February 7, 2007

If Not Now, When?

Lieutenant Ehren Watada joined the Army after the U.S. invasion of Iraq in 2003 because of what he termed "a desire to protect our country." Commissioned out of the Army's Officer Candidate School at Fort Benning, GA, his first tour of duty was in Korea, where his superiors rated him "exemplary" and "among the best," and recommended him for early promotion. Watada returned to the United States in 2005 and reported to Fort Lewis to prepare for deployment to Iraq.

As part of that preparation, Watada - nearly a straight-A student in college - began researching the country in which he would soon be stationed. After reading books and articles about international law by scholars, governmental and non-governmental agencies; studying the history of Iraq; pouring over the evidence used to justify the U.S. invasion; and talking to returning veterans, he came to believe that the war was neither legal nor moral.

Based on his research, Watada arrived at the determination that the war in Iraq violates both the Constitution and the War Powers Act which limits the president's use of the armed forces in his role as Commander in Chief. He believes that the Iraq War is illegal under the United Nations Charter, the Geneva Conventions, and the Nuremberg Principles, all of which "bar wars of aggression," and to each of which the United States is a signatory. Watada asserts that the war is based on misleading information and false premises (such as the existence of Weapons of Mass Destruction in Iraq, and links between Saddam Hussein and al-Qaeda) and contends that the occupation itself does not conform to the Army's own rules of conduct.

For all of these reasons, Lieutenant Watada concluded that assuming command responsibility in Iraq would make him personally liable for violations of international law, and that he could not legally or morally serve in that country. In early 2006, he submitted a request to resign his commission, noting that he was willing to deploy to Afghanistan - which he regarded as "an unambiguous war linked to the September 11th attacks" - but the Army would accept neither his resignation nor his reassignment request, and Watada in turn refused to accede to non-combat, desk duty in Iraq.

As a result, he has been charged with conduct unbecoming an officer for statements made in speeches and interviews; missing movement for refusing to deploy to Iraq with his unit on June 22nd; and contempt toward the commander in chief, President Bush. On Monday, the court martial of Ehren K. Watada began.

Unfortunately, for both Lieutenant Watada and the American citizenry, there is clearly no facility whatsoever in this country - or at least no willingness - to examine the merits of the position he has taken. As the Nuremberg Trials demonstrated, we place a significant burden on members of the armed services of all countries to obey international rules of war; "I was only following orders" is no excuse for the commission of atrocities or illegal acts, and the term "good German" has, in the wake of the second world war, become a derisive one. With that in mind, it is high time to recognize that, apart from our closest allies and a number of smaller nations seeking to curry favor, just about every other country in the world regards the United States' invasion of Iraq as a war of aggression, and as such, a violation of international law. Since there are no circumstances under which "preemptive war" - as the Bush Administration has termed our invasion - is anything but illicit, an examination of the war's legality seems more than merely appropriate, however faint such a hope may be.

While there has been an outpouring of support for Watada, as well as backlash both from supporters of the war and those under the misapprehension that he is dodging a combat assignment, it is almost certain that he will eventually be convicted in the court martial and serve as much as 4 years in a military prison. The judge has ruled that Watada's attorney, Eric Seitz, cannot debate the legality of the war to defend his client, and the scope of the proceedings will be limited to examining only whether Watada has violated the Uniform Code of Military Justice (UCMJ). Although it is practically undeniable that Watada is, in fact, in breach of the UCMJ, it must be stated in the clearest possible terms that, although the court's avoidance of the issue is understandable, unless the legality of the war can be challenged, his court martial is no more than a show trial.

Further, arguments that Lieutenant Watada violated American law by refusing to obey orders misunderstands the effect of international commitments on domestic jurisprudence. During the run-up to the invasion, the United Nations passed Resolution 1441 declaring that force could be used if Saddam refused re-admittance to weapons inspectors. Iraq's former leader, sensing he was cornered - and in direct contradiction to repeated statements made by President Bush - responded by letting the inspectors back across Iraq's border. Rather than accept Saddam's last-minute acquiescence however, the United States effectively circumvented the spirit of the U.N. resolution and invaded anyway, without support from that body, and with only the backing of what has been termed the "coalition of the willing," which, except for Great Britain, committed token allocations of personnel.

This is crucial, because Article VI of the United States Constitution states that "all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land." The United Nations Charter, which specifically prohibits wars of aggression - and to which the United States is a signatory - is a treaty. As such, it is the "supreme law of the land" and even if one asserts that the Authorization for the Use of Military Force passed by Congress in the wake of 9/11 is both legal and covers the invasion of Iraq, it is difficult to make the case that the U.N. Charter wouldn't therefore supersede it.

Finally, while it can easily be argued that Watada has not been directly ordered to carry out crimes against humanity or even illegal acts, such a contention misses the point entirely. The issue is not that Lieutenant Watada's orders to deploy to Iraq are, in and of themselves, legal, any more than an embezzler's guilt or innocence should be determined by whether he pays taxes on money he has stolen. Simply expressed, even if the orders are legal, they are in service to something that is not. As such, they should rightly be regarded as aiding and abetting an illegal act.

At this point it is no longer surprising - although no less sad - that, despite conservative American claims to moral leadership, our rhetoric does not match our actions. What is to be commended, is that Ehren Watada - despite pronouncements that he is "betraying his unit" - is following not only the moral code he has been taught and which we preach to the world, but demonstrating how good men are placed in untenable positions by the neoconservative drive to transform the United States from a nation of laws into one of men.

In the end, it appears that Ehren Watada is doing the only thing he can do. As a serviceman, his avenues of redress are restricted to the system of military justice, and that system makes no allowance for examining the legality of wars in which we are engaged. If soldiers are responsible for acting justly, however, there must be a mechanism by which they can plead the full breadth of their cases, whether it be by petition to Congress, bringing suit in the courts, or some other method. Under our present system, members of the armed services are told to set aside their beliefs - no matter how well-founded in morality and law - until some yet-to-be-determined point in the future. That's simply not good enough, and it is imperative that we ask the question, "If not now, when?"


Brian said...

This is a tough one, and I find myself vacillating from one side to the other.

I certainly admire Watada’s determination and willingness to stand up for his beliefs in the face of daunting circumstances and life changing repercussions.

I believe your main point is that he should be able to bring any argument to the table necessary in order for it to be taken into account to justify or excuse his actions and that his specific argument is the legality of the Iraq invasion?

I just let my mind wander down the road a bit as to what the implications of that particular argument would mean. If he was able to introduce that argument, and it was accepted, then all serviceman that HAD gone to Iraq would be guilty of crimes, and as you pointed out, “I was merely following orders” is not an acceptable ‘out’.

The main point of law is that making a determination, one way or the other, as to the legality of the Iraq war is simply far out of the jurisdiction, and scope, of a courts-martial, which you pointed out, so arguing the legality of the war in that particular venue would be, by every measure, a waste of time, as no ruling of legality could be made, and it would amount to nothing more than a red herring measure by the defense(in that arena). I say that without disqualifying his reasons for not going.

I think his reasons are very valid, but they may be more personal than legal, I will have to look further into it when I am not sitting at work trading bonds.

By analogy, it seems to me to have some similarities to other civil disobedience i.e. the fact that you are protesting one law/government action as being wrong does not overwrite the laws you break to protest that fact. I know that it is a bit of a square peg/round hole.

Another sticking point for me, and don’t think of this as merely a slippery slope proposal, is that he decided what was legal, or not, based on his opinion of the law, and it seems he did so without any outside advice, and would it not then be up to each person in the armed forces to make that determination as to the legality of ANY conflict they were put into?

PBI said...

Hey Brian,

Thanks for your thoughts!

I don’t believe that Watada should necessarily be allowed to bring ANY argument, but the underlying legality of something he has been ordered to do seems relevant. The court martial – at which there has now been a mistrial declared, by the way – consciously prohibited discussion of the foundational issue: Watada is not dodging combat, but appears to sincerely believe he would be personally liable for war crimes if he did as he was told.

The issue of potentially making all servicemen guilty of war crimes is, without question, a huge consequence, but one that I don’t think is in any way insurmountable. The vast majority of German soldiers in World War II were never prosecuted for invading Poland, France, etc., and only those who were proven to have committed war crimes were punished. I think international law could be satisfied with withdrawal and reparations of some kind. (Preferably NOT administered by Paul Bremer, Halliburton or the men in charge of the U.N. oil for food program!) Further, the alternative – if the war truly is illegal – is to make other servicemen guilty as they are rotated in, and to allow those already serving, to, in essence, dig themselves a deeper hole.

I agree that the main point of law is that there simply isn’t any avenue for arguing the legality of the war, and as noted, Watada is probably guilty of what the court martial has been convened to try him. That said, I have to come back to the embezzler analogy I used in the post: The issue is not that Lieutenant Watada's orders to deploy to Iraq are, in and of themselves, legal, any more than an embezzler's guilt or innocence should be determined by whether he pays taxes on money he has stolen. While the point of law may be clear, to me, this is an issue of justice and fairness, which are obviously not synonymous.

Finally, I’m not sure whether or not Watada consulted with legal experts to reach his expressed viewpoint, and while noting that – if it’s the case – might make his argument stronger, I’m not sure it should be a requirement. If one applied that to a battlefield situation in which a soldier is ordered to do something illegal, clearly the advice of counsel would be a highly uncommon luxury. In many ways, the framework which we espouse – and to which we as a nation are a signatory many times over – says that everyone needs to make some level of determination about the orders they follow in military action, although admittedly, it is rare that it reaches such a degree of significance as this one.

Take care,

LOVE the new avatar!