal with impaired consciousness?

In 46 states and in the federal system, there is also a plea of not guilty by reason of insanity if the defendant’s mental disorder produces a sufficient cognitive deficit or, in a minority of states, a control deficit.

How should the law deal with PTSD, a disorder in which the victims are operating with a reasonably intact consciousness until something triggers in some sufferers an altered state of consciousness? Should this be treated as a cognitive or control deficit in appropriate cases?

For example, smells go directly to the amygdala, the limbic brain’s fight-or-flight center. I know a vet in Montana whose flashbacks were probably triggered by a nearby oil refinery that produced odors that reminded him of diesel fumes in his Iraqi forward operating base. During one of those flashbacks, he tackled a mailman, pinned him to the ground, and was screaming for his rifle. The vet’s consciousness seems clearly to have been altered in this case.

There are vets’ courts in some states, but not all states, that accept a vet’s diminished capacity. So the system is unfair to vets without that option.

I remembered a former Army Ranger who created a disturbance on an airliner. The prosecutor and the defender worked out a deal for him to plead guilty to a misdemeanor, then be sentenced to treatment in a VA hospital. But judges have considerable discretion in sentencing, which also makes the outcome unfair for others.

Professor Morse had a suggestion. He proposed a fourth plea, in addition to innocent, not guilty by reason of insanity, or guilty. That would be a plea of guilty, but not fully rational, which would give the legislatures or the courts an option for reduced sentences. Sufferers from PTSD who met the voluntary act requirement and who were not sufficiently affected to succeed with an insanity defense would then have a genuine opportunity to present a claim that they had diminished rationality and diminished culpability.

At one point, our discussion shifted to atrocities like revenge killings that could lead to moral injuries. Would they also be considered as not fully rational?

That led to heated discussion, with one former Army judge advocate insisting there was no such thing and demanding a retraction of the charge. But three other Army commanders also weighed in on the issue.

One said he had pored over the records from Abu Ghraib and was appalled to find how many soldiers from how many different units had employed enhanced interrogation techniques (like waterboarding).

Another military prosecutor said he had seen cases in Iraq in which American soldiers should have been charged with war crimes since there was compelling evidence they had shot civilians and planted weapons near the bodies. Instead, he said, they were charged with Article 15s and busted one rank in the unlikely event they were convicted.

And another commander said atrocities are still a minority of what soldiers do, but that they are a significant minority and greater than most people realize.

This seminar was made up of top military personnel, legal scholars and mental health experts, with a couple of journalists thrown in for good (or bad) measure. So we debated the issue at some length, without resolution.

Finally, one of the participants summed it up for all of us, saying, “I think we’re all morally conflicted for what we are sending soldiers out to do, what we are willing for forgive them for, and what they can forgive themselves for.”