Case Crumbles Against Officer Who Refused Iraq
US District Court Judge Benjamin Settle has said that the army cannot put Ehren Watada, the first commissioned officer to refuse deployment to Iraq, on trial for a second time unless it can prove such a trial would not violate the US Constitution's prohibition against "double jeopardy."
The first trial ended when the judge declared a mistrial just before Watada was due to take the stand in his own defence.
Interestingly, Judge Settle found the Army judge "likely abused his discretion" in the first court-martial.Many observers believe the judge, Lt. Col. John Head, ordered a mistrial in that case because he was worried that Lt. Watada's testimony would lead to him being found not guilty of "missing [troops] movement" and "conduct unbecoming of an officer and a gentleman."
Immediately before a mistrial was declared, Watada had said: "Your Honor, I have always believed that I have a legal and moral defense. I realize that the government can make arguments and you can make rulings contrary to that, but that does not negate my belief that I have a defense."
"To me," Watada told the court, leading soldiers into battle in Iraq "means to participate in a war that I believe to be illegal."
Watada had hoped to make that argument under the so-called Nuremberg Principals which arose from trials of Nazi war criminals after World War II.
The fourth of the Nuremberg Principles says that superior orders are not a defense to the commission of an illegal act, meaning soldiers who commit a war crime because they were "just following orders" are just as culpable as their superiors.
"The same Fifth Amendment protections are in place for military service members as are afforded to civilians," he wrote. "To hold otherwise would ignore the many sacrifices that American soldiers have made throughout history to protect those sacred rights."The Army has said that it intends to continue it's case against Watada and said the military plans to file additional briefs on the double jeopardy issues.
The Army seem determined to have their day in court with Watada, although it will be interesting to see if this day in court actually brings them victory. I well understand their argument that individual soldiers cannot choose which conflicts they wish to participate in, but the lack of a second UN resolution before the invasion of Iraq meant that the invasion was not carried out under the UN charter and was therefore illegal.Watada's supporters expressed surprise that the military continues its legal crusade. David Mitchell, a lawyer who served time in prison for refusing to fight in the Vietnam War, noted that Lt. Watada has already completed his term of service in the military and could now simply be discharged.
"The longer the military continues this trial, the more publicity Lt. Watada gets," Mitchell told IPS, "[and] the more information is out there for the public that there are people in the military who challenge the legality and morality of the war."
Now, the fact that this is a court martial rather than a proper trial might lean things in the army's direction, but I still think they are taking a risk by forcing this to a head rather than simply discharging Watada.
Watada's argument is, to many people - even if not to army chiefs - a sound one. He raises the valid point of what one does, relevant to the fourth of the Nuremberg principles, if one believes one is being asked to take part in an illegal campaign.
I think the army would be best advised to simply let this one slide, but there is no indication that they are willing to do so.
They are pushing this case forward at a time when anti-war sentiment in the ranks is making an impact:
More than 10,000 soldiers have deserted since the Iraq war began four years ago. According to the Army, the number of deserters has increased every year of the war; 3,196 active-duty soldiers deserted the Army last year, compared to 2,543 the year before.Is this why they are so determined to push on and make an example out of Watada? And what happens if they lose?
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4 comments:
Here's a happy possibility: maybe the Army continues to push for court-martial because of pressure from the Bush Cabal, and because they recognize the merit of Watada's case (and so hope for the very outcome you predict), thus serving both their commander-in-chief as ordered and serving their consciences also.
Or not.
Dave, That would be a pleasant thing were it to be true.
After all, many US Generals speak out against the Bush cabal the minute they take off their uniforms.
It's unlikely but, as you say, a pleasant possiblity.
carried out under the UN charter and was therefore illegal.
It was not illegal under US law, which as is glaringly obvious, is what counts here. As you may not be aware, US military personnel do not swear an oath to uphold the UN charter. Secondly, although it is of no significance to this case, UNSCR 1483 pretty much ends any whining about the supposed legal status of the war. But as I said, that is irrelevant because the US military personnel are required to follow US law, not the UN charter, the EU Constitution, the laws of Zimbabwe, or any other body that is not relevant here.
The funniest thing about your kind, who love the practice of "Lawfare", is that you see international bodies as a means of controlling the US, and when it doesn't work out you all get in a frantic tizzy, to the amusement of many.
Personally, unless there are some aspects of the case that I'm not aware of (the Nuremberg bit was a real laugher, where do they come up with this stuff?), I hope they get their act together and get this guy court martialed.
It was not illegal under US law, which as is glaringly obvious, is what counts here.
You appear to believe that US law trumps international law. The US helped to form United Nations and agreed to be bound by it's Charter no matter what Bush stated to the contrary. When the US signs an international treaty it becomes US law.
"The United Nations Charter is a treaty of the United States, and as such forms part of the "supreme law of the land" under the Constitution, Article VI, Clause 2. The UN Charter is the highest treaty in the world, superseding states’ conflicting obligations under any other international agreement. (Art. 103, UN Charter)"
(the Nuremberg bit was a real laugher, where do they come up with this stuff?)
I'm amazed that you find this funny. Nuremberg established that the Nazis could not hide behind the excuse that they were "just following orders". Since then, no soldier can use that excuse.
One of the reasons the British Attorney General came under such pressure to declare the Iraq war legal prior to the invasion was because the British Army were refusing to participate until he did so, because they were so worried about the Nuremberg principle, which you appear to find so amusing.
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