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A Travesty Of Justice:

Stop The Court-Martial Of Lt. Watada

by Paul Rockwell

Oakland, California

Someone should file a suit against the U.S. Army for plagiarizing George Orwell’s novel, 1984.

Orwellian irony hangs over the pending court-martial of Lt. Ehren Watada, the first commissioned officer to refuse deployment to Iraq. The Army is seeking to imprison the Hawaiian soldier of conscience, not for lying, but for telling the truth; not for violating the law, but for upholding it. Watada refuses to carry out illegal orders, to participate in crimes against peace.

Recently the Army charged Watada with “missing movement,” use of “contemptuous words for the President,” and “conduct unbecoming an officer and a gentleman.” It’s true Watada openly denounced the invasion of Iraq. He claimed in public what most of the world already knows -- that President Bush manufactured the case for war, that he lied to our troops. That’s not really news. But Watada believes that no American soldier should take a life, or give up a life, for a lie. There are many kinds of betrayal in human affairs -- theft, adultery, embezzlement. But in the affairs of state, there is no greater disloyalty than to send young men and women to their death on the basis of fraud.

The U.S. Army is putting the wrong person on trial.

In a world of logic and common sense, the truth of a claim is a legitimate defense against the charge of libel.

Not in Orwell’s Army, where lying for the President has become a patriotic duty. Just quoting the Geneva Conventions about collective reprisals or the use of indiscriminate weapons can get you busted.

And to date the Army has yet to court-martial a single commander, or any high level personnel (of which there were many), involved in the torture system at Abu Ghraib. This is the same Army that court-martialed Camilo Mejia for disassociating himself from the degradation at Abu Ghraib. Even before the scandal broke, Mejia filed written complaints, protested atrocities that he witnessed, only to be imprisoned for nine months for speaking truth to power.

The court-martial of Watada is simply the Army’s latest Catch-22. And the ethos of contempt for international law, combined with the punishment of those who show respect for it, are two phases of one policy that is destroying the morale of American troops.

A Constitutional Crisis

The Watada story is gaining international attention. The pending trial, where the highly respected, undaunted officer intends to confront the illegality of the war, could be a turning point in American jurisprudence, a test of its integrity. All the major legal issues of an imperial occupation -- the fraudulent basis for the war; the absence of a formal declaration from Congress (which has no Constitutional authority to transfer its war-declaring responsibility to the executive branch); the systematic nature of U.S. war crimes in Iraq; the flagrant violation of international treaties -- are coming to a head in this historic battle between a soldier of conscience and a desperate, vulnerable military Goliath.

A movement to halt the court-martial of Watada, energized by Courage to Resist, Code Pink, Iraqi Veterans Against the War, Veterans for Peace, and others is growing. Watada is becoming a Rosa Parks of the U.S. Army.

On August 22nd Investigating Officer Lieutenant Colonel Mark Keith disregarded the testimony of Watada’s attorneys regarding the illegality of the war. Keith recommended a general court-martial of Watada on all charges. His ruling is an open attack on a soldier’s right of political speech, a right integral to the right to vote.

The Colonel’s ruling rests on two fallacious claims: first, that international laws and treaties are irrelevant to Watada’s refusal to follow an order; and second, that the legal issues raised by the defense “are political questions and not within the purview of a court-martial.” Keith was insistent: “The defense argument regarding the war is a political question and therefore irrelevant.” The entire case turns on the “political question,” which is legalese for suppressing any challenge to Presidential abuse of power.

War is not a “political question”

The political question doctrine, as lawyers call it, lies at the very center of the constitutional crisis over imperial war, an emerging contest between constitutionalism and judicial realpolitik.

Col. Keith’s political question gambit is unfair. Watada never raised political issues in court. He does not base his defense on political interpretations of the occupation. By his refusal to participate in the occupation in Iraq, Watada is challenging the legality, not the political wisdom, of the killing of 100,000 Iraqis who never attacked or threatened the U.S.

It may be true that the U.S. is over-extended, that invasion creates blow back; that unilateral actions alienate allies, that war debts boomerang on the economy. These are political positions, to be sure. But they are not part of Watada’s defense.

The use of cluster bombs in populated areas, where kids are killed and maimed; collective reprisals against entire cities and populations like Fallujah; systematic use of torture to gather information; violation of the sovereignty of states -- war crimes of Army commanders are not political decisions. They are matters of law and morality, and all of them are subject to judicial review, if not public defiance.

Will American judges uphold international law, or will they ignore it? That is the real question in the Watada case.

It is true that the invasion of Iraq is a direct result of political calculations in Washington. That is precisely the point, why the legality of the war is central to Watada’s case. The Kellogg-Briand Pact (1928), the Nuremberg Tribunal, and the U.N. Charter all prohibit war “as an instrument of politics.” A war for mere political ends is not a war of self-defense.

Nor does the political nature of Bush’s preemptive invasion prevent American courts from exercising judicial review, especially when specific orders and acts violate human rights. The fact that the political branches of government are responsible for launching a war is not decisive.

In 1962, the Supreme Court rejected the political question doctrine in a case of state legislative districts. Few issues are more politicized than legislative apportionment. The Court ruled that equal protection issues of the 14th Amendment merited judicial review.

In 1927, Justice Holmes wrote in Nixon v. Herndon: “The objection that the subject matter of the suit is political is little more than a play on words. Of course the petition concerns political action, but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years...”

In 1952, the Supreme Court allowed Steel companies to challenge the constitutionality of Truman’s Korean war actions. The Korean war was never declared by Congress, though Congress, like a puppy, followed along. The Court did not invoke the “political question.” The judges heard the case and eventually ruled in favor of the corporations, whose profits were impacted by undeclared war.

Keith’s ruling contradicts the Korean War precedent. It represents unequal application of the law. Certainly American soldiers have as much right as corporations do to challenge the war abuses of a president. Are profits more sacred than the lives of American troops?

Observers of the recent Article 32 hearing believe that military judges may never allow Watada an opportunity to present a real defense in court.

Not that Watada’s defense lacks merit. On the contrary, his case is based on hard evidence and a deeply Madisonian understanding of “elective despotism” and the law.

Under the Constitution, under the enlistment contract as well, soldiers have a right -- they even have a duty -- to disobey illegal orders. The legality of Watada’s orders to participate in a preemptive war is the central issue of the trial.

No American soldier has any obligation to participate in military aggression, in crimes against peace, or any operations that violate the Geneva Conventions. Under constitutional government, the authority of military command derives, not from the Commander-in-Chief, 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 Security Council of the United Nations, or when the use of force is an act of national self-defense and survival. Nor is “self-defense” some vague, ambiguous concept. It refers to defense from an armed attack, actual or demonstrably imminent, so that there is no alternative but to respond in force. Apart from these conditions, war is an act of aggression. The Nuremberg Conventions prohibit war “as an instrument of policy.” International law prohibits all “wars of choice.”

The suffering people of Iraq are being killed in their own streets, their own homes, their own mosques. The occupation of Iraq is flagrantly illegal. It meets none of the conditions for a legal war.

There is a popular tendency among lawyers to sneer at international law, as if it were passé. But the Constitution is clear and 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 (The Paquete Habana) in 1900, 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. The “Law of Land Warfare,” the U.S. Army Field Manual states: “Treaties relating 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 statues...”

As Alexander Hamilton put it in a warning against attempts to mute the enforcement of treaties: “It is a contradiction to call a thing a law which is not binding.”

Lt. Watada is not fighting for himself alone. He is fighting on behalf of all American soldiers who deserve protection of the Geneva Conventions, international law, and the Constitution itself. With active support from his father and stepmother, he is defending a soldier’s right to political speech, the right to participate in the electoral process.

The Watada court-martial should be canceled. It is time to prosecute the real criminals, not the vindicators of the social contract on which the dignity and legitimacy of military service itself depends.”

Paul Rockwell is a writer living in Oakland

Published in In Motion Magazine September 17, 2006

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