THE DEFENSE HAS RESTED ITS CASE in Charles Graner's court-martial, and it doesn't look like much of a case. The crux of the defense's argument is that Graner was "just following orders." But since "I was just following orders" has not been a legal defense since the Nuremberg Trials, Graner's attorney, Guy Womack, refined it to: "I was just following what I thought was a legal order." Military law does permit that defense; but making it stick requires that the "reasonable person" standard be met: Would a reasonable person have believed she or he was carrying out legal orders in treating Iraqi prisoners in the specific ways that Graner did?

That's going to be a tough bar for Graner, because other soldiers in Graner's unit testified that he took pleasure in beating and abusing detainees; because his personnel file indicates that he had been reprimanded for not adequately controlling his"stress levels" and for not following "simple basic instructions"; and because Graner himself refused an order in November 2003 to "rough up" a detainee -- thus indicating he did understand the distinction between legal and illegal orders.

The defense implicitly acknowledged the shakiness of their argument by doing a 360 on their original plan to have Graner testify at his trial. At the start of the trial, Womack called Graner " 'an outstanding candidate' to testify, saying no one else could explain as well what had happened at the prison." But that changed as the prosecution repeatedly undercut Womack's assertions that Graner had just been doing what he was told to do and that he believed his orders were legal.

If Graner is convicted, he could get up to 17 years in prison; but it bothers me a lot that one of the central pieces of the prosecution's argument is that Graner and the other soldiers who abused detainees were doing this on their own, and not on the instructions of superior officers. It's abundantly clear by now that Graner and others WERE told to commit the illegal acts they committed. We know that from the FBI memos obtained by the ACLU documenting torture at Guantanamo and Abu Ghraib. We know it from Alberto Gonzales's notorious "torture memo" to Pres. Bush, which he has tap danced all around but refused to disavow in his confirmation hearings. And now we also know it because a small group of leaders in Congress removed a provision in new intelligence reform legislation that would have barred intelligence officers from using torture, "inhumane treatment," or other extreme interrogation methods. This provision would also have made the CIA as well as the Pentagon accountable to Congress for the interrogation methods they were using. This legislation was passed by the Senate -- with this provision in place -- but after the White House made it clear to senior Congressional leaders that Bush wanted those restrictions out, they were taken out. So clearly there is a policy allowing, and even encouraging, torture of Iraqi and other Muslim and Arab detainees.

So it's one thing to say that Graner had the obligation to refuse orders he knew, or should have known, were illegal. It's another thing entirely to exploit that obligation to let the higher-ups who gave those orders, and the architects of the interrogation policy that gave rise to those orders, off the hook. To punish the people who implement the policy while leaving the policy itself intact is not only pointless; it's immoral.