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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.
Thank You Lt.
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
(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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