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by Paul Rockwell
Watada's war:
First Lt. Ehren Watada appears with his father (left) and meets the
press (right) to discuss his refusal to deploy to Iraq. Photos by
Jeff Paterson
1/24/07
It is a sad day in
American jurisprudence when a soldier of conscience is court-martialed —
not for lying, but for telling the truth; not for breaking a covenant
with the military, but for upholding the rule of law in wartime.
The court-martial of
First Lt. Ehren Watada is set for Feb. 5 in Fort Lewis, Wash. The
28-year-old soldier from Hawaii is the first commissioned officer to
refuse deployment to Iraq. He is charged with "missing movement" and
"conduct unbecoming an officer" including the "use of contemptuous words
for the President."
The story has
received a fair amount of media attention, in part because the Pentagon
is trying to force three journalists to testify against Watada (see "A
Reporter Stands Up to the Army," 1/10/07).
But the soldier's
story is significant on its own.
A year ago, when
Watada was on leave and out of uniform, he delivered a moving address to
a Veterans for Peace convention. Watada is not a conscientious objector.
He even offered to serve in Afghanistan.
But he questioned
the legality of the war in Iraq, and he denounced the known lies of the
George W. Bush administration. He said nothing more than what the world
already knows, and he did not encourage any other soldiers to follow his
example.
All the major issues
of the Iraq fiasco — the fraudulent basis for the war, the absence of a
formal declaration from Congress (which has no constitutional authority
to transfer its war-declaring power to another branch), the war crimes,
the flagrant violations of international treaties such as the United
Nations Charter — are coming to a head in this historic battle between a
junior officer and an army whose Abu Ghraib torture scandals shocked the
world.
Ordinarily, the
truth of a claim is a strong defense against any charge of defamation.
Not in the Army, however. Army prosecutors do not intend to allow Watada
any opportunity to prove in court that everything he said about the
president is true. Prosecutors told the presiding judge, Lt. Col. John
Head, that the truthfulness of Watada's speech is irrelevant to the
case.
THE WAR OF CHOICE
On the charge of
refusing deployment, Watada's case may seem weak — he is, after all, an
officer in the military, and he has failed to obey a direct order to go
to Iraq. But his defense actually has legal merit: his actions are based
on hard evidence about military conduct in Iraq and a clear
understanding of the law.
Watada is raising
matters of principle that concern the right of all soldiers to full
protection of the law. Under the Constitution and the standard
enlistment contract, every soldier has a right, even a duty, to disobey
illegal orders. The legality of Watada's orders pursuant to a "war of
choice" is the central issue of the trial.
"The war in Iraq is
in fact illegal," Watada told TruthOut.org. "It is my obligation and my
duty to refuse any orders to participate in this war. An order to take
part in an illegal war is unlawful in itself. So my obligation is not to
follow the order to go to Iraq."
No American soldier
has any obligation to participate in military aggression, "crimes
against peace," or any operation that violates the Geneva Conventions.
Under constitutional government, the authority of military command
derives not from one person alone but from the rule of law itself.
There are only two
conditions in which a war is legal under international law: when force
is authorized by the United Nations Security Council or when the use of
force is an act of national self-defense and survival. The UN Charter,
based on the Nuremberg Principles, prohibits war "as an instrument of
policy." And the war in Iraq is just that — a war of choice.
There is a common
tendency among lawyers and military commanders to sneer at international
law. But the Constitution is unambiguous: Article VI states, "All
Treaties made, or which shall be made, under the authority of the United
States, shall be the supreme Law of the Land and the judges in every
State shall be bound thereby."
In a celebrated case
in 1900 (United States v. Paquete Habana), the Supreme Court ruled,
"International law is part of the law of the United States and must be
ascertained and administered by the courts of justice of appropriate
jurisdiction as often as questions of right depending upon it are duly
presented for determination."
There is no
exception for the military, no wall between domestic and international
law.
In his speech to the
veterans Watada noted that the US Army Field Manual states, "Treaties
relating to the law of war have a force equal to that of laws enacted by
Congress. Their provisions must be observed by both military and
civilian personnel with the same strict regard for both the letter and
spirit of the law which is required with respect to the Constitution and
statutes...."
Protesters
gather outside Fort Lewis in Washington in support of First Lt. Ehren
Watada's resistance. Photo by Jeff Patterson
THE POLITICAL
QUESTION
In the end, though,
none of that may matter.
The strength of
Watada's legal case will make little difference if Army prosecutors
succeed in preventing him from presenting evidence in his own defense in
court, especially if judges adhere to the Machiavellian view that "in
war, the laws are silent."
The American
judiciary has a long, sorry record of ignoring the right of American
soldiers to due process and the treaty clause and war-power clause in
the Constitution. Too often, judges and prosecutors, both military and
civilian, claim war is a political question, a foreign policy matter,
something beyond judicial review. Hence, commanders can do as they
please, and those who disagree can be imprisoned.
The political
question doctrine, as it is known among lawyers, is the primary way by
which judges circumvent international law. It is a way by which prowar
judges and commanders foreclose any substantive discussion of the
legalities of a war.
Few Americans
remember the dark days of wartime jurisprudence four decades ago, when
US courts refused to hear GI challenges to the Vietnam War. The full
implications of the Watada trial can be understood in that context.
In the mid-1960s and
early 1970s, American soldiers and marines were imprisoned for refusing
to commit war crimes. For example, Dr. Howard Levy, a Green Beret
dermatologist, spent two years in prison after he refused to train
special forces in dermatology. He argued that to do so would violate the
Hippocratic Oath; the Green Berets, he insisted, used medicine as a
political tactic in Vietnam, and for him to assist them would cause
increased suffering.
In 1965, David Henry
Mitchell II, who was eventually convicted of willful failure to report
for induction, challenged the legality of Lyndon Johnson's war. He
raised basic constitutional issues: the absence of a formal declaration,
broken treaties, a pattern of war crimes on the battlefield. No soldier,
Mitchell argued, should be forced to participate in criminal policies,
to choose between near-sedition and the commission of war crimes.
Federal Judge
William Timbers refused to hear the evidence. When Mitchell's attorneys
argued that under the Nuremberg Principles soldiers have a duty to
disassociate themselves from war crimes, the judge freaked out. It is,
he said, "a sickening spectacle for a 22-year-old citizen to assert such
tommyrot." The judge argued that treaties and conventions are "utterly
irrelevant as a defense on the charge of willful refusal to report for
induction." The message was clear, and a deadly precedent was set: even
if war is manifestly illegal, soldiers are still expected to
participate. United States v. Mitchell was the first in a series of
infamous cases through which courts placed presidential war beyond the
arm of the law.
In a 1966 ruling
against Army Private Robert Luftig, Federal Judge Alexander Holtzoff
ruled that the war "is obviously a political question that is outside
the judicial function." With "no discussion or citation to authority,"
the Federal Appeals Court concurred. In the most celebrated trial of the
period, that of the Fort Hood Three — soldiers who demanded the
protection of the Constitution and international law — District Judge
Edward Curran refused to hear any evidence of systematic war crimes. He
called the war a political issue beyond judicial cognizance.
Taken together, the
Vietnam War rulings contradict the landmark precedent Marbury v.
Madison. In 1803, Chief Justice John Marshall captured the essence of
judicial abdication: "It cannot be presumed that any clause in the
Constitution is intended to be without effect.... To what purpose are
powers limited, and to what purpose is that limitation committed to
writing, if these limits may, at any time, be passed by those intended
to be restrained?... It is emphatically the province and duty of the
judicial department to say what the law is."
In this case the
argument is particularly clear: Watada is not taking a political
position as part of his defense. The United States may be overextended;
the invasion may create blowback; unilateral actions may alienate
allies; war debts may boomerang on the economy; anarchy in Iraq may be
unavoidable. These are political questions, but they aren't what the
first lieutenant is talking about. Watada is challenging the legality,
not the political wisdom, of the war.
The president, he
argues, is the final arbiter of foreign policy — but only so long as
policies are carried out in accordance with the rule of law.
SAME OLD STORY
History has long
since vindicated the soldiers of conscience who spoke out against the
Vietnam War — soldiers who tried, albeit unsuccessfully, to uphold the
Constitution and international law; soldiers who warned their beloved
nation long before the My Lai massacre of America's impending descent
into barbarism. How many Vietnamese lives could have been saved? How
many American soldiers might be home today with their grandchildren had
American judges as well as presiding military commanders confronted the
legal monstrosities of the war against Vietnam?
The cost of judicial
abdication in the Vietnam War years, when American judges averted their
eyes from the emerging holocaust in Indochina, is incalculable. Without
judicial immunity, many of the horrendous deeds of the Johnson-Nixon
years might never have occurred.
There were more than
a dozen opportunities for American judges to confront the constitutional
issues evoked by that undeclared war. When Supreme Court Justice William
O. Douglas, who publicly acknowledged the illegality of US invasions in
Indochina, offered to hear a war-challenge appeal, his colleagues on the
court overruled him.
So today we ask: How
many more Iraqis and Americans will die before American judges fulfill
their current obligation to uphold and enforce the rule of law? How long
will it be before the infamous Vietnam War rulings are reversed, before
the blood-drenched political question doctrine is buried for good?
Lt. Col. Head,
presiding at Watada's court-martial, is already preparing to repeat the
follies of the past. At a pretrial hearing Jan. 17, he denied all
defense motions to present hard evidence of systematic war crimes in
Iraq. He rejected the Nuremberg defense. He also upheld a pivotal
government motion "to prevent the defense from presenting any evidence
on the illegality of the war." Like past accomplices, he claimed that
Watada's case is a "political issue" beyond the jurisdiction of the
court.
Capt. Daniel Kuecker,
the prosecutor in the pretrial hearings, could not be reached for
comment, but Watada's civilian attorney, Eric Seitz, expressed outrage
at Head's judicial abdication. These rulings, he told the press after
the hearing, "are extraordinarily broad and subjective, which I find
reprehensible. They are essentially saying there is no right to
criticize, which we all know is not true." He added, "These rulings are
about as horrible and inept as I could have imagined."
The question can no
longer be avoided. Do American soldiers have any rights that their
commanders and judges are bound to respect? As civilians, do we not have
an obligation to provide our troops full protection of the laws for
which they risk their lives? *
Paul Rockwell,
who taught constitutional law at Midwestern University in Texas, is the
author, with Cindy Sheehan, of Ten Excellent Reasons Not to Join the
Military, published by New Press in 2006.
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