http://www.thenation.com/doc/20091109/brecher_smith
By Jeremy Brecher & Brendan Smith
October 26, 2009
On June 7, 2006, a 28-year-old Army lieutenant named Ehren Watada
released a video press statement announcing that he was refusing to
deploy to Iraq because the Iraq War was illegal and his
"participation would make me party to war crimes." After three years
of trying to convict him by court martial, the Army has finally given
up and allowed Lt. Watada to resign. Despite his direct refusal of an
order to deploy, Watada did not spend a single day in jail.
Watada's Story
A former Eagle Scout with a degree in finance, Watada volunteered for
military service after 9/11. His motives could hardly have been more
patriotic. For himself and his fellow soldiers, he said, "the reason
why we all joined the military" and "the commitment we made to this
country" is "to sacrifice everything--sacrifice our lives, our
freedom--to ensure that all Americans live in a country where we have
true democracy."
When he learned that he would be shipped to Iraq, Lt. Watada began to
read everything he could find about the war, on all sides, so that he
could better motivate the troops under his command. One of the books
he read was James Bamford's A Pretext for War. In a film made about
his story, In the Name of Democracy, Watada described shock at what
he learned: "Our country, and we as a military, had been deceived.
There's no other way of putting it. Whether they misrepresented the
truth, or they told half-truths or misled--it's a lie." The Iraq War
was "a war not out of self-defense but by choice."
Watada is not a pacifist, and he based his stand not just on the
falsehood of the justifications for the war but on the usurpation of
legitimate constitutional authority by the officials in the George W.
Bush administration.
"There came a time when I saw people with power, and they held that
power absolute and they did not listen to the will of the people," he
says in In the Name of Democracy. "That was the leadership of our
country. Those were the people who were in charge of our lives, and
yet they did what they wanted to do with impunity, and nobody was
willing to stand up and challenge them."
Watada offered to resign or to be deployed to Afghanistan; the Army
refused. He felt bound by his military oath to do what his conscience
abhorred. Then he had an epiphany: his military oath actually
required him to refuse orders he believed were illegal, and his
loyalty was owed to the Constitution, not to the officials who were
perverting it.
"I believe the only real God-given right we have is the freedom to
choose," Watada says. "And when we take that away from ourselves,
then we put ourselves in an invisible prison that nobody else imposes
on us except for ourselves. When you tell yourself again that you do
have a choice--I could go to prison for it, I could be tortured, I
could die for it, but I have that choice and I can make it--then that
invisible prison kind of lifts off, and you feel free. I felt so free
when I told myself that I have a choice."
On June 7, 2006, Watada issued a statement announcing his refusal to
deploy: "It is my conclusion as an officer of the armed forces that
the war in Iraq is not only morally wrong but a horrible breach of
American law. Although I have tried to resign out of protest, I am
forced to participate in a war that is manifestly illegal. As the
order to take part in an illegal act is ultimately unlawful as well,
I must as an officer of honor and integrity refuse that order."
Crucial to his argument was the unconstitutionality of the decision
to go to war. "We had people within our country with tremendous
amounts of power who were doing whatever they felt they wanted to,"
Watada explained. "There were no checks and balances like our
Constitution espouses."
His disobedience was also his duty under international law: The UN
Charter and the Nuremberg principles "bar wars of aggression." As
treaties, they are US law as well.
Watada was aware that imprisonment was the likeliest consequence of
his action. But he planned to put the war on trial in the process: "I
will try to argue the legal merits of the war: that it is illegal,
that it is immoral and that officers and soldiers of conscience
should not be forced to do something that is illegal and immoral."
The Army charged Lt. Watada with failure to deploy to Iraq with his
unit and began court martial proceedings. There began the torturous
process that ended with Watada's recent victory--a process that
echoes the old saying, "Military justice is to justice as military
music is to music."
Watada and his supporters prepared to put the war on trial. But
Military Judge Lt. Col. John Head refused to allow Watada's
motivation for refusing the order--the war's illegality--even to be
considered. Judge Head maintained that when Watada stipulated that he
had disobeyed an order, he was actually confessing guilt, making any
defense irrelevant.
The court tied itself in knots trying to maintain the paradox that a
soldier has a duty to disobey illegal orders while Watada could not
argue that the order he disobeyed was not a lawful order.
When the judge called for the prosecution and defense lawyers to
request a mistrial on the grounds that Watada must have misunderstood
his own statement, both sides told Judge Head that they disagreed
with him. At that point the judge virtually instructed the lawyer for
the prosecution to ask for a mistrial, which he immediately granted.
Judge Head proposed to retry Watada on the same charges. But, as
Watada's lawyer Eric Seitz said in a press conference after the court
martial, since both prosecution and defense had presented their full
cases, that would be an obvious breach of the Constitution's
safeguard against double jeopardy--trying anyone twice on the same
charges. The Army, Seitz said, should realize that "this case is a
hopeless mess."
Three military courts rejected Watada's double jeopardy claim; but as
soon as the case was appealed to a civilian court, US District Court
Judge Benjamin Settle issued a stay blocking the retrial and charging
that "the military judge likely abused his discretion." The Army
announced it would appeal but then did nothing for eighteen months,
leaving Watada in limbo. Finally, after a campaign by Watada's
supporters, the Obama administration's Department of Justice nixed
the Army's appeal. The Army threatened to court martial Watada on
other charges but finally decided to accept defeat.
Deeper Questions Remain
Ehren Watada is now free to go on with civilian life. But as the
Obama administration goes into arrears on its pledges to withdraw
from Iraq, plunges further into quagmires in Afghanistan and
Pakistan, and threatens to escalate conflict with Iran, the questions
Watada's action posed continue to haunt us. Here are a few:
Is there a right and obligation to resist?
Watada raised the fundamental question of whether authority--in the
military or in society more generally--is something to be blindly
accepted, or something to be subject to rational moral and legal
examination. He asserted that "the American soldier must rise above
the socialization that tells them authority should always be obeyed
without question. Rank should be respected but never blindly followed."
Gen. Peter Pace, then chairman of the Joint Chiefs of Staff, was
asked in 2006, "Should people in the US military disobey orders they
believe are illegal?" He answered, "It is the absolute responsibility
of everybody in uniform to disobey an order that is either illegal or
immoral." If so, what are the implications for soldiers, for the
military and for the rest of us?
Should the military hear claims that orders are illegal?
Watada stated, "I understand that under military law, those in the
military are allowed to refuse and in fact have the right to refuse
unlawful orders--a duty to refuse. In a court of law they should be
given the opportunity to bring evidence and witnesses to their
defense on how that order was unlawful. In this case I will not be,
and that is a travesty of justice."
Should the law recognize selective objectors?
The Selective Service Act provides conscientious objector status to
those who oppose all wars on grounds of moral conscience. But it
takes the position that objectors can't pick and choose their wars.
Yet today there are strong moral grounds to oppose many, if not most,
of the wars that occur, even for those who might admit in principle
that some wars might be justified. Amnesty International takes the
position that there is a right to such "selective objection" and that
those who are punished for refusing to participate in a war they
consider immoral are "prisoners of conscience."
Watada recognized that "in opposition to my position, the argument
will be made that soldiers don't have a right to pick and choose
their wars." But, he maintained, "I would respond that it is not only
our right but our constitutional and moral duty." Is it time to
recognize conscientious objectors to particular wars?
How can illegal wars of aggression be prevented?
There is currently a broad debate on torture in policy circles, the
public and to some degree in the courts. But torture is only one war
crime, and it's not the most severe. Yet there is virtually no effort
to question or establish accountability for the most important war
crime by the United States in Iraq: illegal pre-emptive war.
As Watada said, "I think the greatest crime that the leaders of a
country could commit--the leadership of a country--would be to take
their people, their country, into war, based upon false pretenses."
In a statement that won him an additional charge from the Army,
Watada told a Veterans for Peace convention, "To stop an illegal and
unjust war, the soldiers can choose to stop fighting it." Is such
action disloyalty, or a much-needed addition to our system of checks
and balances?
The Army vented its own frustration at its failure to convict Watada
by insisting that his resignation was "under other than honorable conditions."
Lt. Ehren Watada honorably sacrificed much and risked more "to make
sure that all Americans live in a country where we have true
democracy." The Army should honor him as a military hero.
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