1LT Ehren Watada has refused orders to deploy to Iraq, citing his belief that the war is illegal. He contends that the war’s illegality makes his refusal to deploy presumtively legal, based inter alia, on the UN Charter, the Geneva Conventions, and the Nuremberg Principles.
This week, the judge for the pending court-martial ruled that Watada’s defense is not viable. He found that the legality of the war is a political question, not justiciable, and that Lt. Watada may not rely on claims that the war is illegal as a defense to his refusal to deploy.
I contend that this is the correct legal decision.
Tangential to the issue, I note that supporters of Watada plan a to hold a “Citizens’ Hearing on the Legality of U.S. Actions in Iraq” in Tacoma next week. They intend to “put the war on trial,” and will feature testimony by luminaries like Daniel Ellsberg. While they are of course free to do as they wish, I believe that Daniel Ellsberg is not a particularly valid or unbiased authority to consult on this issue.
What rule of evidence requires the exclusion of biased testimony? Were this a factor, a victim, a plaintiff, nor a defendant would ever testify. I guess the better questions are who is representing the defense and do they intend to call Rumsfeld, Pearle, Wolfowitz, Cheney, et al. to the stand? I am pretty sure I know the answer, and I am well aware that even if they did, there’s not much of a likelihood of an appearance by any of these figures.
The underlying question is an interesting one though. Say that bottom falls (further) out of this war , and new information surfaces that supports a contention that the US Coalition action was illegal under international law, could the soldier be tried for his participation in the war?
Well, he’s obviously biased, since he’s a vocal critic of the Iraq War. Don’t know why you’d think he’s not a valid authority though, as he spent several decades as an analyst of US foreign policy (and was also apparently a U.S. Marine Officer way back when, and so presumably has some knowledge of military regulations/affairs).
Agree with the rest of your post though. As far as I know, there’s no such beast as “an illegal war” in US law, so you can’t really use it as a defense.
We hear a lot about this story in Hawaii. I find myself a little torn:
One one hand, we did go to war under false pretenses (WMD, Iraq=Al Qaeda=9/11, etc). Would this make fighting Iraqis an immoral order?
On the other hand, it is not up to the military to make the government’s decisions. As a soldier, you’re in the business of fighting wars, not declaring them. “Not to question why” and all that.
I lean more toward option 2. Perhaps more military dopers can weigh in.
A question, Bricker. Is the judge stating that there is no such defense as a stated belief that a war is illegal or is he stating that, in this particular case, this war is legal so that defense is invalid? I would concur with the latter decision but I would question the former. That would apparently be saying that in some cases a soldier is obligated to follow an order he knows is illegal.
I think there’s a much stronger case for the war’s immorality than its illegality. In fact I don’t know why the legality of this war is supposed to be important. The law will always be biased in favor of the government’s interests, and no government would want the law to let soldiers refuse deployment because of their objections to a war.
In my opinion, we’ll get closer to a solution in Iraq (and not just us, or in Iraq) when soldiers start questioning why and don’t follow orders that are either immoral or stupid.
Of course every soldier has the duty to disobey illegal orders. “Torture Iraqi prisoners” would be an illegal order. But “deploy to Iraq” is clearly not an illegal order. And it doesn’t matter how many laws (if any) Bush broke getting congress to approve the AUMF, the AUMF is still legally valid.
Watanda’s case has always been hopeless, although I suppose he never expected to win. If he’d rather go to jail than deploy to Iraq I suppose we can accomodate him.
First, Lt. Watada is not a conscientious objector. He has explicitly said he does not object to all war.
Second, he received his commission in the spring of 2003, just as the Iraq war was beginning, after an agonizingly long buildup. He knew this was coming, and that he’d likely fight in it.
These facts diminish considerably my respect or sympathy for him. He knows the rules, and as an officer especially ought to follow them.
He had soldiers to lead, and he let them down. He’s earned a court martial big time.
There’s a difference, however, between claiming that a specific order is illegal, and claiming that a WAR is illegal. The former refers specifically to a task assigned to an individual, which may be a speciically illegal act. The latter is highly nebulous and doesn’t have any individual application; an “illegal war” is the act of a state.
Individuals in charge of the state might be charged with war crimes, but the soldiers, individually, never are. The Nuremberg trials didn’t put all German soldiers on trial for the illegality of Germany’s invasions; individual soldiers could be put on trial for individually criminal acts, but a soldier who behaves in accordance with the laws of war is not committing a crime even if the war is, at the level of international law, illegal. Jus ad bellum and jus ad bello are separate issues.
To my mind, it clearly HAS to be this way if for no other reason than to ensure civilian control of the military.
With all due respect, Lieutenant Wahada does not, to my view, have a legal leg to stand on. He joined the armed services of his own accord. If he doesn’t like this war he should either serve and then speak out, or conscientiously object and take his lumps. An educated person should know that a military power like the USA gets involved in morally questionable trouble all the time.
Since the event at which Ellsburg is testifying is a “Citizens’ Hearing on the Legality of U.S. Actions in Iraq,” I have no idea what, if any, rules of evidence they might be using.
Victims, defendants, and plaintiffs testify to events of which they have personal knowledge; they do not offer conclusions.
Expert witnesses do indeed draw conclusions, although they are generally not supposed to invade the province of the jury by testifying to facts that are at issue.
an ignorant’s question: if a grunt refuses to obey an order, then the usual court martial, jail thing follows. So far so good. What about someone in a higher position? His disobedience must also have repercussions on the morale of the men under his command. Is this treason?
That’s not true. There were, for example, numerous Germans who were convicted of war crimes for acts that were both the orders of their superiors and legal under German law. “I was just following orders” is not a legal defense. And I have little respect for the argument that it’s okay for a soldier to break the law because it’s virtually certain that he won’t be prosecuted for it.
On the other hand, I disagree with Marley’s contention that immorality and/or stupidity can raise a legal defense - members of the armed forces are obligated to follow orders, even if they appear (or actually are) immoral or stupid.
And as I said before, I do not see legality being a defense for Lt Watada. I don’t think there’s any reasonable case that can be made in arguing that the presense of American troops in Iraq is illegal under American law.
But suppose (and I’m using this as a hypothetical so please avoid any political arguments) that six months from now, with no new Congressional action, an officer is ordered to take his unit across a remote area of the Iraqi-Iranian border in hot pursuit of a group of insurgents. Would the officer be legally correct in refusing to follow that order as there is no legal authority to perform acts of war in Iran?
You’ll have trouble showing us an example of such a case where the action in question wasn’t, in fact, illegal in any other circumstance, including in Germany before 1939 or, indeed, in Germany at the time. “It’s legal to murder people now” was rightly dismissed as a legal justification because it was transperently nonsensical. The Nuremberg trials rightly assumed that murdering children is always illegal - as indeed it was illegal in Nazi Germany; it’s not like murder was legal under the Nazis - and citing a lame and transient legal exception doesn’t change that.
Were the U.S. Army to order Lt. Watada to murder someone, obviously that would be an illegal order. If the U.S. government were to pass a law stating “For this year only, you get to shoot Iraqi children” it would still be an illegal order in the eyes of a war crimes tribunal because a reasonable man should be able to remember that murder is supposed to be illegal. It still comes down to individual culpability for an act that is specifically illegal. You can argue over who gets to determine WHAT is illegal, but we seem to agree that Lt. Watada is screwed either way.
I don’t believe so, because I don’t believe an officer in that position is in a position to competently judge the legality of the situation. At least, not THAT situation; in fact, it doesn’t even sound illegal to me. U.S. forces can use force without Congressional authorization in any number of situations.
Either that, or Bush should be seriously investigated, tried and punished if he did break any laws. It was the statement that it doesn’t matter how many laws Bush broke that offended me. Either the laws apply to everyone, or they are just the whims of the powerful, and have no moral force.
Watanda signed up to be an officer of the United States Army. He is obligated to obey legal orders and disobey illegal orders. Even if tomorrow George Bush is hauled off to the Hague for starting the Iraq war, it still wouldn’t make the order “Deploy to Iraq” an illegal order.
Watanda is certainly free to obey his conscience and refuse to deploy to Iraq but that doesn’t make “I don’t want to go to Iraq” a legal defense in his court martial.
It can be a legal defence. Just not when the crimes you commit under authority are “crimes against humanity”. That’s why only the most heinous violations were prosecuted at Nuremburg.
Bricker is correct here. The war has been found to be legal under US Law. And although I see ways it’s legality could be questioned under International Law,so far it hasn’t been found to be illegal in an valid International Court. The primary “court” would be the UN Security Council where the USA and Britain would veto any such action. Thus the War isn’t (yet) illegal under International law, and it’s unlikely it will be ruled as such.
Of course the laws apply to Bush just as much as they do to Watanda. I don’t see how you could reasonably construe my statement to mean that I thought Bush was above the law.
But whether or not Bush is a lawbreaker is irrelevant in Mr. Watanda’s case.
But no German or Japanese soldier was ever prosecuted for war crimes merely because they took part in the invasion of Poland, France, or the Soviet Union. No soldier was prosecuted for war crimes for bombing the United Kingdom, or sinking American ships. German soldiers weren’t war criminals merely for being part of the German military or shooting at Allied soldiers or even bombing Allied civilians.