Paul Rockwell

A deadly Clinton legacy


OPINION In her autobiography Living History (Simon and Schuster, 2003), Sen. Hillary Clinton portrays herself as an advocate for children, a defender of women and human rights. In fact, the Clintons have a long history of sacrificing the rights — and even the lives — of children for political expediency. It is time to set the record straight.

On Sept. 6, 2006, a Senate bill — a simple amendment to ban the use of cluster bombs in civilian areas — presented Sen. Clinton with a timely opportunity to protect the lives of children throughout the world.

The cluster bomb is one of the most hated and heinous weapons of modern warfare, and its primary victims are children.

Sen. Barack Obama voted for the amendment to ban cluster bombs. Clinton, however, voted with the Republicans to kill the humanitarian bill.

It’s hard to believe that Clinton was unaware of the humanitarian crisis when she voted to continue the use of cluster bombs in cities and populated areas. A United Nations weapons commission called cluster bombs "weapons of indiscriminate effect." For years the international press reported the horrific consequences of cluster bombs on civilians. On April 10, 2003, for example, Asia Times described the carnage in Baghdad hospitals: "The absolute majority of patients are women and children, victims of shrapnel, and most of all, fragments of cluster bombs."

Even after wars subside, after treaties are signed, and after belligerents return home, cluster bombs wreak havoc on civilian life. Up to 20 percent of the bomblets fail to detonate on impact, only to become landmines that later detonate on playgrounds and farmlands.

Children are drawn to cluster bomb canisters, the deadly duds that look like beer cans or toys before they explode.

Because Clinton is now taking credit for accomplishments during the White House years, when she was a partner in power, we should also look closely at Bill Clinton administration’s policy regarding landmines. The United States is the leading manufacturer of landmines. For families across the rest of the globe, landmines are buried terror. More than 100 million mines are deployed in more than 60 countries worldwide — 9 million in Angola, 10 million in Cambodia. About 20,000 M14 antipersonnel mines are buried in the mountain areas of Yong-do, South Korea. According to UN estimates, 26,000 people, mostly civilians in developing countries, are killed or mutilated by landmines every year.

The worldwide movement to ban landmines burgeoned during the Clinton years. In Dec. 1997, 137 nations more than two-thirds of the world’s countries — signed the Ottawa treaty, an agreement to ban the use, production, stockpiling, and transfer of antipersonnel landmines. How did President Clinton respond?

Clinton flat-out refused to become party to the Ottawa convention. As he put it, "I could not sign in good conscience the treaty banning landmines."

In "good conscience"?!

Landmines are not good for children, Hillary.

Paul Rockwell

Paul Rockwell ( is a national columnist living in the Bay Area.

The war on trial



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.

Allison inspires youth


OPINION I first saw Aimee Allison, District 2 candidate for the Oakland City Council, when she addressed a large, enthusiastic crowd of high school students, mostly students of color, from Oakland Tech, McClymonds, and Skyline. She spoke about the ruin and costs of war, the need for decent jobs, and practical ways and means for overcoming poverty in Oakland.
What impressed me about the young, vivacious candidate from the Grand Lake–Chinatown district was not just her Ron Dellums–like vision of Oakland, where “a better world begins.” It was her special ability to break through youthful feelings of despondency, the Generation X cynicism that continues to impede social progress. Allison has a special asset that her adversary, incumbent Pat Kernighan, lacks: an ability to inspire hope and activism among youth, including the struggling students in the least affluent sections of our city.
On Sept. 17, Constitution Day at Laney College, students hosted a debate between Kernighan and Allison. After the debate I talked with Reginald James, a 24-year-old Laney College student. He told me other students agreed that Kernighan was unprepared. “She was unable to relate to youth, to find common ground.”
James said Kernighan tended to blame the federal government for Oakland’s problems, deflecting responsibility from the City Council on which she serves. In contrast, Allison said incumbents should accept accountability for their failures, and she challenged the students to become active in their own cause.
During the debate Kernighan was almost fatalistic. “When there are not enough resources, we have to make hard decisions,” she argued. After the debate, Oakland teacher Jonah Zern summarized Kernighan’s presentation: “Pat continuously stated that she was powerless to change the problems of Oakland, that it was the state and federal government that need to make changes. It made me wonder. Why was she running for City Council?”
It was not her political positions as such or even her record that irked the youthful audience. One student asked Kernighan why the streets in the flatlands are not as clean as those above the freeway. She replied, “They don’t sweep the streets up there because the people do not tend to throw their trash out in the street.” The insinuation that people in the hills are superior to less-fortunate folk upset some students. Allison’s remarks, in contrast, were well received. Allison said, “In rich neighborhoods, parents can raise money for their kids’ sports teams. In others, schools don’t have teams. In rich neighborhoods, they can send their kids to music lessons, while in poor neighborhoods, music and art programs are being cut. Every child deserves an opportunity.”
Kernighan works hard. She knows the ins and outs of city government. But she has no vision, no plan to address the structural defects of Oakland’s social life. As a successful businessperson, Allison responds well to the needs and feelings of the middle class. But unlike most politicians, she maintains close relations and ties with the young and poor of Oakland. She has a valuable talent for enlisting youth in the fight against crime, for uniting our diverse cultures.
Understanding the needs and longings of young Oaklanders, tapping their potential to become agents of change, is a precondition of effective leadership on the City Council. If the Laney debate is an example, Kernighan is out of touch. SFBG
Paul Rockwell
Paul Rockwell is a writer living in Oakland.