A Soldier's Right to Disobey Illegal Orders: The Court Martial of Lt. Watada
(By Paul Rockwell, Originally published in Common Dreams. February 1, 2007)
It is a sad day in American jurisprudence when a soldier of conscience is court-martialed not for lying but for telling the truth, not for breaking a covenant with the military but for upholding the rule of law in wartime.
The court-martial of Army 1st Lt. Ehren K. Watada is set for Monday at Fort Lewis near Seattle. The 28-year-old soldier from Hawaii is the first commissioned officer to refuse deployment to Iraq. He is charged with "missing movement" and "conduct unbecoming of an officer," including "use of contemptuous words for the president." He was out of uniform on leave over a year ago when he delivered a moving address to a Veterans for Peace convention. He questioned the legality of the war in Iraq, and he denounced the mendacity of the Bush administration. Although he is not a conscientious objector (he offered to serve in Afghanistan), Lieutenant Watada believes no soldier should give a life, or take a life, for a lie.
For delivering two public speeches on presidential deceptions - saying little more than what the world already knows - Lieutenant Watada could spend two years in prison.
All the major issues of imperial occupation - the fraudulent basis for the war, the absence of a formal declaration from Congress, the systematic nature of war crimes in Iraq, the flagrant violations of international treaties such as the U.N. Charter - are coming to a head in this historic battle between a soldier of conscience and an Army whose Abu Ghraib scandals shocked the world.
Ordinarily, the truth of a claim is a strong defense against any charge of defamation. Not in the Army. Prosecutors told presiding Judge Lt. Col. John Head that the truthfulness of Lieutenant Watada's speeches is irrelevant to the case.
Lieutenant Watada's legal arguments, however, are strong and deserve to be heard in court. The audacious officer is raising matters of principle that concern the right of all soldiers to full protection of the law. Under the enlistment contract, every soldier has a right, even a duty, to disobey illegal orders. The legality of Lieutenant Watada's orders pursuant to a "war of choice" is the central issue of the trial.
No American soldier has any obligation to participate in military aggression, in "crimes against peace," or in any operations that violate the Geneva Conventions. Under constitutional government, the authority of military command derives not from one person alone but from the rule of law itself.
There are only two conditions in which a war is legal under international law: when force is authorized by the U.N. Security Council, or when the use of force is an act of national self-defense and survival. Apart from these conditions, war is an act of aggression. The U.N. Charter, based on the Nuremberg Conventions, prohibits war "as an instrument of policy." And the war in Iraq is just that - a war of choice.
There is a common tendency among lawyers and military commanders to sneer at international law. But the Constitution is unambiguous. Article VI states: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby."
There is no exception for the military, no wall between domestic and international law.
Lieutenant Watada reminds us that the U.S. Army Field Manual states: "Treaties relating to the law of war have a force equal to that of laws enacted by Congress. Their provisions must be observed by both military and civilian personnel with the same strict regard for both the letter and spirit of the law which is required with respect to the Constitution and statutes."
Nevertheless, in a pretrial hearing Jan. 16, Judge Head denied all defense motions to present hard evidence of ongoing war crimes in Iraq. Judge Head also upheld a pivotal government motion "to prevent the defense from presenting any evidence on the illegality of the war." Judge Head ruled that Lieutenant Watada's case is a political issue beyond the jurisdiction of the court.
Judge Head is wrong, and his ruling denies American soldiers protection of the very laws for which they sacrifice their lives. Lieutenant Watada is not taking political positions in his trial. The United States may be overextended; the invasion may create blowback; unilateral actions may alienate allies; war debts may boomerang on the economy; anarchy in Iraq may be hopeless. These are political questions, to be sure. But they are not part of Lieutenant Watada's defense.
Lieutenant Watada is being persecuted because he is challenging the legality, not the political wisdom, of the war. The commander in chief is the final arbiter in foreign policy, but only so long as policies are in accordance with the law. Law trumps politics, not the other way around. The "political question doctrine," as attorneys call it, is nothing more than judicial abdication.
Believing that the outcome of the hearing Monday is all but pre-determined, Lieutenant Watada's attorneys are prepared for appeals. Eventually, the Supreme Court may be called upon to reject the Machiavellian doctrine that "in war, the laws are silent."