When/how may a soldier question war's legality
MichaelP
M.
###############
http://seattlepi.nwsource.com/opinion/334449_watada07.html
P-I (Seattle) October 5, 2007 4:04 p.m. PT
Watada: What's a (thoughtful) lieutenant to do? -- Catch 22 for the 21st
Century
By DEAN PATON --GUEST COLUMNIST
*Dean Paton is Seattle correspondent for the Christian Science
Monitor, where he first wrote about Watada.
Let's assume Lt. Col. John Head, the Army judge who presided over the
first court-martial of Lt. Ehren Watada last February, used impeccable
legal reasoning when he denied Watada the right to insist that the war in
Iraq is illegal -- which, the young soldier says, makes it his sworn
duty to protect the Constitution by refusing to fight in such a war.
The same judge will preside over Watada's second court-martial,
scheduled to begin Tuesday at Fort Lewis. If he continues to deem this key
element of Watada's defense procedurally irrelevant, reducing a
significant political case to one-dimensional issues of discipline and
obeying orders, it begs a responsible nation to face some larger, more
urgent issues:
How, then, can a soldier say no to an illegal war? What would be the
correct and legal procedure for an officer in the Army to say, "Sir, the
tenets of international law say it's my constitutional duty not to fight
in Iraq?" And what does it say about the character of a nation when it
refuses to consider the possibility that its men and women in uniform are
being ordered to fight an illegal war?
These aren't rhetorical questions designed to prompt more
black-and-white argument; they go to the core of our national identity and
our ability to discuss, out loud, complex issues of America's
integrity and our resistance to talking about controversial issues
thoughtfully.
Watada was the first commissioned Army officer to refuse orders for
deployment to Iraq. He is charged with one count of missing movement
(his failure to deploy) and conduct unbecoming an officer, in part for
saying President Bush "deceived" Americans, including Congress, in
order to make war against Iraq. Watada's first court-martial ended in
mistrial. This time around, if convicted on all counts, the
29-year-old could spend six years in military prison and be
dishonorably discharged.
Col. Daniel Baggio, the Army's chief media relations officer, says the
answer is clear: "We can't have people saying, 'Well, I'll fight in
this campaign but not in that campaign.' That is not your call," he
says passionately. "Those are political-type decisions" outside the
military's purview.
For Watada, his answer is just as clear: In Korea, he served under a
commander who told his junior officers that if they did not learn
everything about their mission, they would be mediocre leaders -- and
fail those serving under them. Watada took this to heart.
When he returned to Fort Lewis, he began researching Iraq. The expose at
Abu Ghraib prison fueled his doubts about the war. He read the report
of the Iraq Survey Group, a team formed after the 2003 invasion to see
if weapons of mass destruction existed. It found they didn't. He studied
the United Nations Charter, the Nuremberg Principles, and the Uniform Code
of Military Justice.
After concluding that Saddam Hussein had no ties to al-Qaida, as the
president had claimed, Watada became disillusioned: "And I said, 'Wow --
it's not bad intelligence; it's manipulative intelligence.' When you
put it all together, I became convinced that what we're doing is illegal
and immoral. I went into a short period of deep depression. I was so
shocked. I felt betrayed."
Watada realized that from the moment he swore to "protect and defend the
Constitution of the United States against all enemies, foreign or
domestic," and to "bear true faith and allegiance to the same," his
solemn oath required him to refuse orders to fight an illegal war. For
this former Eagle Scout, spending six years behind bars and sleeping
well at night was preferable to taking actions he believes would make him
a war criminal.
Baggio says Watada is, in effect, thinking too big. This duty of a
soldier to refuse illegal orders --"that refers to the battlefield," he
says. "You know, if soldiers were to say, 'Hey, we're too busy
(fighting). We can't take these prisoners. Let's shoot 'em.' That's
what the law refers to."
In such circumstances, Baggio says, an officer must refuse orders that
violate international law. However, "Once your president has made a
decision to go to war, has committed you to war and the military is in
theater, an officer has no choice but to follow lawful orders." For
this former Airborne Ranger, it is impossible to imagine a situation in
which an officer could refuse to fight because a war itself might be
illegal.
Some would say, of course, that America is a sovereign nation over
which international laws should hold no sway. Yet as Richard Falk,
likely this nation's leading expert on international laws of warfare,
points out, Article 6, Section II of the Constitution says any
international law to which the United States becomes a signatory
immediately becomes U.S. law as well. Because the U.S. signed the
United Nations Charter, which prohibits aggressive war, it is
automatically against the laws of the United States to wage such a
war.
On that point Watada wanted to base his case. Precisely what Head, the
Army judge, refused to let happen.
Falk, now Distinguished Professor of Global Studies at the University of
California at Santa Barbara, was modest enough to point out that at least
four other scholars in the country should be counted among America's
leading thinkers on the international laws of warfare, and he offered
their collective opinion of Watada's central assertion:
"All five of us were in agreement that the war in Iraq is illegal," he
said. "And so if Lt. Watada is upholding the Constitution, and he
reasonably believes that the war is illegal, then it certainly would
seem plausible for him to refuse to participate." (Lest anyone think
this quintet of experts is a squad of knee-jerk, one-note liberals,
Falk said all five also agreed that the war in Afghanistan indeed met the
criteria for a "legal war," even if some isolated actions might have
later violated the laws of peace and warfare.)
So Baggio and the Pentagon insist there is no legal way for an officer to
refuse to fight any war the president declares. Yet when a war is a
non-defensive war of aggression -- as the country's leading legal
experts say the war in Iraq is -- then it creates a 21st century
Catch-22, an infuriating predicament in which thoughtful military
leaders such as Watada will lose, whichever course they choose: If
they fight, they risk becoming war criminals (either in
Nuremberg-style tribunals after hostilities cease, or in their
consciences); and if they refuse to fight, they go to prison and are
disgraced in the eyes of millions.
It is a moral conundrum much too important for a lieutenant colonel at
Fort Lewis to presume authoritative answers. There's no doubt.
Watada's refusal to deploy created problems for his 3rd Stryker
Brigade. As Baggio says, it harmed the "good order and discipline" so
essential to military effectiveness.
Yet when the rest of us let any part of government pretend issues of
legality and morality are not relevant, mere "politics" in the words of
Head, we endorse a head-in-the-mud approach that prevents us,
officially at least, from engaging in healthy debates about our
national character, the purpose of our laws and the integrity of our
leaders. Watada is willing to spend years in jail over these issues.
Once the Army ships him off to prison, will the rest of us take up the
debate he inspired? Or will we think this is out of order as well?
#########
http://seattlepi.nwsource.com/local/334509_watada06.html?source=mypi
P-I (Seattle) October 5, 2007 11:25 p.m. PT
Federal judge delays Watada trial -- Lawyers call a 2nd court-martial
double jeopardy
A federal judge in Tacoma has delayed the court-martial of 1st Lt.
Ehren Watada, a Fort Lewis Army officer who refused to deploy to Iraq.
Related content
In a rare intervention of a civilian court in the military justice
system, U.S. District Court Judge Benjamin Settle granted the
emergency stay to stop the court-martial.
Watada's trial, slated to begin at 9 a.m. Tuesday, is now postponed
until at least Oct. 26, the judge ruled.
In granting the stay at 4:48 p.m. Friday, Settle wrote, "The court
concludes as a preliminary matter, that it has jurisdiction over the
petition and the petitioner's double jeopardy claim is not frivolous."
Watada's first court-martial earlier this year ended in a mistrial, and
his lawyers argue that a second court-martial would amount to trying
him twice for the same charges.
Settle was careful to point out that "the issues raised by the
petition for habeas corpus bear no relation to the charges or defenses in
the petitioner's (Watada's) court-martial proceedings." Settle was a
military lawyer in the Army in the 1970s and was recently appointed to the
federal bench by President Bush.
Quoting case law, Settle wrote, "The irreparable harm suffered by
being put to a trial a second time in violation of the double jeopardy
clause of the Fifth Amendment stems not just from being subjected to
double punishment but also from undergoing a second trial proceeding."
Because the case is being heard in federal court, the U.S. Attorney's
Office now is arguing the government position with a military lawyer's
help.
"Judge Settle has now preserved the status quo, giving us an
opportunity to more fully brief him on the issues. We look forward to
doing that," said Brian Kipnis, chief of the civil division for the
U.S. Attorney's Office in Seattle.
Watada's lawyers, Jim Lobsenz and Ken Kagan of the Seattle firm Carney
Badley Spellman, have argued that the circumstances of a mistrial
declared in Watada's court-martial in February result in double
jeopardy.
The mistrial was declared over Watada's objections and after a panel of
military officers acting as a jury had heard evidence but not begun
deliberations.
Watada's appeals have been dismissed by the military trial judge and the
U.S. Army Court of Appeals. An appeal was made Sept. 18 to the Court
of Appeals for the Armed Forces, the highest court in the military
justice system.
Lobsenz and Kagan said they were compelled to ask the federal court on
Wednesday to stop the court-martial. Watada's trial approached, and
nothing had been heard from the armed forces appeals court. With
Monday a federal holiday to observe Columbus Day, time was even
shorter, they said.
Settle indicated at a hearing on Thursday that he might defer to the
military appeals court if it made a decision by Friday, but at close of
business Friday, it hadn't ruled.
Watada publicly refused to go to Iraq with the 3rd Stryker Brigade in
June 2006, contending that the war there is illegal and has exposed
members of the military to war crimes. He has been charged with
missing movement and conduct unbecoming an officer. He could be
sentenced to up to six years in prison if convicted.
Settle has set up a briefing schedule to examine the merits of the
double jeopardy argument and how long he will continue the stay. The
government has until Friday to file its arguments, and Watada's
lawyers must reply by Oct. 17. Another hearing is planned for Oct. 19.
#############