The war’s legality as a defense
From the Seattle Post-Intelligencer:
Fort Lewis this week will become ground zero for the peace movement. Activists have called for a national day of action today, when the court-martial of 28-year-old 1st Lt. Ehren Watada begins.
In the past year, Watada has become a lightning rod for the anti-war movement as the only known U.S. military officer to publicly refuse to be sent to Iraq. Peace groups and such celebrity activists as Susan Sarandon and Martin Sheen have taken up the lieutenant’s cause.
Watada has stated that the war in Iraq is illegal and that he is duty-bound as an officer under international and military conventions to refuse unlawful orders. But his views against the war will mean little at his court-martial. A judge already has ruled that Watada cannot question the war’s legality as a defense.
When I joined the Army in the 1980s, the hardest question with which I grappled was a variation on this theme: What would I do if sent to support a military action I did not support. It never came up, but it was important to understand before signing on the proverbial dotted line.
Military service isn’t some trivial pursuit or an easy way to pick up some college funding.
I have to assume Lt. Watada asked himself the same questions, so I’m having trouble seeing how, in an all-volunteer military, this lieutenant can object to deployment on the grounds of the war’s legality.
Furthermore, if a judge has already ruled that he cannot, in fact, use that as his defense, this looks to be a foregone conclusion.
For all the similarities, both real and imagined, this is one of the ways Iraq is not Vietnam.
24 Responses to “The war’s legality as a defense”
[...] (Cross-posted at The Moderate Voice) [...]
Sometimes doing the right thing for ourself or others is not rewarded or appreciated. Someone who enlists in the military but then choses to not follow the rules needs to be accountable for their actions.
As you point out, the situation would be a little different if someone were drafted. But even then we all make a choice to live in this country and obey the laws.
Perhaps a future President would pardon the conscientious objectors.
“What would I do if sent to support a military action I did not support.”
What he is claiming and what you thought about are two different things. He is claiming that the Iraq invasion was illegal and military code specifically prohibits soldiers from taking part in illegal actions. What your question is more akin to would be whether you would fight in a war that you thought was a bad idea politically or strategically.
While I fully agree that someone who volunteers shouldn’t be able to back out because they disagree with how the war is being fought, I don’t think people are under obligation to fight for wars that are illegal. After reading wikipedia, it seems the fact that the judge said he couldn’t use the war’s legality in his defense was a judgement neither on the legality of the war nor the concept that one can refuse to fight in a war they believe is illegal; the latter probably has to be a Supreme Court decision. At this level it was just ignored because it’s not very settled, which I think is appropriate as well.
It is irrelevant and, actually, the immediate precedent is not Vietnam, but rather the case of Sgt. Michael New, who resisted being sent to Bosnia under President Clinton.
Soldiers were not allowed to disobey Clinton’s order because of their belief in the illegality of the Bosnia operation. By the same precedent, their belief about the illegality of the Iraq war is also irrelevant, no matter how sincere or popular that belief is or isn’t.
Jason what court decided the Michael New case? Googling is failing me
He was prosecuted by court-martial under the UCMJ.
Here is a site that is in favor of New’s appeal: http://www.mikenew.com/
Here is a summary of how he believes his disobedience was justified by alleged illegality of the order (it is a different type of illegality that he is claiming, but relevant in that it shares the underlying justification):
http://www.mikenew.com/pr121305.html
Overall, the legal principle is well-established that says soldiers cannot refuse to deploy simply because they disagree with a particular operation. Think about how impossible it would be to have a military under such a system.
seems to me that it makes a lot of sense to give him a dishonorable discharge but no jail time. Hopefully that’s what the result will be
Kevin — why should he not receive jail time?
So he never got out of the military justice system. The way you put it “simply because they disagree” again implies that he is refusing to go because he doesn’t like how the war is being run and/or why it was started. Again, that’s not his reasoning…his reasoning is that it’s illegal.
A perfectly good analogy is if he was in combat and his superior gave an order he believed to be illegal. Under military code it’s his duty to refuse the order and even forcibly relieve the superior of command if he has to. Of course by definition this is mutiny up until a later date when he has to explain his actions. If the appeals court finds that the superior issued an illegal order then the soldier is off the hook, but otherwise he could be under severe repercussions.
Since even the prosecuting attorney seemed to accept that he was sincere about his reasons, then the question is whether one can refuse to serve if the war is illegal as opposed to a particular command. I can very well see why both the military justice system and (seemingly) the civilian courts have sidestepped the issue and that’s because there is no clear way of labeling a whole war illegal but there are very clear ways of labeling specific actions illegal.
It makes no sense to tell a soldier “don’t obey specific commands if they are illegal” but “you must obey commands even if the entire war is illegal” other than the fact that the latter is inherently politicized and/or there are constitutional issues that would prevent the determination. From a moral standpoint however, I don’t see how someone could applaud the first but dislike his rationale.
Actually, if there was true justice Michael New’s father would be forced to serve the jail time for him since the entire affair was instigated and promoted by him.
And having met Mr. New, I’d not shed a tear over his incarceration. It’s one thing to live vicariously through your kid, it’s another to puch him into legal liability.
Actually, I don’t dislike his rationale nor do I condemn him morally (assuming his beliefs are sincere). I simply cite the functionalist principle that it is not possible for a military to function if individual soldiers can refuse to participate in a war that they believe to be “illegal”, especially when that determination comes from a non-expert position and is, as you say, rife with murky politicized overtones in a way that refusing a specific order to, say, massacre a village, is not.
The “illegal war” claim as a defense falls down on more than one basis, but it’s the specific one of specific legal orders being disobeyed that counts. LT Watada disobeyed legal orders given to him by superior officers under the UCMJ, and the framework in which the orders were given is completely irrelevant past that, as far as both US law and the UCMJ go.
I agree with mikkel. I spent 21 years in the Air Force and retired as a
captain. As an officer, I swore an oath to uphold the constitution and obey the LAWFUL orders of my superiors. If Lt Watada truly believes that the Iraq war is illegal then he is duty bound to oppose the orders to participate in that war. Of course, he is going to have a long, hard row to prove it is illegal and no help from the power that be even if they oppose the war. I’m sure he will be found guilty and drummed out of the military. I’m not at all sure, however, that he deserves or should receive jail time.
One point: All to often we seem to forget that those who have been found guilty of some political crime have been vindicated by the course of history. Please remember the trials and tribulations of those who fought for civil rights, women’s right to vote, etc., and were finally justified by history. Whether this is one of these times, I don’t know.
[...] UPDATE: Others: Gateway Pundit, The Moderate Voice (Polimom writing, cross post at her blog). [...]
He signed up as an officer, not as a NCO or enlisted man. Be like HD Thoruaue(sp) and do the civil disobidiance in jail.
I seriously doubt he will be able to use that defense. Once you sign on the dotted line your destiny is no longer your own.
He should hang.
There is no way in the world that military personnel should be able to Determine which war they WILL fight in. Which deployment they will choose to partake in.
The antiwar is attempting to take on his case because they are against this war while truly failing to understand the repercussions of such action if this man were to be Exonerated.
His exoneration would quite simply mean that in the future Military personnel would be able to pick and choose their wars……..and this is flat out absurd. It was so dilute the military that they would be afraid to deploy for fear no one would show up.
Its laughable. The man should hang.
Shorter Upin…:
I never served in the military, but I am vehemently defending the position that folks who signed the doted line are essentially slaves who lost all rights, including, but not limited to, the right to live. I’m happy there are still crazy folks who do this so that I don’t have to face the consequences and sacrifice for the policies I support.
As an officer, I swore an oath to uphold the constitution and obey the LAWFUL orders of my superiors.
You did? But that’s (kinda) the enlisted oath, not the officer’s oath of appointment. Officers swear to “well and faithfully discharge” their appointed duties and take their oath of appointment “freely, without any mental reservation or purpose of evasion.”
Neither enlisted nor officers swear to “uphold” the Constitution–it’s “support and defend, and bear true faith and allegiance to same.”
Enlisted personnel swear to “obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.”
Note: NOT their personal interpretation of domestic or international law, but the regulations of the service and the UCMJ.
Exactly true. No matter which way you slice it by allowing someone like this to skate because he has popular antiwar support would be a disasterous precedent whose repercussions could reverberate for years to come.
He should hang. He volunteered. He was not forced. He choose this course of action. He failed in his duties and he may not like it but he is the focus of a much larger battle then his own personal dislike for this war.
They shot people in WW2 for this offense. I would not be opposed to him being shot for this offense. I’m not much of a capital punishment advocate but that is how strongly I believe that this case is crucial and critical to the nations military psyche and welfare for years to come.
The anti war by taking up his cause goes beyond being antiwar and reinforces in the minds of many of us the accusation that has been leveled at them for 2 or more years……..Not only are they antiwar but they are Anti American as well.
True or not? I don’t know but this is just another example of why many of us believe it is true.
They shot people for desertion in combat during WW2. Watada did not desert, and his refusal to comply with lawful orders did not occur in combat. And yes, a competent judge has ruled that it was a lawful order.
He received lawful deployment orders and intentionally refused to follow them, announcing his non-compliance with said orders in advance. He otherwise committed “conduct unbecoming an officer” by, as an officer, urging other soldiers to disobey their orders.
He seems sincere enough about his beliefs, but sincerity isn’t a defense.
If being American means unwavering support of all military action chosen by our leaders, then who really wants to be American?
In the military you are expected to give unwavering support for your leaders and chain of command and buddies. Its how the military functions. You LET THE POLITICIANS sort the rest out. You are not a politician you are a soldier and the man next to you depends on you, trusts in you and expects a certain action from you. Its how the military functions. YOU LET THE POLITICIANS tell you where to go.
IF you do not like that Scenario…….then DONT VOLUNTEER TO BE A PART OF IT!!!
Trully At 10.05am on January 31, 1945, Private Eddie D.Slovik, 36896415, of Company G, 109th.Infantry Regiment, US 28th.Infantry Division, was executed by a twelve man firing squad from his own regiment. The execution took place in the garden of a villa at No.86, Rue de General Dourgeois, in the town of St.Marie-Aux-Mines, near Colmar in eastern France. Slovik, the son of poor Polish immigrants, was the only American since the Civil War to be shot for desertion.
What I was referring to was not official actions. In Vietnam officers and NCO’s were fragged or murdered by their own men for various reasons. Many of which could be described along the lines we are discussing with this man. During WW2 their were no doubt many men who were shot for pulling the kind of stunt this man pulled on his buddies. This is what I was referring to…..not an actual court martial and sentence carried out.
Now obviously I dont advocate any of this. I was being philosophical when I suggested he be shot for this offense. However the seriousness of his offense would/could have gotten him fragged in Vietnam and no doubt the same thing in WW2.
The brotherhood in the military is a strong code. Especially in times of war.
The brotherhood in the military is a strong code.
That is absolutely true — far more so, I think, than people who aren’t very familiar with the institution realize. It is, in fact, a subculture.