Laud to Lt. Watada
From an LA Times report on Lt. Watada we are told in the first paragraph:
The Army had treated him with the utmost respect until the moment it decided to court-martial him. It was nothing personal. The Army does what it has to do.
Later in the same piece:
The Army does what it must to function. Military culture has always presumed that individuals lose certain kinds of freedom when joining the armed forces.
All hail to the Army - it can do no wrong, it does what it has to do.
But then, near the end of the piece, the such lauded Army shows another, ahem - more personal, face:
During what was supposed to be a casual football scrimmage among officers late last year, two majors "accidentally" broke Watada's nose. One major shoved, the other smacked. Watada for weeks walked around with two black eyes, a crooked beak and a sneaking hunch it was no accident.
As Paul Craig Roberts writes:
A state that cannot tolerate moral conscience in its soldiers is a failed state. The failure of the American state can be seen it its prosecution of Lt. Ehren Watada.
Let me add:
The failure of the American Army can be seen in the handling of Lt. Watada. The failure of the American press can be seen in its propaganda reporting on the case without even touching the basic question involved - the legality of the war on Iraq and the duty of soldiers to refuse taking part in illegal wars.
Number VI of Principles of the Nuremberg Tribunals states:
The crimes hereinafter set out are punishable as crimes under international law:
- Crimes against peace:
- Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
- Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
Lt. Watada is to be lauded for his courage to stand up for the law by refusing to take part in a War of Aggression.
Posted by b on February 5, 2007 at 17:52 UTC | Permalink
b
"to be lauded" (i think)
by the way - an expert from JANES sd today ther was now a 50/50 possibility of an attack on iran before april
Posted by: remembereringgiap | Feb 5 2007 18:29 utc | 2
I am a little torn on this. seems to me if you sign up to do something you need to follow through.
if he had been drafted I could agree but he made the choice to join the army. there were some medical reservists who whined about GW1 as I recall. they didn't want to go either and I thought that was little self serving. apparently they joined the military to get their college loans paid off and to play golf.
according to wikipedia, Watada does not have trouble with war, only the war in Iraq. soldiers usually do not get the choice of picking their battles. it is interesting that Lt Watada could theoretically have shot a soldier under him for refusing an order in time of war, that stuff doesn't happen so much any more but no jury would convict an officer for doing so. there does need to be order and discipline in the military.
I personally like the idea of the military being under civilian control. the last thing we need are military officers deciding who and where they will fight. if they are ordered into war by a civilian admin they need to salute smartly and carry on. If the soldiers disagree they can either change the civilian admin through voting or get out of the military.
he will be punished and the structure of the military depends on this not being allowed to stand. he should have told his superiors that he could no longer control his homosexual urges and got out that way. he will not be allowed to make a statement.
let the flames begin
Posted by: dan of steele | Feb 5 2007 18:38 utc | 3
dan
i think the lt has made perfectly clear that he is oppossed to this war because it is illegal & that he is simply following the conventions of nuremburg
Posted by: remembereringgiap | Feb 5 2007 18:47 utc | 4
the last thing we need are military officers deciding who and where they will fight. if they are ordered into war by a civilian admin they need to salute smartly and carry on. If the soldiers disagree they can either change the civilian admin through voting or get out of the military.
Dan I totally disagree here (btw: I have been an Lt myself.)
The legal case is totally clear. A soldier has to reject unlawful orders. (I have done so twice during my time.) People have been hanged in the Nuremberg trials for not doing so. This is international law as accepted by the U.S.
If the war on Iraq is illegal, and the head of the UN said it is, it is the DUTY of a soldier to refuse to service in that war.
If he does not refuse, he can and should be tried in court for not doing so.
b:
The legal case is totally clear. A soldier has to reject unlawful orders. (I have done so twice during my time.) People have been hanged in the Nuremberg trials for not doing so. This is international law as accepted by the U.S.
If the war on Iraq is illegal, and the head of the UN said it is, it is the DUTY of a soldier to refuse to service in that war.
If he does not refuse, he can and should be tried in court for not doing so.
Please oh pretty please, a post on this? It is soooo important and US education does NOT touch on this!
Posted by: Bea | Feb 5 2007 19:11 utc | 6
I should have said, "another post on this" since THIS post obviously opened the topic. But more, more, more is needed.
Thanks!!
Posted by: Bea | Feb 5 2007 19:12 utc | 7
bea
if my memory is not completely addled - i remember a post by b in relation to the war in iraq - some years ago - which covered this very well
Posted by: remembereringgiap | Feb 5 2007 19:34 utc | 8
the way I see it when it comes to disobeying an unlawful order it would be something like refusing to shoot a bunch of nuns or children, or perhaps shelling a hospital. the trials at Nuremberg dealt with horrible crimes against civilians and was more a case of revenge than actual justice. for brutal murder of helpless civilians, rope needed to be reserved for Bomber Harris for what he did to Dresden.
Soldiers, especially lieutenants and below, are rarely held responsible for such massive crimes. that is, except when a scapegoat is needed to pacify public opinion and those are not cases tried by the victors but by the nation itself.
what bothers me is that he is perfectly OK with killing Afghanis who no more attacked the US than did Iraq. How does he make this moral judgment?
the last thing I want anyone to do is to blame soldiers for killing. that is what they are paid to do. it can not be up to them to decide who and when to kill (you know what I mean, I am not suggesting they can not choose between "legitimate" targets and murder). that responsibility lies with the civilian government and ultimately with the voters and taxpayers.
Posted by: dan of steele | Feb 5 2007 19:37 utc | 9
I'm certainly in approval of military protesting and refusal to serve illegal wars, but the apocalyptic statements like "A state that cannot tolerate moral conscience in its soldiers is a failed state. The failure of the American state can be seen it its prosecution of Lt. Ehren Watada." are simply ahistorical. In most wars throughout history, deserters were executed. "Moral conscience" was not supported, rather, it was simply not a consideration.
The typical definition of "failed state" is not "a state which goes to war." I might be able to get behind such a definition, but right now, that's just bunk. Watada getting a trial is a measure of progress in the normally brutal military treatment of objectors.
Posted by: Rowan | Feb 5 2007 19:39 utc | 10
To put it bluntly, the precedents set at Nuremburg only apply to the losers (then as now). As it is the major powers and not the facts that decide who the winners in any war are, their leaders know that they will never be held accountable in an international court for their actions. Nor will any soldier in their service who 'was only following orders'.
Posted by: aubanel | Feb 5 2007 20:03 utc | 11
the last thing I want anyone to do is to blame soldiers for killing. that is what they are paid to do.
Why not? This isn't even a draft situation. Kids are getting on planes, picking up weapons and killing innocent people in other countries -- of their own free will. Why can't they shoulder the blame and horrible responsibility of their actions?
the military is beholden to people who don't question authority to carry out illegal wars.
Posted by: annie | Feb 5 2007 23:51 utc | 13
the trials at Nuremberg dealt with horrible crimes against civilians
... and the war in Iraq has not had its fair share of such crimes? Even the initial "shock and awe show" was a "horrible crime against civilians" by any measure, in my view. And they have continued to occur on a daily basis, most probably.
Posted by: | Feb 6 2007 0:47 utc | 14
Bea is correct, this is an important topic and needs to be debated. It is a story that should be discussed in every home, school and business in America. This story has been purposely ignored and underplayed by the mass media.
What is wrong? Not even our elected representatives will discuss the most important of issues…just look at this breaking news story of the last hour:
">http://abcnews.go.com/Politics/wireStory?id=2851177"> Republicans Block Senate Debate on Iraq
[snip]
The vote was 49-47, or 11 short of the 60 needed to go ahead with debate, and left the fate of the measure uncertain.
[snip]
They won’t even allow debate – this would be amazing but for the fact that we have all seen this scenario time and time again.
I hope this off topic link regarding U.S. rethugs does not hamper or stop the discussion here about Lt. Watada.
Regarding my thoughts on Lt. Watada – although I have never served in the military, I echo B’s comments exactly. If the war is illegal or an immoral war, such as a war of choice and not self-defense, then a soldier has an obligation to disobey orders.
As an aside, Rowan’s comments are valid, but also a side issue.
Posted by: Rick | Feb 6 2007 1:11 utc | 16
rick
while lt watada reveals how an honorable human being might behave - that abramoff & delay whorehouse they call 'legislative' shows exactly how shame & dishonour are enacted in these darkest of times
Posted by: remembereringgiap | Feb 6 2007 1:46 utc | 17
their leaders know that they will never be held accountable in an international court for their actions.
I am not sure you are correct on this. I can easily see the whole lot of them going on trial for this war. I know it is a slim possibility, but I do believe there is a possibility. There are already charges against Rumsfeld in, I believe, Germany. This war has been a massive crime on a scale unprecedented in American history, and the extraordinary deceit and manipulation of government that has been committed to facilitate it is also unprecedented. Certainly if it progresses to an invasion of Iran, there will be a price for this lot to pay.
Posted by: Bea | Feb 6 2007 2:09 utc | 18
the military is beholden to people who don't question authority to carry out illegal wars.
it seems that some are blaming the military for all the woes that are Iraq. WTF? The people of the United States through their democratically elected Congresscritters passed an Authorization for Use of Military Force Against Iraq Resolution of 2002 It authorized the United States to use military force to "defend the national security of the United States against the continuing threat posed by Iraq".
as I recall, support for the invasion was around 80 percent or so which means that even people who didn't vote for the republicans in power were quite OK with it.
If the war is illegal or an immoral war, such as a war of choice and not self-defense, then a soldier has an obligation to disobey orders.
going back 50 years or so, do you think you could point out a legal and moral law that the US has participated in? why is it the soldier's job to determine legality and morality? is that what you really want the military to do for you?
Lt Watada took an oath when he was commissioned;
I, _____ , having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.
If you want to protest a war you do it as a civilian.
Posted by: dan of steele | Feb 6 2007 2:21 utc | 19
why is it the soldier's job to determine legality and morality?
It is the soldier's job because he or she is the final one responsible for executing the order. According to international law, which is very clear, if an order is illegal, the soldier should resist. The soldier should not agree to commit a war crime.
I agree that the government is responsible for authorizing the war, but the soldier is responsible for carrying out the manifestly illegal order. And no, it is not common that soldiers who are trained to be obedient killing machines stop and think for themselves, but the law is clear in its expectation that they will do so. If you think about it, this would provide an excellent check against the wanton abuse of power such as we have witnessed with this war. Without the soldiers to carry out the orders, there can be no war.
Posted by: Bea | Feb 6 2007 2:28 utc | 20
but the soldier is responsible for carrying out the manifestly illegal order
Bea, how can the war be illegal if it is authorized by the US Congress and ordered by the US President?
the war in Iraq is immoral to me and you, but it is not illegal according to US law. that is the only law that is relevant for Lt Watada or any other US soldier. The US has exempted itself from the International Criminal Court so as long as it can stay on top, the status quo will remain.
Again, these are decisions taken by the country at large, whether you agree with them or not. democracy is 51% telling the other 49% what to do.
Without the soldiers to carry out the orders, there can be no war. while true, it is not of this world.
Posted by: dan of steele | Feb 6 2007 2:48 utc | 21
dan of steele - of COURSE it can be illegal even if it is authorized by Congress! International laws -- to which the US is a signatory -- are above the decisions of the legislative decisions of any one government, to the best of my understanding. Do you think Israel's occupation of the West Bank and Gaza, for example, is legal just because it was authorized by the Knesset???
OK, now I am motivated to go and dig up more on this subject.
Posted by: Bea | Feb 6 2007 3:03 utc | 22
Do two (or more) wrongs make a right?
"going back 50 years or so, do you think you could point out a legal and moral law that the US has participated in?"
None that I can think of off-hand, but is that relevant to how one should morally act?
Posted by: Rick | Feb 6 2007 3:06 utc | 23
I, _____ , having been appointed an officer in the Army of the United States, as indicated above in the grade of _____ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.
And by the way, I don't see anything in this oath that would have required him to go and fight in Iraq. He took the oath to uphold and defend the Constitution of the United States, not to go and destroy another country. Iraq had done nothing whatsoever to threaten the Constitution of the United States when we invaded.
Posted by: Bea | Feb 6 2007 3:07 utc | 24
As a draft dodger living in Canada these last 29 or 30 years, I get a say.
The Lt. may be right but he also volunteered for the job. Did he not know what the job entailed? Its called the profession of arms. It has one purpose. To wreck havoc upon command.
Being drafted is one thing. Going through university on an ROTC stipend is - I'm sorry - you bought in. Those are the terms of employment.
Had he signed on with a contractor, he could simply tear up the paper and walk away - no 4 years in the brig.
Nurenbugh (sp) is for and from the winners - it don't mean shit to tree
Posted by: | Feb 6 2007 4:03 utc | 25
As a draft dodger living in Canada these last 29 or 30 years, I get a say.
The Lt. may be right but he also volunteered for the job. Did he not know what the job entailed? Its called the profession of arms. It has one purpose. To wreck havoc upon command.
Being drafted is one thing. Going through university on an ROTC stipend is - I'm sorry - you bought in. Those are the terms of employment.
Had he signed on with a contractor, he could simply tear up the paper and walk away - no 4 years in the brig.
Nurenbugh (sp) is for and from the winners - it don't mean shit to tree
Posted by: allen | Feb 6 2007 4:05 utc | 26
of COURSE it can be illegal even if it is authorized by Congress! International laws -- to which the US is a signatory -- are above the decisions of the legislative decisions of any one government, to the best of my understanding
you will get endless arguments on that. I doubt that you or anyone else wants to give up the sovereignty of the US to some faceless judge in Brussels. I am referring to the case of Lt Watada before the US legal system. he is being tried in the US at this time so it follows that the war was legal as it was authorized by the Congress.
Rick, I meant to write war instead of law, sorry for the confusion. the point is that you think it is OK to protest an unjust war which would open the door to everyone refusing to do what they were paid and trained to do whenever it suited them.
look at it this way, firemen can't really refuse to fight fires they don't believe in and doctors can't refuse to treat patients they don't agree with. Watada signed up for the whole package, buyers remorse is not anticipated in the military.
Posted by: dan of steele | Feb 6 2007 7:16 utc | 27
Lt. Watada may be breaking his word as a soldier, and not doing his duty, but he's doing the right thing as a human being. One's job is not one's life. And if one's job is not doing the right thing, then a human should stand up and not do that job, regardless of their contract. This ain't the Bhagavad Gita.
Posted by: Rowan | Feb 6 2007 8:04 utc | 28
let's look at this way. I am Don Corleone and I order a hit on Vito Tagliatelli. I send Lt Watada to whack Vito and he says he would happily whack someone else but not Vito. Keep in mind that Watada came to me for work and knew full well what it meant to earn his bones.
Now, I am faced with a bit of a dilemna. what am I going to do about Watada? Is he a friend of Vito? Gosh I don't know but I do know that he can no longer be trusted to carry out my orders.
there is no difference between my example and the real life example of Watada.
the ability of Watada to decide morality is a bit suspect in my opinion. I still want to know why he thinks killing Afghanis is OK but killing Iraqis is not. And what are his thoughts on killing Colombians, Ethiopians or Phillipinos since that is going on too.
Posted by: dan of steele | Feb 6 2007 8:19 utc | 29
it follows that the war was legal as it was authorized by the Congress.
i don't believe congress ever authorized war w/'terror'. the resolution was a resolution that authorized the president to take that action if he deemed it necessary.
doctors can't refuse to treat patients they don't agree with.
they can refuse to follow thru w/a diagnosis they don't agree with.
we have a moral duty first and foremost to ourselves and our own conscious. i can understand someone joining the military w/out anticipating the commander in chief would go on some neocon zionist version of divide and conquer. maybe he had faith in our leadrship when he joined. maybe that faith got shattered and he believes he has sold his soul to the devil. he may not believe the military is the devil, or america is the devil but he may believe his country is acting as a host agent to the equivalence of an evil virus that has invaded the body of his government.
Posted by: annie | Feb 6 2007 8:24 utc | 30
there is no difference between my example and the real life example of Watada.
actually there is a very big difference. the mafia is an organization that one would have to be morally challenged to ever join. that is not the case for someone choosing to defend their country whom one would presume has moral leadership.
lol, i am surprised w/you of all people dan. using a mafia analogy to describe the military.
Posted by: annie | Feb 6 2007 8:28 utc | 31
ps. here is the differnce between the authorization to go after 'terror' in afghanistan vs iraq. there were (supposedly) agents there who attacked us. they had base camp there that hosted these agents, we supposedly were trying to eradicate these agents of 'terror'.
iraq was a secular country who never harmed us in any way. clearly we didn't go there to find AQ. we went there for an oil lie. AQ followed. we brought terror to iraq.
no one expects soldiers to be political scientists. we axpect, demand (or should) responsible leadership. when you sign up for the military you should have a sense the people who are leading you are of sound moral character. at some point along the way Watada lost that sense. it is his moral duty to himself and his god not to follow evil.
Posted by: annie | Feb 6 2007 8:36 utc | 32
If the military wanted to do its duty, the oath is pretty obvious. it has to depose BushCo, get rid of the whole corrupt and illegal freak circus now. Fighting in Iraq, and in fact even objecting, are way below what constitutional duties the US Army should comply with.
That said, since it's now a volunteer army, I'm quite definitive in my statement that if you join the Army, you're either a complete idiot or a psychopath - possibly both. Ultimately, if you don't want to get into trouble with wars you don't like, "the best way is not to play". Just don't go, don't enlist, let the reactionary mofos join the army and get butchered in Iraq.
Unless your army is purely defensive - and a purely defensive army should be obvious to anyone in that most of its training consists of practicing guerrilla, not open warfare on battlefield with big guns, tanks, airplanes, ships -, your army is not worth fighting for, it's just another bloodthirsty beast waiting to be unleashed upon the world - and in this regard, there's basically no army in the world that isn't a blood-thirsty beast who deserves to be culled, including the lot of "Western democrcies"' ones.
That said, once the completely fucked-up thing is done - enlisting -, Watade is doing the right thing. Just way too late.
"the last thing I want anyone to do is to blame soldiers for killing. that is what they are paid to do."
This is totally wrong. Soldiers kill, they're bloody killers and should be considered as such by any sane human being. There's no essential difference between the average trooper and Charles Manson, both are fine with killing other people who did nothing to them.
Posted by: CluelessJoe | Feb 6 2007 8:47 utc | 33
annie, watching the way things work in Washington and around the world it is painfully obvious that government is mafia on a bigger scale. don't you find it odd that mafia exists quite happily with "legitimate" government. the government has paid assassins and they are respected by society just as hit-men are.
every society has a defense force, even the Swiss held a referendum some years ago on whether to maintain a military. they hadn't been attacked in several hundred years yet they decided to keep theirs.
I will grant that some soldiers are bloody killers and this may be necessary. if some bad ass were coming to stomp you and your family into the dirt you would probably want someone to protect you who was not afraid of confrontation. my point is that we as citizens give them legal and moral cover to do that. if we as a society no longer wanted a military those guys would have to go back to freelance killing.
Posted by: dan of steele | Feb 6 2007 9:36 utc | 34
This is a business dispute.
The moral line in the sand that Lt. Watada originally crossed is agreeing to kill complete strangers on command for the organization he belongs to. He agreed to be a paid killer.
Ours is not a volunteer army, it is a hired army; there is a two-way contract in place, and it is enforceable. If the Lt. had been drafted (which is an act of enslavement), he would be on firm ground. As it is, he is merely cheating on his end of a contract.
To a paid killer, whether working for the mafia, the KGB, a Jamaican posse, the Crips, or the US government, "it's nothing personal -- it's just business." The hired killer has agreed to kill for the business interests of the entity he joined -- in exchange for pay in various forms. The Army contract does not spell out any terms for when he will obey the order to kill. He is agreed to kill on command, as a tactical act of war, and leave the strategic responsibility for its rightness or wrongness to his superior officer(s).
Lt. Watada has not stepped back across that original moral line. He is still a hired killer. He has not repudiated the contract. He is still happy to kill complete strangers on demand for the US government, only now he wants it to be whenever and wherever I agree with the strategic goal of such killing.
Rest assured, he will promptly kill you, me, or anyone at all if his organization commands it -- and he happens to agree with the why of it.
So, this is not a high minded moral dispute or debate at all. This is more like a whore suddenly announcing that she won't do the Irish trade. This is a business dispute between him and his employer. He's trying to sweeten his contract; he's trying to adjust the terms a bit.
The Army has zero interest in opening that Pandora's Box, naturally. They have to know that you are all the way in, or all the way out.
Lt. Watada could put a stop to all this right this moment, by stating that he has had a change of heart, and will henceforth not kill for the US Army under any circumstances, as he no longer is morally prepared to do so. He can become a Conscientious Objector in one second.
The Army would be relieved; they are all set to handle that kind of thing. Soldiers change their minds about killing every day of the year, and there is a routine way to expedite those people out of the ranks.
But to renegotiate the killing contract as you go along? No chance whatsoever, not on a legal or moral basis. Not on the basis of common sense. Not in the mafia, and not in the Army.
It is no different than a policeman in my little Southern town letting it be known that he will no longer work on the south side of the tracks after today, only the better side of town. If condoned, his behavior would destroy the entire concept of policing.
Lt. Watada doesn't want out of the Army. He wants to feel better about who he shoots. I cannot call this courage.
Posted by: Antifa | Feb 6 2007 12:32 utc | 35
This is a fascinating and very important topic that is worth exploring further. I am not an expert by any means, but my general understanding is that the soldier is obligated to adhere to both international and US Army law while working on behalf of the military. If the war itself would be considered illegal under international law, then the soldier is obligated to resist it.
But even if the war IS legal, the soldier is absolutely mandated NOT to engage in illegal acts while waging it. The example that you cite dan, of doctors and firemen, is like comparing night and day. Doctors and firemen are obligated to save lives, not end them. Precisely because they are tasked with saving lives, they are not allowed to hesitate, even if the person they are charged with saving is someone heinous, or if the act would endanger their own lives (at least, as relates to firemen, who knowingly sign up to endanger their own lives in the service of saving others'). These are professions that help humans to live.
The soldier is the exact opposite. The soldier is tasked with causing humans to suffer and die. It is therefore of the utmost importance, according to the laws of war, that he constantly consider what he is doing/being ordered to do and ask whether it is legal under the various sets of laws that govern his behavior -- both military code and conduct, US law, and international law. According to the Constitution, “all treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” Therefore, in theory, I believe that the military is supposed to adhere to the treaties that the US has signed, such as the Geneva Conventions. In practice, however, the army may try to avoid setting such legal precedents and instead charge soldiers with violations of US army code.
For example, take the soldiers who have been charged with abusing prisoners at Abu Ghraib. They claimed they were only following orders. But this does not in any way spare them from the fact that they engaged in war crimes. Not only that -- soldiers who witness other soldiers commit war crimes and look on passively without interfering can also be charged.
Just scanning the first site I land on, which appears to be a compendium of legal resources put together by the US Air War College, I find this document: "Charging War Crimes: A Primer for the Practitioner," written a US Army lawyer. It analyzes the crimes committed by Lt Smith at Abu Ghraib and explains the legal ins and outs of how these crimes should be prosecuted -- in other words, which laws should Smith be accused of breaking? It is very interesting. If I am understanding correctly, the argument being made is that the army lawyers really prefer to charge their own soldiers with violations of US army code because they don't want to introduce precedents of charging soldiers with violations of international law -- even though these laws clearly, by virtue of the US Constitution, apply.
As far as our current argument, this passage stood out to me:
[BEGIN EXCERPT] Jordan Paust, former International Law professor at the Army Judge Advocate General’s Legal Center and School states that:
War crimes, including “grave breaches” of the Geneva Conventions, can be prosecuted either under 10 U.S.C. § 818 [Note: I believe this refers to a statute of the US Military Code of Justice] (which incorporates the laws of war as offenses against the laws of the United States) coupled with 18 U.S.C. § 3231 (which provides federal district courts with original, and at least concurrent, jurisdiction over any offense against the laws of the United States) or under 18 U.S.C. § 2441 (for “grave breaches” and violations of article 3 of the Geneva Conventions committed by U.S. nationals).
Prosecutors could also assimilate 18 U.S.C. § 2340A, which states that “torture committed by public officials under color of law against persons within the public official’s custody or control” is prohibited. “Torture is defined to include acts
specifically intended to inflict severe physical or mental pain or suffering.” Several of the acts committed by 1LT Smith would constitute torture under this definition; however, these acts should be charged under the enumerated offenses discussed above.
Defense of Following Orders
The MCM states that “It is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.” For a patently unlawful order, this defense does not apply. In United States v. Calley, the United States Court of Military Appeals stated the following:
A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the other hand, the obedience of a Soldier is not the obedience of an automaton. A Soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.
In the hypothetical, despite evidence that the chain of command implicitly or explicitly ordered Soldiers to commit the offenses described, the defense of “merely following orders” will not apply if “the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful.[END EXCERPT]
I suppose one could discuss this forever... I don't have more time today to explore it further, but the web site that I linked to has a myriad of information for anyone who is interested. It is definitely a topic I would like to understand better. I wish someone here did have the legal expertise to expand further. My knowledge on this is pretty limited.
Posted by: Bea | Feb 6 2007 12:39 utc | 36
Watada and Us
It is possible, in the face of Bea's evidence, to still argue that all this legal detail is still immoral, that soldiers are still, in Antifa's words, just wanting to feel better about whom they shoot.
But it may be more ethical (by which I also mean more effective) to recognize that a soldier like Mr. Watada is calling on the United States government to recognize the commitments it has made to practice war under law. Does it matter? Yes, because war under law is a step toward recognition of international government. And until we switch to that frame of mind, we will not ever solve global warming or any of the problems that threaten us as a whole. Until we agree to stop playing at competition and start working at making a single nation that identifies itself with the planet - until then we won't be able to stop destroying the planet by seeing the wealthy as living in one world and the poor in a separate unprotected one.
Yes, if you think its ridiculous to claim a soldier's position as one with legal obligations, then you are abandoning the claim of the weak to limit the strong. You are abandoning the work done by the political process from Machiavelli down to our time to separate the Prince from advocacy of the elites and instead make Princes claim their power through supporting popular rule. Just because our Prince is a dauphin does not mean we can make any other way to justice than to find ways to bind our Princes to us with law and a track record of better results.
When Althusser wrote Machiavelli and Us he was trying to articulate a sense of how politics is not just economics, and Althusser went to Machiavelli and all his work to show how Princes and people make claims on each other. Unfortunately for us, our Prince is a dauphin, and so he and the entire executive may be unreachable. But that doesn't mean we have any other pathway toward a government that serves us in return. Perhaps the dauphin's destiny is to fail because he is unreachable, and Watada's legal claim may be part of that process of convicting the Prince.
Mr. Watada's claim to live under law is a claim we should all wish to press on our governments. We would like the courts to recognize it, and we would like the generals to do the same. But if the government rejects the claim, it cannot dump Watada in the shit without rolling around and re-perfuming itself.
Soldiers are not just killers for hire. They are also people figuring things out bit by bit. I see no reason to demand Conscientious Objector behavior from someone who is not protesting killing, but rather rape, torture, and wholesale international chaos. Small gains are what we can make as humanity, so why not press the claim, even if all we get is a conviction of Watada that convicts the nation? This is a process of growing into citizens of the planet, and getting there may take a few governments demolishing their own claims to loyalty.
I would love for the U.S. government to live under its own laws, but it is not under my control if the government (in its military branch) convicts itself or not. I say, support Watada for giving us, the military, and the country a useful moment of clarity
Posted by: citizen | Feb 6 2007 15:01 utc | 37
Bea,
I really don't want to be a pain in the ass but you say the difference between firemen and soldiers is night and day. I take exception to that because when soldiers are defending in the real sense of the word, they too are saving lives. Often the mere presence of a strong and capable military will deter an attack. How many cops get mugged in Central Park?
thanks to all who took it easy on me. I am not a maggot or lifer and people who have spent time in the military know what those are. I do believe citizens must take responsibility for themselves and not turn everything over to the gummint. too many are quick to blame the government not ever realizing that they themselves are to blame.
that is one reason some people got so upset with Debs, he told us our baby was ugly and many are simply not prepared to hear that.
Posted by: dan of steele | Feb 6 2007 16:10 utc | 38
that is one reason some people got so upset with Debs, he told us our baby was ugly and many are simply not prepared to hear that.
i miss debs
Posted by: annie | Feb 6 2007 16:57 utc | 39
dan,
Truly, I hope you don't feel I was intentionally hard on you because I did not intend to be. I was just taking issue with your comparison but by no means did I mean to imply anything about you. If you took offense, I apologize - no offense intended.
Yes, in theory soldiers are saving lives, but as we all know, they are using violence and brute force to do so, which in the process also takes lives. So the line between legitimate and illegitimate uses of that force can be very, very thin -- and thinnest of all in wars such as that in Iraq, where the line between combatant and soldier has essentially vanished, and soldiers are being placed in impossible situations in which there is no way to know friend from foe. This is why it is ever more urgent to engage whole societies in debating how they want to allow that force to be deployed in their names.
I am with citizen on trying to move our government towards a higher ground, and to refuse to allow it to rip out from under us all the protections that our predecessors worked and fought for centuries to put in place. I want every American citizen to understand and be aware that this is exactly what the Bush administration is doing, and to fully appreciate the grave implications -- for all of us, and for the world at large.
Therefore, I join with b in lauding Lt. Watada. I do not mean, by doing so, to impugn anyone on this board or elsewhere who may ever have served in the military. I hope that is not how I've come across.
Posted by: Bea | Feb 6 2007 17:05 utc | 40
Here is a link to an interview with Watada last fall in which he speaks a bit to his reasons for refusing to serve. Not, to me, as compellingly as I would have expected, but I am contributing it here for the record:
AMY GOODMAN: How did you come to the conclusion -- you are the first officer to resist deploying to Iraq. How did you come to the conclusion that it was wrong?1ST LT. EHREN WATADA: For me, there were many things. The most important thing for me is that in our democracy, according to our constitution, one person, one man, cannot hold absolute power, hold himself above the law, including in actions in declaring war or waging war on another country. And it is my belief that in deceiving the American people, through which a majority of us now know to be true, the leaders of our country were violating their oath to this country and violating constitutional law. That was the main reason. Other things that led me to this decision was the rampant abuses of American and international law and the conduct of the occupation and then the conduct of this war. And I just felt that the policies that were made were forcing soldiers, including myself, to commit actions that violated international and domestic laws.
More interestingly, I thought, was this:
AMY GOODMAN: Have people in the military expressed their support to you publicly or privately?1ST LT. EHREN WATADA: Not publicly. I think a lot are taking a risk in using the military email servers to communicate to me their words of support and encouragement. But, yes, all over -- I don't know about the other services, but I know in the Army, there has been tremendous support from all ranks, from soldiers all around the country, all around the world, even veterans just coming back from Iraq, and certainly not in the majority, I would assume, in the military, but they are out there, many of them.
Posted by: Bea | Feb 6 2007 18:00 utc | 41
i feel a bit like a hit and run poster, but i am dug in deep with some personal work that is due on the 20th and have not read these comments as carefully as i normally would. one however stood out and it is antifa's remarks about conscientious objection:
Lt. Watada could put a stop to all this right this moment, by stating that he has had a change of heart, and will henceforth not kill for the US Army under any circumstances, as he no longer is morally prepared to do so. He can become a Conscientious Objector in one second.The Army would be relieved; they are all set to handle that kind of thing. Soldiers change their minds about killing every day of the year, and there is a routine way to expedite those people out of the ranks.
this has not been the case with the u.s. military over the last few years. they have not been accepting declarations of conscientious objection at face value, instead imprisoning some and terrorizing others. i am referring specifically to the case of kevin benderman and to a woman whose name escapes me at the momen but i will find when/if i have a mment later today. there will be others as well over iraq and i think of a diarist at dkos who is a likely candidate.
i think that iraq draws a line in the sand for many in the military. while i do not agree with watada's differentiantion between iraq and afghanistan, i know that many in the u.s. perceive the two very differently and think that we were right to invade afghanistan because the taliban harbored al quaeda. i do not agree with this position, but i am aware that it is common. i suuport watada in drawing this line in the sand and hope he inspires others in the military to do the same.
Posted by: conchita | Feb 6 2007 18:00 utc | 42
about debs - i too miss him terribly. have written to him - and told him we talked about him in hamburg - but have not heard back. i did see auckland on the site meter last night and hope he is lurking and will return.
Posted by: conchita | Feb 6 2007 18:04 utc | 44
There is a nice videotaped interview with Watada here. Of interest to me was his saying that the military gave them virtually no training on what might be legal or illegal in war; he had to learn all that on his own.
Posted by: Bea | Feb 6 2007 18:51 utc | 45
conchita,
That Kevin Benderman interview with Dan Rather noted that the Army opinion on Benderman's application for Conscientious Objector status was that Benderman didn't really come across to them as being someone who objected to combat per se, but rather that he objected to this particular combat in Iraq. Sounds like they're telling Benderman to be more like Watada.
Posted by: citizen | Feb 6 2007 19:28 utc | 46
citizen, my point exactly. there is no easy route for someone who disagrees with the u.s. military in iraq. in my view, watada is taking a courageous step forward. what are the choices - desertion, conscientious objection, or what he has done - promoting discussion and forcing the issue.
Posted by: conchita | Feb 6 2007 19:37 utc | 47
I'm starting to feel like an ambulance chaser: link">http://seattlepi.nwsource.com/local/302733_courtmartial07ww.html">link
Posted by: beq | Feb 7 2007 22:59 utc | 51
Sounds to me like the judge just wanted to skip out of this and did:
Watada court martial ruled a mistrial
The court martial of Lt. Ehren Watada ended unexpectedly today with the judge declaring a mistrial due to his misgivings about a pretrial agreement.In that agreement, Watada admitted that he missed his brigade's deployment to Iraq, an admission the judge said is enough to find him guilty.
But Watada, in tense questioning by the judge, Lt. Col. John Head, said he believed he still had a defense, that the war is illegal and would cause him to participate in war crimes.
He said he did not see the agreement as evidence of his guilt.
"I'm not seeing we have a meeting of the minds, here,," said the judge. " And if there is not a meeting of the minds, there's not a contract. Tell me where I'm missing something?"
Prosecutors attempted to allay Head's concerns, saying that they, too, did not view the agreement as an admission of guilt.
But the judge was not satisfied and told prosecutors that there was now a misunderstanding over the agreement.
I hate to get my hopes up but the Watada mistrial is encouraging. The poor bastard will probably be stuck in some legal limbo for the rest of his time in service and then quietly released from service.
anna missed asked the right question and apparently the judge heard him.
In the end, Seitz said, the problem was that the military did not want to discuss the reasons for his client's failure to deploy. "I think whenever a prosecutor tries to keep out the substance of why a person acted, when it relates directly to the charges that are there, it creates an untenable series of contradictions," he said.
I am most interested in seeing the next step.
Posted by: dan of steele | Feb 8 2007 11:44 utc | 54
rally photos. i noticed w/the msm coverage here they showed a solitary sean penn giving a speech careful not to record any documentation of the audience/protest. they did hpwever show a small group of pro government protesters, around 15=20 people w/signs. rally organizers courage to resist
Posted by: annie | Feb 8 2007 19:34 utc | 55
(counterpunch)
Mistrial at Court Martial
Watada Beats the Government
By MARJORIE COHN
When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court martial yesterday, he probably didn't realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.
Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.
The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.
The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States "
Lt. Watada said at a June 6, 2006 press conference in Tacoma, Washington, "The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war." He stated, "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."
Citing "deception and manipulation and willful misconduct by the highest levels of my chain of command," Lt. Watada declared there is "no greater betrayal to the American people" than the Iraq war.
The "turning point" for Lt. Watada came when he "saw the pain and suffering of so many soldiers and their families, and innocent Iraqis." He said, "I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable." Lt. Watada felt he "had the obligation to step up and do whatever it takes," even if that means facing court martial and imprisonment.
Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial.
This is what I would have said had I been allowed to testify at Lt. Watada's court martial:
The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
Bush's war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein's military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the "no-fly-zones."
Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.
The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.
Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial - for the commission of war crimes.
Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
The dropping of 2,000-pound bombs in residential areas of Baghdad during "Shock and Awe" were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a "weapons-free" zone, with orders to shoot anything that moved, was a crime against humanity.
Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote:
"No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge's grant of a mistrial precludes retrial on the same criminal charges.
Marjorie Cohn is a professor at Thomas Jefferson School of Law, a criminal defense attorney, and president of the National Lawyers Guild.
Posted by: remembereringgiap | Feb 9 2007 1:31 utc | 56
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today is the National Day of Action to support Lt Watada
Posted by: b real | Feb 5 2007 18:25 utc | 1