Army Lieut. Ehren Watada, based at Fort Lewis, just south of Seattle, said he refused to go to war with his unit last June because he had come to the conclusion thatthe war in Iraq is illegal. In conversations with his superiors, in media interview and at the court-martial this week he contended that his Army oath required him not to follow what he called an "illegal order" to deploy.
I absolutely love his defense. When I was in the military, one of the things drummed into us, this was in the days when the army was still coming to terms with what happened at places like Mai Lai, was that you had to follow orders unless they were illegal. You were OBLIGATED to refuse to agree to follow illegal orders. Period. No exceptions. If the best information you had was that an order was illegal, you are required to ignore it.
Watada, 28, faced charges both for failing to deploy and for making public statements about the war that the Army considered "conduct unbecoming an officer." In a pretrial stipulation as part of an agreement to lower the number charges against him,Watada had admitted his failure to deploy. He did not admit guilt on the charge, however, because he felt his failure to deploy had been justified by the war's alleged illegality.
Stammering at points in his arguments with the judge and looking extremely frustrated, Army prosecutor Capt Scott Van Sweringen asked for the mistrial after Judge Head, having personally questioned Watada about the stipulation, ruled that he was going to reject the agreement and tell the jurors that is should be disregarded. The judge himself seemed to urge a mistrial request at that point, saying of his direction to the jurors: "How do you un-ring that bell?"
The gist of what is going on is this. Watada acknowledges his failure to deploy. His entire argument is that he is required to ignore the order because the Iraq war is illegal, and he can not follow illegal orders. The prosecution of course does not want him to be able to use that defense, and the judge believes that he does not have the jurisdiction to rule on this matter in this forum.
We are in a war of aggression, of choice, with no UN mandate, with no formal declaration of war by the congress. A rational argument of course can be made that this war is illegal. I encourage every soldier right now to examine their conscience, way the legal risks they face by refusing to serve, against the moral risks as well as the physical risks they face by deploying and decide if they want to follow Lt. Watada's lead.
If you genuinely believe this war is illegal, you are REQUIRED to disobey an order to be a part of it. The onus is on our government to prove you wrong through the proper legal channels. If the government gets legal justification for this war, disproving your argument, you at that point are REQUIRED to deploy, or face the consequences of your actions including imprisonment.
The lawyer for Lt. Watada speculates that they will not retry him. The government does not want to have to make the argument that the war is legal because it's not a sure thing. However, if enough troops decide to follow their conscience and after intellectually coming to the realization that this war is illegal, and they refuse to deploy. This issue will be addressed, or we will leave for lack of troops available on the ground.
As a veteran, this is a tough issue for me. I signed a contract, and while I was in the Army, and the Inactive Reserves, if congress declared war, and I was given orders, they would have been followed. If the President got a half assed resolution, the UN refused to endorse it, and I was told to invade Ottowa because they had Maple Syrup of mass destruction or something, it would have been my duty to find out to the best of my ability if the war was legal or not.
This btw is an entirely different issue than consciencious objector status. Although it looks the same, the motivations can be quite different. I am reminded of all those brave young kids who signed up to fight Osama in Afghanistan, and instead got stuck in a civil war in Iraq.
Here is the relevant passage from the Uniform Code of Military Justice
In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ."