The war on trial

Pub date January 23, 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 First Lt. Ehren Watada is set for Feb. 5 in Fort Lewis, Wash. 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 an officer" including the "use of contemptuous words for the President."

The story has received a fair amount of media attention, in part because the Pentagon is trying to force three journalists to testify against Watada (see "A Reporter Stands Up to the Army," 1/10/07).

But the soldier’s story is significant on its own.

A year ago, when Watada was on leave and out of uniform, he delivered a moving address to a Veterans for Peace convention. Watada is not a conscientious objector. He even offered to serve in Afghanistan.

But he questioned the legality of the war in Iraq, and he denounced the known lies of the George W. Bush administration. He said nothing more than what the world already knows, and he did not encourage any other soldiers to follow his example.

All the major issues of the Iraq fiasco — the fraudulent basis for the war, the absence of a formal declaration from Congress (which has no constitutional authority to transfer its war-declaring power to another branch), the war crimes, the flagrant violations of international treaties such as the United Nations Charter — are coming to a head in this historic battle between a junior officer and an army whose Abu Ghraib torture scandals shocked the world.

Ordinarily, the truth of a claim is a strong defense against any charge of defamation. Not in the Army, however. Army prosecutors do not intend to allow Watada any opportunity to prove in court that everything he said about the president is true. Prosecutors told the presiding judge, Lt. Col. John Head, that the truthfulness of Watada’s speech is irrelevant to the case.


On the charge of refusing deployment, Watada’s case may seem weak — he is, after all, an officer in the military, and he has failed to obey a direct order to go to Iraq. But his defense actually has legal merit: his actions are based on hard evidence about military conduct in Iraq and a clear understanding of the law.

Watada is raising matters of principle that concern the right of all soldiers to full protection of the law. Under the Constitution and the standard enlistment contract, every soldier has a right, even a duty, to disobey illegal orders. The legality of Watada’s orders pursuant to a "war of choice" is the central issue of the trial.

"The war in Iraq is in fact illegal," Watada told "It is my obligation and my duty to refuse any orders to participate in this war. 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."

No American soldier has any obligation to participate in military aggression, "crimes against peace," or any operation that violates 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 United Nations Security Council or when the use of force is an act of national self-defense and survival. The UN Charter, based on the Nuremberg Principles, 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."

In a celebrated case in 1900 (United States v. Paquete Habana), the Supreme Court ruled, "International law is part of the law of the United States and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for determination."

There is no exception for the military, no wall between domestic and international law.

In his speech to the veterans Watada noted that the US Army Field Manual states, "Treaties reutf8g 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…."


In the end, though, none of that may matter.

The strength of Watada’s legal case will make little difference if Army prosecutors succeed in preventing him from presenting evidence in his own defense in court, especially if judges adhere to the Machiavellian view that "in war, the laws are silent."

The American judiciary has a long, sorry record of ignoring the right of American soldiers to due process and the treaty clause and war-power clause in the Constitution. Too often, judges and prosecutors, both military and civilian, claim war is a political question, a foreign policy matter, something beyond judicial review. Hence, commanders can do as they please, and those who disagree can be imprisoned.

The political question doctrine, as it is known among lawyers, is the primary way by which judges circumvent international law. It is a way by which prowar judges and commanders foreclose any substantive discussion of the legalities of a war.

Few Americans remember the dark days of wartime jurisprudence four decades ago, when US courts refused to hear GI challenges to the Vietnam War. The full implications of the Watada trial can be understood in that context.

In the mid-1960s and early 1970s, American soldiers and marines were imprisoned for refusing to commit war crimes. For example, Dr. Howard Levy, a Green Beret dermatologist, spent two years in prison after he refused to train special forces in dermatology. He argued that to do so would violate the Hippocratic Oath; the Green Berets, he insisted, used medicine as a political tactic in Vietnam, and for him to assist them would cause increased suffering.

In 1965, David Henry Mitchell II, who was eventually convicted of willful failure to report for induction, challenged the legality of Lyndon Johnson’s war. He raised basic constitutional issues: the absence of a formal declaration, broken treaties, a pattern of war crimes on the battlefield. No soldier, Mitchell argued, should be forced to participate in criminal policies, to choose between near-sedition and the commission of war crimes.

Federal Judge William Timbers refused to hear the evidence. When Mitchell’s attorneys argued that under the Nuremberg Principles soldiers have a duty to disassociate themselves from war crimes, the judge freaked out. It is, he said, "a sickening spectacle for a 22-year-old citizen to assert such tommyrot." The judge argued that treaties and conventions are "utterly irrelevant as a defense on the charge of willful refusal to report for induction." The message was clear, and a deadly precedent was set: even if war is manifestly illegal, soldiers are still expected to participate. United States v. Mitchell was the first in a series of infamous cases through which courts placed presidential war beyond the arm of the law.

In a 1966 ruling against Army Private Robert Luftig, Federal Judge Alexander Holtzoff ruled that the war "is obviously a political question that is outside the judicial function." With "no discussion or citation to authority," the Federal Appeals Court concurred. In the most celebrated trial of the period, that of the Fort Hood Three — soldiers who demanded the protection of the Constitution and international law — District Judge Edward Curran refused to hear any evidence of systematic war crimes. He called the war a political issue beyond judicial cognizance.

Taken together, the Vietnam War rulings contradict the landmark precedent Marbury v. Madison. In 1803, Chief Justice John Marshall captured the essence of judicial abdication: "It cannot be presumed that any clause in the Constitution is intended to be without effect…. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?… It is emphatically the province and duty of the judicial department to say what the law is."

In this case the argument is particularly clear: Watada is not taking a political position as part of his defense. 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 unavoidable. These are political questions, but they aren’t what the first lieutenant is talking about. Watada is challenging the legality, not the political wisdom, of the war.

The president, he argues, is the final arbiter of foreign policy — but only so long as policies are carried out in accordance with the rule of law.


History has long since vindicated the soldiers of conscience who spoke out against the Vietnam War — soldiers who tried, albeit unsuccessfully, to uphold the Constitution and international law; soldiers who warned their beloved nation long before the My Lai massacre of America’s impending descent into barbarism. How many Vietnamese lives could have been saved? How many American soldiers might be home today with their grandchildren had American judges as well as presiding military commanders confronted the legal monstrosities of the war against Vietnam?

The cost of judicial abdication in the Vietnam War years, when American judges averted their eyes from the emerging holocaust in Indochina, is incalculable. Without judicial immunity, many of the horrendous deeds of the Johnson-Nixon years might never have occurred.

There were more than a dozen opportunities for American judges to confront the constitutional issues evoked by that undeclared war. When Supreme Court Justice William O. Douglas, who publicly acknowledged the illegality of US invasions in Indochina, offered to hear a war-challenge appeal, his colleagues on the court overruled him.

So today we ask: How many more Iraqis and Americans will die before American judges fulfill their current obligation to uphold and enforce the rule of law? How long will it be before the infamous Vietnam War rulings are reversed, before the blood-drenched political question doctrine is buried for good?

Lt. Col. Head, presiding at Watada’s court-martial, is already preparing to repeat the follies of the past. At a pretrial hearing Jan. 17, he denied all defense motions to present hard evidence of systematic war crimes in Iraq. He rejected the Nuremberg defense. He also upheld a pivotal government motion "to prevent the defense from presenting any evidence on the illegality of the war." Like past accomplices, he claimed that Watada’s case is a "political issue" beyond the jurisdiction of the court.

Capt. Daniel Kuecker, the prosecutor in the pretrial hearings, could not be reached for comment, but Watada’s civilian attorney, Eric Seitz, expressed outrage at Head’s judicial abdication. These rulings, he told the press after the hearing, "are extraordinarily broad and subjective, which I find reprehensible. They are essentially saying there is no right to criticize, which we all know is not true." He added, "These rulings are about as horrible and inept as I could have imagined."

The question can no longer be avoided. Do American soldiers have any rights that their commanders and judges are bound to respect? As civilians, do we not have an obligation to provide our troops full protection of the laws for which they risk their lives? *

Paul Rockwell, who taught constitutional law at Midwestern University in Texas, is the author, with Cindy Sheehan, of Ten Excellent Reasons Not to Join the Military, published by New Press in 2006.