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February 07, 2007

Comments

My sincere thanks to you, Andrew.

I know that you will represent us well.

Ah, a well articulated position, with more than a few points I also share....

I wish you weren't going. It's not because I don't trust you to do the right thing there or because your reasons aren't persuasive; I just wish you weren't going.

Seconded.

Thirded. But I respect your reasons for going immensely. Which is, to me, no surprise at all.

A kind response to a fairly inarticulate page of comments. Is yjis now where I get to do my thing on Arkin, Owen, and Prussia? Never mind.

"I suspect that Bob and others will argue that there are some things that are worth tearing everything down for. I concur with that belief..."

Civil disobedience or mutiny in some specific place, time, or situation does not imply or usually involve a total rejection or breakdown of law and society entire. That MLK would make unauthorized marches was not a license for complete lawlessness. There is sometimes a danger of not being able to control a movement or mob, but usually in practice uprisings return to equilibrium.

There can be a faith (or skepticism, or cynicism) about human nature and behavior that is not afraid of occasional political dynamism. For whatever reasons, most people prefer order to disorder, which I believe grants a little more working room to those who would throw sand in the gears of the machine from time to time.

Josh Marshall said this week that the country will survive Iraq. The military would survive a mutiny. Usually just entails a change of bosses, some selective punishment, and then back to soldiering.

For kicks:Band of Brothers, episode 2 in England, I think, when the non-coms asked for a change of leadership.

I presume there are other historical examples of justified mutinies. Bounty probably wasn't one, but I heard quite recently that Fletcher Christian learned of one just before he left port.

The war is Iraq is illegal, Andrew: because the justification given for invading was based on a series of lies. The US had no right to break the cease-fire (the Security Council did, but the US acting unilaterally did not) and even claiming that the US was only restarting a war 12 years into a cease fire doesn't work: this was all argued over at the time, and Lord Goldsmith (the UK's Attorney General) reported his reasoning that the legality of the war was shaky to Tony Blair, who then omitted most of it in his report to Parliament.

That said, this post is a decent argument for why you believe the war to be legal, and that being so, I respect you for doing your duty as a serving officer and going. And I do wish you well. Good luck and good wishes, to you and to your family.

I echo everyone else's sentiments here, so setting that aside to talk about the Watada case, I thought that the declaration of a mistrial was very interesting, in that the Army pinned its case on the fact that Watada's signing of a document acknowledging he disobeyed orders made him guilty, and because that wasn't clear and it was brought before the jury, it would unduly prejudice them (I think, explanations are welcome) I'm a bit surprised that the prosecution can make a mistake like that and get a mulligan, but it also means that the defense now knows a lot more about the prosecution's game plan.

anyway, because Watada is half Japanese-American, there is a bit more siding with him from me than might normally be the case.

Don't know whether the defense rests purely on the claim that the war was started illegally. It could be argued that the war ceased to be legal at a certain point.
And apart from the legality of the war as a whole, the conduct could be considered as being on the doubtful side.
If a soldier can with a high probability expect that he will be given orders to commit war crimes, a refusal to willingly enter that situation can at least be debated to be legally acceptable.
A trial would have to decide whether that scenario is a real one or one without base in reality.
Clarification: This post does not intend to make the decision but just to point out certain aspects.

the United States is not a democracy. It is a republic. We elect men and women to make decisions for us. As long as they make those decisions in accordance with the framework we have set out, we are bound by law to respect those decisions.

I don't quite get your meaning here. If the distinguishing feature of a republic as opposed to a democracy is its representative nature, then there are no democracies existing at the present time, only republics. But these are generally called representative democracies, so in this regard the distinction between republic and democracy falls flat. And even if republic was contrasted with direct democracy, people are still obligated to obey the outcome of the decisions reached via this process and will be punished if they don't. Save for anarchy or failed states, which are defined by the absence of a political framework or the power to enforce it, there are simply no circumstances in which individuals are not bound to obey the given laws and decisions without facing some sort of penalty.

Good post, Andrew. Despite my disagreement with the war, having grown up an Army brat, I agree with a great many of your points here; and I have in the past shown little tolerance for Johnny-come-lately "conscientious objectors" who only find their consciences when they're finally getting shot at. If you want to avoid going to war, the first step is not to join the Army. (This plays into a whole host of other issues I have with the way our peacetime military has been marketed and sold to potential recruits, but that's for another time.)

As to this, though: Nor do I think that appeals to international law establish the illegality of the Iraq war. Iraq was in breach of the 1991 cease fire agreement for the better part of a decade. Because the agreement was a cease fire and not a peace treaty, the United States had every right to resume the war begun in 1991. I agree with Jes on this -- that ceasefire was between "Iraq and Kuwait and the Member States cooperating with Kuwait" according to Par. 33. The United States had no legal right -- certainly none to be found within the ceasefire itself, nor within any other bylaw of the UN of which I am aware -- to resume hostilities.

Interesting, CNN had a clip of Watada's lawyer speaking, saying that the mistrial was double jeopardy as they didn't ask for it.

That said, this post is a decent argument for why you believe the war to be legal, and that being so, I respect you for doing your duty as a serving officer and going. And I do wish you well. Good luck and good wishes, to you and to your family.

Let's assume that the war is illegal. (I don't believe it is, for the reasons cited by Andrew as well as others, but let's put those arguments to one side.) Is is good policy to allow individual soldiers to declare it illegal? Is that policy consistent with the notion of civilian control over the military?

It is true -- as oft stated -- that there is no duty to obey an illegal order and, indeed, in some circumstances there may be a duty to resist one. This is an admitted exception to the notion of civilian leadership, and generally forbids the "just following orders" defense. But the question is where, when, and how to invoke the exception, because if it is invoked too frequently or without basis (or even with arguable basis) it becomes an exception that swallows the rule whole -- and then some.

1LT Watada joined the army voluntarily after the Iraq war began. At that point, he apparently did not view the war as illegal. He had available to him at that time all the information that he could reasonably claim later led him to conclude that the war is illegal. (Note that whether the war is illegal is separate from whether there was deception involved in deciding to go to war; one can be deceived into undertaking a perfectly legal war.) That in itself admits that Watada himself knows that the case for illegality is not clear cut, but rather arguable. 1LT Watada is also not disobeying any order that could be remotely considered to constituted a "war crime" or to be anywhere near that level. He is not even refusing an order to shoot at the enemy. He is simply refusing to deploy.

I don't have much sympathy for 1LT Watada's plight, nor do I think that making his case a cause celebre is in the interest of the country or its ideals. Civilian command of the military is a big deal, and not something to be rejected unless the reasons to reject it are clear and unambiguous and the order itself compels the commission of a war crime (or equivalent wrongdoing). This is not that case. 1LT Watada should go to jail.

Great post Andrew.

he says that the war is illegal and that he is justified in not going because he cannot legally be ordered to fight an illegal war

Even that doesn’t hold water with me because he volunteered in June 2003, months after the war began. Did he honestly think he could pick and choose where he would be deployed? Due to the timing, he may have thought that with major combat operations over and the insurgency not yet in full bloom (and as I recall things in Afghanistan pretty quite at the time) that he would never actually see action.

Question for Andrew: Could he have resigned completed at any time before he completed OCS? If so, then I smell something else going on here.

OCS: Even that doesn’t hold water with me because he volunteered in June 2003, months after the war began.

He might at that time still have believed that Bush wasn't lying when he claimed that the war in Iraq was legal because Iraq represented a direct threat to the US. As I recall, the fact that Bush was lying didn't begin to make it into the American mainstream press until July 2003, and even now, there are Americans who still think Bush was telling the truth at least as he saw it, back in 2002/early 2003.

Lord Goldsmith's legal advice to Blair was not made public in full until 2005 (I think - it may have been 2004, but it was certainly long after the war started). True, it was possible for an ordinary person - who dug up readily available facts on the Internet, who looked at the legislation and the UN resolutions rather than relying on mainstream reportage - to know as early as January 2003 that Bush was lying, that Blair was lying, and invading Iraq would be an illegal war. But it was also possible for an ordinary person who simply believed that the President and the Prime Minister wouldn't lie on something as important as a case for war, to believe the war was legal as late as the end of 2003.

Unless you knew earlier than June 2003 that this was an illegal war, OCSteve, I don't think you can decry this lieutenant for not knowing it either, then. (I did: and I don't.)

He's probably going to go to jail for a hell of a lot longer than people who have actually committed actual war crimes. I have to say, the disparity in sentences sought and received in these cases just gets more and more glaring.

Nobody in their right mind wants to go into combat for the sake of going into combat. While I cannot speak from experience, I believe I am on safe ground in saying that war is a horrible, dehumanizing, degrading experience that does terrible things to all who experience it.

These are both painting with a fairly wide brush. I know a good many people who went to war and returned undehumanised, undegraded and without having had anything terrible done to them. I know a good many who did not go to war for money, or to defend their country, or because they thought that their cause was just, but simply because they thought that it would be, on the whole, enjoyable - and they were right.

People do enjoy war. Lots of people. For a lot of the world's population, going to war as a soldier doesn't represent a huge change in personal circumstances - in terms of danger, discomfort, poverty or whatever - and includes the possibility of considerable reward in terms of status or loot, not to mention the pleasure involved in the war itself. It's fun (for some people) to kill your religious or ethnic rivals. It's fun (ditto) to steal their property and burn their houses. It's fun to run around with guns and get the respect of everyone in the village as a Real Hero. Of course it is. It also beats subsistence farming hollow.

That doesn't mean war is a good thing. But saying that wars are horrible for everyone involved is simply wrong, and will lead you to think all sorts of other dangerously wrong and misleading things.

Bob,

I believe there is a nontrivial difference between one company's sergeants (episode 1, not 2, btw) refusing to go into combat under a specific officer and a large number of officers refusing to go into combat for a specific war. COL Sink chose to replace CPT Sobel, but he was under no obligation to do so, and that decision was not going to break the regiment. I think that something on the scale you're contemplating would, in fact, break the Army.

As Von notes, once we establish the principle that every soldier gets to decide whether a war is legal or not, the military simply doesn't work. Like it or not, that's a pretty simple fact.

As for complaints that the U.S. didn't have the right to unilaterally respond to Iraq's violations of the 1991 cease fire, when it comes to the U.S. military, the only law that matters is U.S. law, not international law (the U.S. military is bounded by many international agreements, but that is because the U.S. government has ratified them, making them U.S. law). I'll leave arguments over whether or not the war was illegal under international law to experts. Under U.S. law, the war was perfectly legal.

Just out of curiosity von, do you think someone who had enlisted before Iraq would have a better case? Or someone who had been called up from RR?

I mentioned that I am a bit more sympathetic to Watada because he is Japanese-American. Watada's position can be related back to the no-no boys, JA internees who refused to be drafted because they were interned. Eric Muller's book Free to Die for their Country (excerpt here) presents this story, and, while I have seen no direct link, I think he may have been aware of the previous history.

Jes: Unless you knew earlier than June 2003 that this was an illegal war, OCSteve, I don't think you can decry this lieutenant for not knowing it either, then.

Irrelevant. As has been pointed out, we could legally resume hostilities the first time an AA radar locked on in the no-fly zone (or any other number of cease fire violations).

He is bound to carry out all lawful orders, end of story. Until such time as the US declares the war to be unlawful, his movement orders are completely lawful.

Steve, that's simply not correct. Breach of an agreement doesn't necessarily carry the remedy of a full scale invasion. (I agree that it's US law that controls however).

Also, for int'l law, you can argue that the occupation is legal even if the invasion wasn't.

If that's the case, it is surprising that the prosecution rested its case (I think) on the fact that he 'admitted' his guilt by signing a document stipulating he missed movement.

As Von notes, once we establish the principle that every soldier gets to decide whether a war is legal or not, the military simply doesn't work. Like it or not, that's a pretty simple fact.

That is, in fact, the situation right now. It is every soldier's duty to decide whether any order he is given is legal or not, be the order "Shoot that man" or "Burn that house" or just "Report to this base at 0700 to fly to Iraq", and if he decides that the order is illegal it is his duty to disobey. We can talk about changing that if you want, but then you have the prospect of soldiers going to prison for mutiny when they refuse to murder civilians, and I think that would be worse than the present situation.

Von seems unaware of the fact that aggressive war is actually illegal in itself. It is not just a crime, it is, in international-law terms, THE crime. And if Lt Wataba came to the conclusion that the Iraq war was aggression - whether he reached that conclusion in March 03 or February 07 - it was his moral duty to refuse to fight in it. The rest is just Vonnish obfuscation.

Sorry, that was to OCSteve's comment

No, OCSteve, that's not the point I'm making.

You think the Iraq war is legal, and you have at least got George W. Bush's legal team on your side.

I and many others think the Iraq war is illegal, and we have most of the facts on our side.

However, the argument that you appeared to be making ("Even that doesn’t hold water with me because he volunteered in June 2003, months after the war began.") was that it was not possible for someone to sincerely believe the Iraq war was legal in June 2003, and later - armed with better information - realize that it is, in fact, not legal.

The Road to Hell ...Phil Carter of Intel Dump links to a new book about the Origins of Modern War.

"As Von notes, once we establish the principle that every soldier gets to decide whether a war is legal or not, the military simply doesn't work."

You miss my point if the think I am trying to establish a legal principle or precedent.

I was trying to remember the 18-19th century European conscripted model. Sorry, I do believe we had battles and entire wars fought
by soldiers who only went forward because there was a sword or sidearm at their backs. Willing soldiers might be more effective, but unwilling soldiers were not completely useless. Entire empires were built with them.
...
In any case, and I do not expect you to respond, for I am not sure that saying it is legal for even myself. my model is some level of dissatisfaction rising up thru the ranks until it results in a change of policy or military coup.

In principle, a move by the JCS to depose Bush/Cheney and install Pelosi...who I think then would likely make Hagel VP and resign...would not necessarily turn the US into an unending cycle of Pinochets or permanent revolution. I am constantly amazed at how much faith is put in the law, how much is invested in protecting it.

That Linday Graham and the Senate told me some acts are now legal does not mean squat to me.

What works for you, works for you, Bob. I took an oath to uphold the U.S. Constitution, and I'm pretty sure that instigating a military coup would violate that oath.

While it is true that US law is controlling here, what is usually overlooked is that the UN Charter--a treaty ratified by the United States--carries the weight of an Act of Congress under Article VI of the Constitution. There are a lot of nuances to A6, but none that refute the weight that the UN Charter carries as a treaty to which we are a party.

The invasion of Iraq was a fairly blatant violation of Chapter VII of the UN Charter. Bush's invasion of Iraq was unconstitutional.

The subsequent occupation was both authorized by the AUMF and by the UNSC, and while disastrous, is not illegal.

Breach of an agreement…

A stretch, OK.

As long as this action (war/occupation) is legal under US law then the movement order is a lawful order and he has no choice but to obey it or face the consequences.


Jes:not possible for someone to sincerely believe the Iraq war was legal in June 2003, and later - armed with better information - realize that it is, in fact, not legal

I take your point. But legality in this case is not his decision to make.

“Shoot that man" or "Burn that house" – yes, he can and should declare that to be an unlawful order and refuse to follow it.

“Report to Iraq” – no. He does not have the foundation to declare that to be an unlawful order.

Until such time as the US declares the war to be unlawful, his movement orders are completely lawful. [OCSteve]

This would imo only be true if you see a difference between legal and lawful.
Otherwise you would risk throwing in your lot with the Nuremberg defendants that declared that a broad range of atrocities were legal because they had made laws declaring them to be legal.
Btw, do you assume that any US administration would officially declare a war started and conducted by the US unlawful? The best one could expect would be a "We shouldn't have done it". Otherwise there could be legal consequences and the US have not actually a good tradition in that (or few presidents would not have ended their days in jail).

Clarification: This is not meant as an insinuation that you share any of these sentiments or are of the above mentioned opinion. It is only a statement what it would imply logically.

I hope I'm not offering anything controversial when I suggest that there is a considerable gap between 'I followed orders and shot prisoners' and 'I followed orders and deployed with my unit'. While there is some small temptation to see all wars subjected to the approval of the judiciary, I'm afraid that's not how our system works and it would be terrifically ponderous and unworkable. Watada would be in the right if he refused to carry out any illegal orders he might be given in theater, but we can't give soldiers the ability to declare entire wars illegal.

lj:If that's the case, it is surprising that the prosecution rested its case (I think) on the fact that he 'admitted' his guilt by signing a document stipulating he missed movement.

I don’t think it got that far.

The case's judge, Lt. Col. John Head, declared the trial over after a day of wrangling over a stipulation of facts that Watada had signed before the trial and that would have been part of the instructions to the jury. The judge decided that Watada never intended when he signed the stipulation to mean that he had a duty to go to Iraq with his unit.

He had been charged with two other counts of conduct unbecoming for interviews he gave. Prosecutors dropped those charged in return for Watada's signing a stipulation that he had given the interviews. He also acknowledged in the stipulation that he didn't go with his unit to Iraq, though he didn't admit his guilt to the missing movement charge...
With the jury of officers out of the courtroom Wednesday morning, Head wanted to question Watada about the stipulation to make sure that it was accurate and to protect the lieutenant against any mistakes in it.…

To prove a charge of missing movement, the prosecutors need to show that Watada did not report when he had a duty to do so. The disagreement that prompted the mistrial was about whether Watada admitted missing troop movement and having a duty to report, or only missing troop movement.
... "I see there is an inconsistency in the stipulation of fact," the judge said Wednesday. "I don't know how I can accept (it) as we stand here now."
Because much of the Army's evidence was laid out in the document, rejecting it would hurt its case, Head acknowledged. He granted the prosecutors' request for a mistrial, which Watada's lawyer opposed.

So the issue would seem to be "missing troop movement" vs. "having a duty to report".

If you have no duty to report, then missing troop movement is moot? He stipulated to missing troop movement but not that he had a duty to report to begin with.

I wish you weren't going. It's not because I don't trust you to do the right thing there or because your reasons aren't persuasive; I just wish you weren't going.

I wish you weren't going, because I think the US military is doing more harm than good over there. Don't take it personally. I wish you well though.

It goes without saying that IANAL, but if the question that he missed movement means that he is therefore guilty, there shouldn't have been a mistrial based on that document, I think. How can 'much of the Army's evidence' be laid out in that document?

"but we can't give soldiers the ability to declare entire wars illegal."

See I am not even sure what this means.

But if the President tomorrow were to order the immediate bombing and invasion of Montreal, I do believe the least likely outcome would be the invasion and destruction of Montreal.

I agree with byrningman -- return safely Andrew, and soon.

Watada would be in the right if he refused to carry out any illegal orders he might be given in theater, but we can't give soldiers the ability to declare entire wars illegal. [Andrew]

I tend to disagree. On the other hand I do not deny the government's right to challenge the soldier's claim. The consequences are a different matter and I will not present a "perfect solution".

But if the President tomorrow were to order the immediate bombing and invasion of Montreal, I do believe the least likely outcome would be the invasion and destruction of Montreal. [bob mcmanus]

I'd call that dangerous optimism. At least the bombardment would in my estimate happen first and the debate start later. I have doubts that even an order to bombard parts of the US would be refused by everybody available (it would be more difficult to find enough infantrist to machine-gun a crowd though).

lj: but if the question that he missed movement means that he is therefore guilty

IANAL either. My guess:
acknowledged in the stipulation that he didn't go with his unit to Iraq, though he didn't admit his guilt to the missing movement charge

He stipulates that he missed his deployment.

To prove a charge of missing movement, the prosecutors need to show that Watada did not report when he had a duty to do so

But not that he is guilty of the missing movement charge, one component of which is a duty to report.

He is making his case on the duty to report component.

Prosecutor should have nailed down his plea bargain a little more tightly?

I don't believe there is a perfect solution. But giving individual soldiers the power to challenge a war's basic legality is an awfully slippery slope. If I am ordered to commit an unlawful act, I not only cannot use that order as a defense of my actions if I obey it, I can be prosecuted for failing to resist that order even if I didn't execute it. If we establish the principle that individual soldiers can challenge the legality of a war, than are the soldiers who went to war without so challenging the war then culpable for their participation in an illegal war?

And if we establish that individuals get to decide what is and is not legal within the context of US laws, then why can't the armed robber decide that his actions are perfectly legal? Why would that not be a defense?

"I'd call that dangerous optimism. At least the bombardment would in my estimate happen first and the debate start later." [Hartmut]

I stand by that optimism, for I am not sure there is any alternative in the modern age, and although apparently some would call that optimism treason or dishonor.

It is not the President's toy.

Breach of an agreement doesn't necessarily carry the remedy of a full scale invasion. (I agree that it's US law that controls however).

Well, no, but who decides? Congress gave President Bush the authorization to go to war; the war is legal.

Jes (and others) make the argument that Congress was misled. (Actually, they phrase it as the people were misled, but all that matters for these purposes is Congress -- we are talking only whether the law is legal under US law.) I don't think that's necessarily credible: Congress had virtually all the intelligence Bush had and, if they didn't speak up against the war, it was at worst out of political cowardice.

Watada doesn't have a leg to stand on. He should go to jail, and quickly.

I also disagree with Katherine's assertion that war crimes carry lighter penalties that the 3-5 years Watada is likely to receive. Granted, many war crimes are not prosecuted, but those who are tend to be severely penalized.

And if we establish that individuals get to decide what is and is not legal within the context of US laws, then why can't the armed robber decide that his actions are perfectly legal? Why would that not be a defense?

Or how about a individual who decides that he'll be a latter-day Robin Hood, and views the accumulation of a net worth of more than (say) $1,000,000 to be illegal thereby justifying his actions? Oh, he'll promise you that he's sincere, he'll be able to point to all sorts of comments from a range of sources that he says can be read to support his claim (international law to natural law to Marxism) and he promises to get by without any violence, using only his wits and winning smile. Or, if that's still too "out there" for you, what if our Robin Hood decides that Bill Gates' wealth was bourne in part out of an illegal monopoly -- a claim for which there is at least some legal precedent, unlike Watada's -- and thus at least some portion of it should be forfeit?

Society functions because it endows specific people with the right to determine what is legal and what is not in accordance with (hopefully clear) rules.

"Watada doesn't have a leg to stand on. He should go to jail, and quickly."

To be clear, I am not disagreeing with this, at least in principle and as a general rule.

However I can conceive of stuations where an entire company might resist an order, or a brigade, or a division, and although in principle the situations would not differe, in practive I think they would.

Andrew: If we establish the principle that individual soldiers can challenge the legality of a war, than are the soldiers who went to war without so challenging the war then culpable for their participation in an illegal war?

I thought it had been definitely established over sixty years ago that "I was only obeying orders" was not a valid defense?

Von: Jes (and others) make the argument that Congress was misled. (Actually, they phrase it as the people were misled, but all that matters for these purposes is Congress -- we are talking only whether the law is legal under US law.) I don't think that's necessarily credible: Congress had virtually all the intelligence Bush had and, if they didn't speak up against the war, it was at worst out of political cowardice.

So, every Representative and Senator has identical access to the information the CIA supplies the President and the Vice President? I wasn't aware of that: it's not the case in the UK, where rank-and-file MPs do not have the same access to information from MI5 or MI6 that the Prime Minister may have.

Of course, by January 2003, anyone who cared to could know that Bush was lying the US into war via information readily available by Google. But that's rather different from getting to see the information that the CIA has, and therefore knowing for sure that Cheney and Bush and Rumsfeld are distorting it to make the case for war to Congress and to the people of the US. This is what you assert was true for Congress - that all the individual Representatives and Senators, Republican and Democratic, all had the same access to the information and knew that Bush & co were lying? If so, that's goes beyond political cowardice, right into treason.

So, Jes, to be clear, you believe that all soldiers who go to Iraq should be prosecuted for their participation in an illegal war?

"I also disagree with Katherine's assertion that war crimes carry lighter penalties that the 3-5 years Watada is likely to receive"

No, not in the abstract; I'm talking about the maximum sentence in the case of the Bagram detainees being beaten to death. Remember Dilawar, the innocent taxi driver whose legs were "pulpified"? Max. sentence 5 or 6 months. The killing of Abed Hamed Mowhoush? One warrant officer got a reprimand, a fine, and 60 days of confinement to his home, workplace, and church. To say nothing of lack of prosecutions by the CIA.

This isn't universal, there are cases where severe sentences are imposed, but they tend to be the exception.

"Society functions because it endows"

Society is not a thing. The government is not a thing. The military is not a thing.

Society is the dynamic consensus of individuals in communication.

Odd. My dictionary has them all listed as nouns.

First of all, an excellent post Andrew, and like many I wish you weren't going. I also wish no one was going.

Regarding the judgement of soldiers in regard to legal or illegal acts and orders. IIRC, my son was given a rather extensive listing of orders that would be considered illegal and if he followed them he would be guilty as well as the officer giving the orders. Andrew, you can probably speak to that issue.

Von, we may never know if Congress had all the same intelligence as the administration. At least some people in Congress have complained about not hearing about the tubes not being used for a nuclear program until after the war started.

I agree many were quiet or went along for political reasons. Since nobody who voted against the resolution went down to defeta, their fears were probably misguided.

I won't even attempt to speak to the legality of the war, but I don't think that is something that the members of the military can or should speak to, other than maybe at the highest levels. Most of the military are going to follow along with a major order to begin hostilities against a nation or group unless the commencement indicates a level of insanity on the part of the President who orders it (i.e. bombardment of Montreal).

The unfortunate consequence of having civilian control of the military (which is a principle I agree with) is that the civilian can order the military to do stupid things and the military has to follow through with the orders. The question is if that consequence is such that civilian control should not exist.

Considering the quality of some who can end up in that position (such as now) it might be tempting to say it shouldn't. But I don't think it should be given up.

One of the things this country has been gifted with in the past is President's who generally have listened to the military and taken advice from them. Unfortunately, I don't think this one has.

"...you believe that all soldiers who go to Iraq should be prosecuted for their participation in an illegal war?"

My understanding of Nurenmburg was that extra-national or extra-poltical responsibility was in practice directly correlated and proportional to rank.

I am not sure, under the UCMJ, if the JCS are in principle just soldiers as Andrew is a soldier, and not different *kinds* of soldiers. But in practice and under the precedents of Nuremberg they certainly are.

Of course, by January 2003, anyone who cared to could know that Bush was lying the US into war via information readily available by Google. But that's rather different from getting to see the information that the CIA has, and therefore knowing for sure that Cheney and Bush and Rumsfeld are distorting it to make the case for war to Congress and to the people of the US.

1. Leading members of congress, including the relevant committee heads of both parties, had access to virtually all, if not all, of the intelligence that Bush had access to. They had the obligation, if they believed Bush to be lying, to at least vote against the war and thereby signal to their colleagues their stance.

2. But you concede that this truly is a meaningless dispute because, according to you, any minimally-informed person with internet access could see that Bush was obviously lying. I have a relatively dim view of Congress, but even I think that they meet this standard. Accordingly, even if deception were grounds to void an act of Congress both automatically and nunc pro tunc -- and it's not* -- no deception occurred here. The war was perfectly legal, and Watada should still go to jail.

von

*Congress can, of course, reverse or rescind its laws, but I know of no policy that allows any body -- Court, congress, or individual soldier -- to void a purely political question regarding Congress' war powers.

"Odd. My dictionary has them all listed as nouns."

So are "person" and "Bob McManus" nouns. Umm, so are "agent" and "agency" nouns

No, not in the abstract; I'm talking about the maximum sentence in the case of the Bagram detainees being beaten to death. Remember Dilawar, the innocent taxi driver whose legs were "pulpified"? Max. sentence 5 or 6 months. The killing of Abed Hamed Mowhoush? One warrant officer got a reprimand, a fine, and 60 days of confinement to his home, workplace, and church.

OK, although it's not clear that these are war crimes in the formal sense, rather than simply crimes, a distinction that I admit is not much of a difference in these circumstances.

Von: Accordingly, even if deception were grounds to void an act of Congress both automatically and nunc pro tunc -- and it's not* -- no deception occurred here.

So, no deception occurred because everyone knew Bush was lying and just agreed to ignore it? Wow, Von, I've never heard you sound so like a lawyer before.

It was certainly possible for anyone with adequate Google skills to find out that Bush & Co were lying. A fortiori, it was all the more possible for Congresspeople to find out Bush & Co were lying. But to argue that because it was possible to find out Bush & Co were lying, that meant there was no deception involved, that's... really, really defense-lawyerish.

It is possible for a smart, cynical person to see through a con man. That does not mean the con man is not being deceptive, and it is not an adequate defense when the con man takes someone who is not smart or cynical enough.

Bob,

But at what level, then, are you going to grant them the authority to challenge a war's legality? I rank 1LT Watada by just a bit, so if he's got the authority, surely I do as well. And if I have that authority but choose not to use it, then I am responsible for that choice.

But let's say that we hold the authority at the combantant commander/JCS level (all four star positions, I believe). We then run into some serious issues with civilian control of the military. As I noted some time back, one reason Rumsfeld steamrollered the Pentagon's war plans was the Pentagon's reluctance to go to war in the Balkans during Kosovo and their use of inflated numbers and other delaying strategies to undermine the Clinton administration. If the JCS or a combatant commander decides he doesn't like a particular order by the CiNC, then he can basically ignore it and claim that he thinks it's illegal (an argument that would have withstood a lot more scrutiny in Kosovo than it does in Iraq). Even knowing that we can elect knuckleheads to high office, I am reluctant to give the military that degree of control over our foreign policy.

"...unless the commencement indicates a level of insanity on the part of the President who orders it (i.e. bombardment of Montreal). "

Relevant Section of the 25th Amendment:

"Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President"

I myself do not consider thismpletely adequate safeguard. Certainly if the military did not hesitate, the process would be too slow to save Montreal.

There are rumours that quasi-legal procedures were put in place during Nixon's Final Days.

"But at what level, then, are you going to grant them the authority to challenge a war's legality?"

None. No legal controlling authority. No real principles or general rules. Okay?

In practice, the JCS would probably bomb Iran if so ordered, and manage, somehow, to save Montreal.

In practice they would not be prosecuted for Teheran but might be for Montreal.

This is the world I live in. It ain't that bad.

"I might have used proper names; but if the spirit of it survives Prussia, --
my ambition and those names will be content; for they will have
achieved themselves fresher fields than Flanders." ...Wilfred Owen, unfinished preface to poems

I was really confused by the reference to Prussia here, but as I went to Wiki and looked up Schamfort, the idea of the General Staff, and for example the Prussian educational philosophy, I decided that Owen was referring to "Prussia" as an idea rather than a place or people.

"Prussian" is not an completely wicked adjective, we live under ideas developed by the Prussians to this day. I would write it up, but I assume Keegan or somebody has likely already done it.

If this seems off-topic, the professionalization of the military, the idea that it could be removed from politics, is a Prussian ideal. I think.

"Despite my disagreement with the war, having grown up an Army brat, I agree with a great many of your points here; and I have in the past shown little tolerance for Johnny-come-lately 'conscientious objectors' who only find their consciences when they're finally getting shot at. If you want to avoid going to war, the first step is not to join the Army."

Since Lt. Watada asked to be sent to Afghanistan, rather than Iraq, I'm missing the relevance of this point.

OCSteve: "He is bound to carry out all lawful orders, end of story. Until such time as the US declares the war to be unlawful, his movement orders are completely lawful."

May want to look into the events and history of the Nuremberg Tribunal, Steve. Relying on "I was only following legal orders" isn't, in fact, a defense in all cases. (Whether it applies to this case or not is, of course, what the case is about; I'd be surprised, to be sure, if -- assuming a new trial goes forward -- the Lt. were to be found non-guilty, but, then, the specific details matter.)

Relying on "I was only following legal orders" isn't, in fact, a defense in all cases.

Ummm...yes it is. 'I was only following orders' is not a defense. 'I was only following legal orders' is. That one word makes all the difference.

Congress gave President Bush the authorization to go to war; the war is legal.

This is disputed, AFAICT. Congress authorized Bush to use force in Iraq; that's technically different from a declaration of war.

Sorry, but, while I'm no lawyer, I find the discussion of international law here is a bit lacking. It is pretty much consensus that ScRes. 678 and 687 could not be invoked to justify the war in 2003. That's why the US pushed for 1441, in itself clearly not sufficient to go to war, which is why a further resolution was introduced and withdrawn once it was clear that it wouldn't be passed. Congress authorizing the CiC to go to war does not supersede the UN charter which, having been ratified, has become the law of the land under article 6 of the constitution. It thus not possible to artificially seperate US law and international law and any discussion regarding the legality of the war has to deal specifically with the UN charter.

Here is an interesting verdict by the one of the German courts on the matter, incidentally it was triggered by a case similar to the one currently in question.

"This is disputed, AFAICT. Congress authorized Bush to use force in Iraq; that's technically different from a declaration of war."

I'm not sure if it is technically different from a declaration of war, but in any case it is certainly enough of an authorization to bind soldiers to go.

Actually, if a statute conflicts with a treaty, courts follow the "last-in-time" rule: whichever was passed later, wins. I think the Iraq resolution is in the same category as a statute.

Out of curiosity, has anyone attempted to bring suit against the Bush (or Clinton) administration for taking the U.S. to war without UN approval?

Since Lt. Watada asked to be sent to Afghanistan, rather than Iraq, I'm missing the relevance of this point.

You don't get to choose your deployments, so what 1LT Watada requested is irrelevant.

Congress authorizing the CiC to go to war does not supersede the UN charter which, having been ratified, has become the law of the land under article 6 of the constitution.

No, on a thousand different grounds, including the one pointed out by Katherine. Indeed, the best way to get an internationalist guy like me to join the Black helicopter brigade would be to insist that the UN Charter constitutes US law eternally binding on US Citizens.

"That one word makes all the difference."

It made no difference whatever at Nuremberg. Honest. I know something about Nuremberg, and it didn't. Those under trial who were military officers consistently insisted they were following legal orders.

The fact is, what German courts said were legal orders, and what was said at Nuremberg about what were and weren't legal orders, differed.

U.S. courts -- in these sorts of cases, U.S. military courts, acting according to the UCMJ, rule on these cases as regards U.S. personnel, and control.

But one of the key points, if not the key point, of Nuremberg was that national courts aren't the last word.

Not that I'm expecting U.S. soldiers to be facing a Nuremberg, or the International Court of Justice, any time soon. But the principle that national courts aren't the last word was established by the U.S. government, speaking for what was then referred to as "the United Nations," even though that organization wasn't yet formalized.

"That one word makes all the difference."

And saying the word makes no difference at all. Obviously, the claim "I was only following legal orders" can be said of any illegal thing. What's relevant is what a court finds, not that someone says the magic word, of course, and as you know.

"You don't get to choose your deployments, so what 1LT Watada requested is irrelevant."

When the claim is that "I have in the past shown little tolerance for Johnny-come-lately 'conscientious objectors' who only find their consciences when they're finally getting shot at. If you want to avoid going to war, the first step is not to join the Army," yes, volunteering for Afghanistan is relevant, Von. It's helpful if you respond to the point at hand, not some other point you have in mind.

Andrew, I don't think "I was only following orders that were legal and binding under domestic law" is a universal defense...it's possible to have countries whose domestic laws permit, say, torture and genocide. This is the whole theory behind Nuremburg, the Pinochet prosecution, various war crimes trials of former African heads of state.

Needless to say, this doesn't make a criminal out of every single soldier who serves in a war that violates the UN charter. Does anyone seriously support that? Both stupid and wrong, I'd say.

I have to say, legally I think there's a better case that the Kosovo war was unlawful than the continuing occupation of Iraq. And a terrible, terrible precedent re: Iran. I would have to get straightened out on the chronology to say that confidently though.

I was referring strictly to American soldiers, Katherine. I make no claims to knowledge beyond that.

"Indeed, the best way to get an internationalist guy like me to join the Black helicopter brigade would be to insist that the UN Charter constitutes US law eternally binding on US Citizens."

Is the UN Charter any less U.S. law, or binding, than any other U.S. treaty obligation?

Incidentally.

Needless to say, this doesn't make a criminal out of every single soldier who serves in a war that violates the UN charter. Does anyone seriously support that?

Shouldn't think so.

"Needless to say, this doesn't make a criminal out of every single soldier who serves in a war that violates the UN charter. Does anyone seriously support that? Both stupid and wrong, I'd say."

You might be pushing it with 'every single soldier', but upthread we seem to be discussing that for soldiers at the level of Andrew or Watada, neither of whom are policy makers.

Now it could of course be argued that we shouldn't take bob seriously. :)

"I was referring strictly to American soldiers, Katherine. I make no claims to knowledge beyond that."

Nuremberg Principles:

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

[edit] Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

[...]

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

Pretty much all the relevant material is here.

I realize that I "can't be taken seriously," so you probably shouldn't "waste any more time on dealing with someone who appears interested in nothing more than twisting the facts to support his case," although I am unlikely start posting at Democratic Underground, nonetheless.

I'm sorry to hear that you were sick; good to know that you're better.

I think the key word in von's comment is "eternally", Gary. Like a statute, a treaty is binding but it can be superseded by other laws, and to the extent that it conflicts with the Constitution, the Constitution trumps.

Indeed, the best way to get an internationalist guy like me to join the Black helicopter brigade would be to insist that the UN Charter constitutes US law eternally binding on US Citizens.

Go on then, make it offical, "deratifie" the UN charter and while you're at it the Geneva conventions, tell the world that a US signature under an international treaty is not worth the paper it's written on and can be rescinded on a whim whenever congress feels like it. De facto the US is in breach already on several counts and doesn't seem to care a lot about international law anyways - so why the weaseling around.

For all I care, Cheney was right, the US shouldn't have gone through the UN at all, since the decision to go to war had been made in September 2002 already and the US would go ahead with it no matter what. Alas, instead they chose to make a mockery of international law and institutions, damaging both severly in the process.

Gary: May want to look into the events and history of the Nuremberg Tribunal, Steve. Relying on "I was only following legal orders" isn't, in fact, a defense in all cases.

That has kind of been beaten to death in this thread. It is not his place to decide for himself whether the war/occupation is lawful or not.

Article 92—Failure to obey order or regulation Explanation.

(1) Violation of or failure to obey a lawful general order or regulation.

(a) General orders or regulations are those orders or regulations generally applicable to an armed force which are properly published by the President or the Secretary of Defense, of Transportation, or of a military department, and those orders or regulations generally applicable to the command of the officer issuing them throughout the command or a particular subdivision thereof which are issued by:

(i) an officer having general court-martial jurisdiction;

(ii) a general or flag officer in command; or

(iii) a commander superior to (i) or (ii).

(b) A general order or regulation issued by a commander with authority under Article 92(1) retains its character as a general order or regulation when another officer takes command, until it expires by its own terms or is rescinded by separate action, even if it is issued by an officer who is a general or flag officer in command and command is assumed by another officer who is not a general or flag officer.

(c) A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders or for some other reason is beyond the authority of the official issuing it.

Soldiers are held to account for their individual behavior in battle, as an occupying power, etc. “Shoot that prisoner” is a clear case where the soldier would be expected to question the order. “Deploy to the front line” is not.

How many soldiers were tried at Nurnberg because they followed their orders to go into battle or guard a concentration camp? Zero. Nurnberg never questioned the fact that once hostilities are engaged a country has the right to order their troops to participate in those hospitalities. Certainly soldiers are accountable for their actions during those hostilities.

But anyone trying to make the case that his movement order was not a lawful order is just grasping at straws. He is lucky he pleaded out the really serious charges – he could be standing trial for sedition.

I'm afraid I have to side with OCSteve, Sebasatian and von... I take a dim view of trying to combat a strategy-level decision on such a low level. I'm not sure I want a military that would allow such actions.

"That has kind of been beaten to death in this thread. It is not his place to decide for himself whether the war/occupation is lawful or not."

It's up to every individual to make moral choices for themself.

You're welcome to disagree.

"I take a dim view of trying to combat a strategy-level decision on such a low level. I'm not sure I want a military that would allow such actions."

I expect it's unlikely they will. Neither would I expect a military to encourage questioning of orders.

I do approve of people remembering that each of us is responsible for our own moral choices, though.

How many soldiers were tried at Nurnberg because they followed their orders to go into battle or guard a concentration camp? Zero.

While this may be literally true in the sense that they were not tried at Nuremburg, plenty of German soldiers have faced criminal sanction and persecution simply for having been posted at one of the camps.

Catsy: While this may be literally true in the sense that they were not tried at Nuremburg, plenty of German soldiers have faced criminal sanction and persecution simply for having been posted at one of the camps.

Point taken. Strike that part.

Excellent post, Andrew.

I think, at times, that it's defensible and even salutary for the occasional Lt. Watada to take his stand and take his lumps to express opposition to this very screwed-up war. But taking the lumps is a key part of the whole thing; the U.S. government can't allow its soldiers to reach their own decisions on what is, at worst, an arguable question of law far above an O-2's pay grade. The Army seems to be handling the case entirely properly, and whatever the moral status of Lt. Watada's disobedience may be, it's entirely right and proper that he be convicted and take the legal consequences of his acts.

"it's entirely right and proper that he be convicted and take the legal consequences of his acts."

I am always careful about the phrasing here, in terms of "accepting the consequences." From the point of view of the gov't/militarty, it is right that they should try, convict if guilty, and punish Watada.

I do not think it is morally necessary that Watada, if he believes his action is morally correct,to forgo a defense, plead guilty, and throw himself on the mercy. There were some CO's during the 60s who did exactly that. But I can certainly imagine circumstances where Watada could think that the charges could be legitimately challenged.

Watada is not a CO. A CO isn't willing to fight at all. Watada is willing to go to Afghanistan but not to Iraq, therefore he does not qualify for CO status.

I don't see any way for Watada to escape conviction, even were he to be permitted to present his defense that the war in Iraq is illegal. I see no way that a military court martial is going to declare that the war in Iraq is illegal, nor do I think it would be at all appropriate for them to do so, as that would once again be inverting the military-civilian relationship.

And, yes, bob, I know that your position is different. I am reading your stuff, rest assured. ;) Just throwing my opinion into the mix.

It Was a crime at the Time

Jim Henley reluctantly helps Andrew's arguments, as I read Henley

"Watada is not a CO."

Din't say he was. He believes the war is illegal, he very likely is wrong.

"Watada is not being asked to go back in time and participate in the 2003 invasion but to join a UN-authorized expeditionary force in the present day.

More cynically, there appears to be no international institution with the jurisdiction to declare the US occupation illegal and the gumption to make it stick." ...Jim Henley. link above

It may be the Underground Railroad had not a single legal leg to stand on, a single reasonable legal argument against Dred Scott and Fugitive Slave Act. Nevertheless, I do not think their stance of civil disobedience also morally required that they 'fess their crimes and do the time. Some people, I believe Thoreau himself, believed that doing the the time was an essential part of the civil disobedience.

I just ain't got much respect for the Law.

I been playing where I don't belong for years on this blog,, watching Katherine and Sebastien argue textualism vs realism vs whatever.

I basically try to understand what we are saying when we say the President's signng statements are "legal" or "illegal" and what those descriptions can possibly mean. Even were SCOTUS to jump in, I don't quite know that Marshall was correct in Marbury, and that the President has no interpretative authority. Review just seems to have worked pretty much ok.

"Process liberalism" just strikes me as a subset of "might makes right" and Mao's saying about who owns the guns. The mob is not morally privileged.

Whatever. It is probably mature and responsible to pick some means of justification and stick to it.

I don't see any way for Watada to escape conviction

Double jeopardy?

Bob McM: This is the world I live in. It ain't that bad.

For your kind.

Sucks to be anything but North American, though.

The logical way of events should look somewhat like this:
1.A soldiers gets an order
2.The soldier concludes that
a) the order is illegal
OR
b) obeying the order would involve illegal acts
OR
c) obeying the order would be in support of illegal acts by others (Watada's claim)
3. the soldier challenges the order on those reasons
4. the soldier's reasons are rejected by authorities and the order repeated
5. the soldier refuses to obey the order
6. the soldier is charged for not obeying the repeated order
7.a court either finds the soldier's reasons to be valid (exoneration) or not (conviction)
8.in case of conviction at a later time it is found that the soldier was right anyway.
9. In that case the soldier is to be exonerated and compensated for his/her hardship
10.The authorities that gave the illegal order are charged (and the first court too, if judicial misconduct is found)

In the Watada case we are currently at stage 7

Does it make a difference that he volonteered for the army?

I am very supportive of the refuseniks in Israel, who refuse to serve in the occupied territories. Not to muddle the thread by bringing the Isreal/Palestine controversy in, but because there are simularities in the situation.

I agree, Andrew, that having the military get involved in civilian politics is a very Bad Thing. Unfortunately, since World War II we've had a very large standing army (& military-industrial complex), which mean the military is automatically involved in civilian politics (=money). This is one of the big reasons the Founding Dudes were opposed to standing armies, and from that POV we're all in pretty serious violation of the Constitution.

It has been my impression over the decades that the US military's deference to civilian authority comes from an unarticulated deal: the military will defer to the civilians, as long as the civilians don't cut the military's budget. It's also been my impression that the military's decreased willingness to obey the orders of a Democratic C-in-C (e.g. Bosnia) is fueled by the perception that Democrats are willing to cut military budgets, which translates to "don't respect the military". Not that they *do* cut military budgets, really, but they fuss more about writing blank checks.

Am I saying that the military is motivated solely by monetary concerns? No, but it is unrealistic to expect anyone in our society *not* to be sensitive to money.

The refuseniks look like a textbook example of what we are talking about to me. Good idea to bring it up!

Hartmut is right.

Andrew is wrong:
If the JCS or a combatant commander decides he doesn't like a particular order by the CiNC, then he can basically ignore it and claim that he thinks it's illegal (an argument that would have withstood a lot more scrutiny in Kosovo than it does in Iraq).

because he thinks the issue would stop there. As Hartmut rightly says, the next stop is a court, and a trial for wilful disobedience of orders - a charge for which "the orders were illegal" is a good defence.

Waging aggressive war under orders was not a crime under international law in 1939 - which is why the German General Staff were not convicted of it in 1946 - but it certainly is now.

It is really unnerving me to see so many people - including actual serving US soldiers! - defending the "only following orders" argument. This would never happen in the British Army. There, Law of Armed Conflict is an essential part of the training for every soldier, and they are required to requalify every year - just like they are required to requalify with their personal weapon, first aid skills and so on. If a British private came out with the arguments that Sebastian, Andrew and OCSteve have produced, he would fail his requalification, because it is drummed into them, again and again, that it is your duty to refuse to obey an illegal order, and you will not be punished for doing so. It doesn't matter if the Queen, the Chief of the Defence Staff, the Lord Chief Justice, the Archbishop of Canterbury, the Prime Minister, your battalion CO and the resurrected zombie corpse of the Duke of Wellington all walk (or lurch) over to your shell scrape and say "Private Smith, you WILL burn that house": your duty is to refuse.

Saying "I don't think we should give lieutenants the authority to decide what's legal" is just wrong. We all of us, as mentally competent adults, already have the authority (and the duty) to decide whether our actions are legal. Our decisions are then subject to review by the courts.

(Technically, under international law, every soldier who participates in an illegal war is indeed a criminal. As a matter of practical law, culpability tends to accumulate at the top. In their defence, most ordinary soldiers could probably argue that they believed the war to be legal based on what they were told. Making such a defence would be more difficult for, say the Chief of Staff.)

If military interference with civilian control is limited to "not shooting when ordered", I'd be inclined to give it a thought (provided it is not done for selfish reasons).
The real trouble begins when the military will not stop shooting or start it without being ordered by the civilian leadership.

"it is your duty to refuse to obey an illegal order, and you will not be punished for doing so."

But he wasn't refusing an illegal order.

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