Nuclear Age Peace Foundation

Author: Marjorie Cohn

  • Watada Beats the Government

    When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada’s court martial, he probably didn’t realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.
    Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.

    The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.
    The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: “A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …”
    Lt. Watada said at a June 6, 2006 press conference in Tacoma, Washington, “The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war.” He stated, “An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.”
    Citing “deception and manipulation … and willful misconduct by the highest levels of my chain of command,” Lt. Watada declared there is “no greater betrayal to the American people” than the Iraq war.
    The “turning point” for Lt. Watada came when he “saw the pain and suffering of so many soldiers and their families, and innocent Iraqis.” He said, “I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable.” Lt. Watada felt he “had the obligation to step up and do whatever it takes,” even if that means facing court martial and imprisonment.
    Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial.
    This is what I would have said had I been allowed to testify at Lt. Watada’s court martial:
    The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
    A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
    Bush’s war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein’s military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the “no-fly-zones.”
    Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
    Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.
    The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.
    Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial – for the commission of war crimes.
    Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
    The dropping of 2,000-pound bombs in residential areas of Baghdad during “Shock and Awe” were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a “weapons-free” zone, with orders to shoot anything that moved, was a crime against humanity.
    Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote: “No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
    Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge’s grant of a mistrial precludes retrial on the same criminal charges.

     

    Marjorie Cohn, MWC News Magazine senior editor, is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published this spring by PoliPointPress.

  • Navy Judge Finds War Protest Reasonable

    “I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal.” — Lt. Cmdr. Robert Klant, presiding at Pablo Paredes’ court-martial

    In a stunning blow to the Bush administration, a Navy judge gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing orders to board the amphibious assault ship Bonhomme Richard before it left San Diego with 3,000 sailors and Marines bound for the Persian Gulf on December 6th. Lt. Cmdr. Robert Klant found Pablo guilty of missing his ship’s movement by design, but dismissed the charge of unauthorized absence. Although Pablo faced one year in the brig, the judge sentenced him to two months’ restriction and three months of hard labor, and reduced his rank to seaman recruit.

    “This is a huge victory,” said Jeremy Warren, Pablo’s lawyer. “A sailor can show up on a Navy base, refuse in good conscience to board a ship bound for Iraq, and receive no time in jail,” Warren added. Although Pablo is delighted he will not to go jail, he still regrets that he was convicted of a crime. He told the judge at sentencing: “I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is illegal.”

    Pablo maintained that transporting Marines to fight in an illegal war, and possibly to commit war crimes, would make him complicit in those crimes. He told the judge, “I believe as a member of the armed forces, beyond having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme law of the land. Both of these higher duties dictate that I must not participate in any way, hands-on or indirect, in the current aggression that has been unleashed on Iraq.”

    Pablo said he formed his views about the illegality of the war by reading truthout.org, listening to Democracy Now!, and reading articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi Annan’s statements that the war is illegal under the UN Charter, and material on the Nuremberg and Tokyo tribunals.

    I testified at Pablo’s court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by US forces. My testimony corroborated the reasonableness of Pablo’s beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the US War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.

    I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, “A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States….” Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that “following superior orders” is not a defense to the commission of war crimes, unless the accused “did not know and could not reasonably have been expected to know that the act ordered was unlawful.”

    I concluded that the Iraq war is illegal. US troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq – to fight in an illegal war, and possibly to commit war crimes – Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.

    On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the US wars in Yugoslavia and Afghanistan also violated the UN Charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, “I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal.”

    The Navy prosecutors asked the judge to sentence Pablo to nine months in the brig, forfeiture of pay and benefits, and a bad conduct discharge. Lt. Brandon Hale argued that Pablo’s conduct was “egregious,” that Pablo could have “slinked away with his privately-held beliefs quietly.” The public nature of Pablo’s protest made it more serious, according to the chief prosecuting officer.

    But Pablo’s lawyer urged the judge not to punish Pablo more harshly for exercising his right of free speech. Pablo refused to board the ship not, as many others, for selfish reasons, but rather as an act of conscience, Warren said.

    “Pablo’s victory is an incredible boon to the anti-war movement,” according to Warren. Since December 6th, Pablo has had a strong support network. Camilo Mejia, a former Army infantryman who spent nine months in the brig at Fort Sill, Oklahoma, for refusing to return to Iraq after a military leave, was present throughout Pablo’s court-martial. Tim Goodrich, co-founder of Iraq Veterans against the War, also attended the court-martial. “We have all been to Iraq, and we support anyone who stands in nonviolent opposition,” he said. Fernando Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq, came to defend Pablo.

    The night before his sentencing, many spoke at a program in support of Pablo. Mejia thanked Pablo for bringing back the humanity and doubts about the war into people’s hearts. Sheehan, whose son, K.C., died two weeks after he arrived in Iraq, said, “I was told my son was killed in the war on terror. He was killed by George Bush’s war of terror on the world.”

    Aidan Delgado, who received conscientious objector status after spending nine months in Iraq, worked in the battalion headquarters at the Abu Ghraib prison. Confirming the Red Cross’s conclusion that 70 to 90 percent of the prisoners were there by mistake, Delgado said that most were suspected only of petty theft, public drunkenness, forging documents and impersonating officials. “At Abu Ghraib, we shot prisoners for protesting their conditions; four were killed,” Delgado maintained. He has photographs of troops “scooping their brains out.”

    Pablo’s application for conscientious objector status is pending. He has one year of Navy service left. If his C.O. application is granted, he could be released. Or he could receive an administrative discharge. Worst case scenario, he could be sent back to Iraq. But it is unlikely the Navy will choose to go through this again.