The Ethics Scoreboard has reached an ethical conclusion that will infuriate liberals and conservatives equally, and it involves the parallel dilemmas of two very different people: the Maryland housewife who murdered her husband after he raped and abused their teen-aged daughter, and the Marine who shot the unarmed and wounded Iraqi prisoner during the combat in Falluja.

We begin with the Marine, who is the latest unwilling participant in an age old moral/legal/ethical problem that only becomes more difficult with each new war. The conditions of combat place human beings under unbearable and extraordinary circumstances of stress that can and have provoked decent and good men to perform terrible acts. Is it just for those judging these acts to place standards on combat behavior that they cannot say with any confidence that they could meet themselves, if placed under the same conditions?

The United States walked right into this one when it launched the first international war crimes trial at Nuremberg after World War II. Nobody doubted that what the Nazis had done to Jews and others during the war was monstrous, but subjecting it to official and legal condemnation under the category of “war crimes” was, and remains, problematical. The tribunal at Nuremberg would not accept “following orders” as a defense, but neither does the US military permit soldiers to pass their own moral judgements on which orders they will obey.

Ultimately, the importance of officially condemning the atrocities of the Holocaust was determined to be more important than consistency. What the Nazis did could not stand unpunished, even though, in truth, there were bound to be actions by American soldiers in future wars that could be called war crimes under the Nuremberg definition. There were such actions during W.W. II: should the crew of the Enola Gay have refused to drop the atom bomb?

As troubling as this problem is, the war crimes dilemma becomes even worse when applied to individual battle situations. Every veteran of every American war, if he saw substantial combat, will say that he saw soldiers violate the rules of war on occasion, and that it was inevitable. Even such flag-waving portrayals as the D-Day film “The Longest Day” include such moments: in one, Americans who have finally scaled the rocks on Omaha Beach encounter German soldiers who approach, unarmed, with their hands raised crying “Bitte! Bitte!” (“Please! Please!”). The American soldier guns them down nonetheless, then asks a comrade, “I wonder what bitte bitte means.”

The fact is that in combat, it is not always so easy to determine whether the enemy soldier is still dangerous, and in locales like Viet Nam and Iraq, where the so-called “rules of war” have frequently been used by enemy combatants to cause US soldiers to lower their guard with fatal results, this is doubly so. Thus it is not surprising that many have risen to the defense of the unidentified soldier who was photographed by a journalist as he shot a prone, wounded, and apparently unarmed Iraqi. One of the most eloquent came in the form of an e-mail message to the conservative blog Powerline (www.powerlineblog.com) from another Marine stationed in Iraq:

This is one story of many that people normally don’t hear, and one that everyone does.

This is one most don’t hear:

A young Marine and his cover man cautiously enter a room just recently filled with insurgents armed with Ak-47’s and RPG’s. There are three dead, another wailing in pain. The insurgent can be heard saying, “Mister, mister! Diktoor, diktoor(doctor)!” He is badly wounded, lying in a pool of his own blood. The Marine and his cover man slowly walk toward the injured man, scanning to make sure no enemies come from behind. In a split second, the pressure in the room greatly exceeds that of the outside, and the concussion seems to be felt before the blast is heard. Marines outside rush to the room, and look in horror as the dust gradually settles. The result is a room filled with the barely recognizable remains of the deceased, caused by an insurgent setting off several pounds of explosives.

The Marines’ remains are gathered by teary eyed comrades, brothers in arms, and shipped home in a box. The families can only mourn over a casket and a picture of their loved one, a life cut short by someone who hid behind a white flag.

But no one hears these stories, except those who have lived to carry remains of a friend, and the families who loved the dead. No one hears this, so no one cares.

This is the story everyone hears:

A young Marine and his fire team cautiously enter a room just recently filled with insurgents armed with AK-47’s and RPG’s. There are three dead, another wailing in pain. The insurgent can be heard saying, “Mister, mister! Diktoor, diktoor(doctor)!” He is badly wounded. Suddenly, he pulls from under his bloody clothes a grenade, without the pin. The explosion rocks the room, killing one Marine, wounding the others. The young Marine catches shrapnel in the face.

The next day, same Marine, same type of situation, a different story. The young Marine and his cover man enter a room with two wounded insurgents. One lies on the floor in puddle of blood, another against the wall. A reporter and his camera survey the wreckage inside, and in the background can be heard the voice of a Marine, “He’s moving, he’s moving!”

The pop of a rifle is heard, and the insurgent against the wall is now dead. Minutes, hours later, the scene is aired on national television, and the Marine is being held for committing a war crime. Unlawful killing.

And now, another Marine has the possibility of being burned at the stake for protecting the life of his brethren. His family now wrings their hands in grief, tears streaming down their face. Brother, should I have been in your boots, I too would have done the same.

For those of you who don’t know, we Marines, Band of Brothers, Jarheads, Leathernecks, etc., do not fight because we think it is right, or think it is wrong. We are here for the man to our left, and the man to our right. We choose to give our lives so that the man or woman next to us can go home and see their husbands, wives, children, friends and families.

For those of you who sit on your couches in front of your television, and choose to condemn this man’s actions, I have but one thing to say to you. Get out of your recliner, lace up my boots, pick up a rifle, leave your family behind and join me. See what I’ve seen, walk where I have walked. To those of you who support us, my sincerest gratitude. You keep us alive.

He is right, of course. How can one argue that he is not right? And yet support, sympathy, empathy, knowledge, gratitude and understanding cannot wipe out a simple fact: shooting an unarmed and wounded enemy combatant does violate the laws, not to mention the ethics, of war. An army, a country, a nation that allows that act to occur unpunished, even if we grant that it may have been all but unavoidable, and that it may have taken superhuman self-control and foresight not to do it, has opened the gates wide for the darkest human instincts, the kind that flourish in times of war.

There may be good reason to excuse a soldier who shoots surrendering enemy soldiers who just moments earlier had fired upon and killed a comrade. A soldier in the Viet Nam war who saw others die at the hands of un-uniformed women and teenagers wielding grenades and explosives could be excused for seeing other women and children as threats, and responding with deadly force. But we and the military that represent us cannot excuse these acts and let them pass without re-asserting the basic values that have been violated. If someone isn’t punished for the act, then the act is no longer forbidden. It will become more common, and more acceptable. Eventually, such acts will arise out of less stressful and extenuating circumstances, or perhaps with no provocation at all. Excusing the justifiable violation makes the unjustifiable violation that much more certain

And so it is with Laura Rogers, who killed her husband in April, shooting him as he slept and later claiming it was a suicide. Walter Rogers had raped and impregnated her teenage daughter, a child from a previous marriage. And the day before Laura Rogers leveled a shotgun at her husband’s head, she watched a videotape he had made of the sex acts.

An Anne Arundel County (Maryland) Circuit Court judge set her free, suspending a ten year sentence. The judge said her husband was a monster, and so he was. Every mother, every feeling human being has to sympathize with Mrs. Rogers, an abused woman who finally snapped. But the fact is that she did not have to kill her husband. She could have brought the video to the police; she could have worked within the system, as the law requires us to do. There are defenses for murder, but realizing that your husband is an inhuman monster isn’t one of them. The judge’s action guarantees…guarantees…that some other monstrous husbands, or perhaps just cruel husbands, or maybe just despicable husbands will be dead at the hands of their abused wives, with no judge or jury passing legal judgments on them. That will be wrong. If Laura Rogers’ husband was worth shooting against all the laws in Maryland and the U.S., then Laura should be willing to accept punishment for the act, and we should insist that she get it.

A stressed and traumatized soldier and a protective and outraged mother may have excellent reasons to break the rules, but if the rules are worth keeping, we have to make sure they don’t stay broken. Sadly, that can only mean some measure of punishment for those who find themselves in circumstances where the very rules we need to preserve seem absurd and unjust.