The court martial of United States Army Lieutenant Ehren Watada begins today. The charges Watada faces, in military/legalistic lingo, are “missing movements” and “conduct unbecoming an officer.” In plain English, he is accused of refusing to deploy to Iraq and criticizing the war.
Watada has said, repeatedly, that he believes the war in Iraq is illegal, and as such he is not only entitled to refuse to serve in it, but obligated. He has requested that he be allowed to serve in Afghanistan or somewhere else, but not in Iraq.
I am no military lawyer or even an expert of military justice (and no, despite the oft-repeated joke, “military justice” is NOT an oxymoron), but I have read up a bit about how the Uniform Code of Military Justice addresses the concept of “illegal orders” — and that is the crux of Watada’s defense.
In the military, discipline is an absolute requirement. Service members MUST obey the orders of their superiors, or the organization itself will crumble. It is, literally, the cornerstone of the military.
However, the requirement is not that they obey all orders, but all LEGAL orders. This has always been the case, but was reinforced after World War II and the war crimes trials thereafter. “I was just following orders,” as David Gerrold put it, is not a defense, but an indictment. The moral duty and obligation of service members to refuse illegal orders was literally graven in stone, as many former German and Japanese service members found that argument ended at the end of a noose, or in front of a firing squad.
But the bar for an “illegal” order is very, very high. It has to be something that is, on its face, clearly and flagrantly a crime. “Execute those prisoners.” “Round up the townsfolk and shoot them.” “Burn down every building in that village.” “Shoot the private next to you.” “Take down the US flag and run up this Nazi one.” “Bomb the headquarters of CBS.”
But Watada’s orders were nowhere near so clear-cut. “Report with the rest of your unit, prepared to deploy to Iraq for duties for the foreseeable future.”
Watada says that the war is illegal. But he’s literally in no position to make that argument.
The war is being fought under a legally-passed Act Of Congress, called an Authorization for Use of Military Force. The Constitution grants Congress the sole power to declare war, and as such only Congress can clearly state whether or not it intended the AUMF to amount to a declaration of war or not. And considering that their tangible actions have been to reinforce the notion that they did, indeed, intend such, Watada’s argument falls flat on its face.
If Congress wished to make the war illegal, it has numerous options available to it. It could repeal the AUMF. It could pass a new law saying that the AUMF has been completed and is no longer valid. Or it could declare that an AUMF is not to be considered equivalent to a declaration of war.
If Congress were to take such action, then — and only then — would the war in Iraq be considered equal. But only Congress can take such action — not an Army 1st Lieutenant.
Lt. Watada is, much like former US Navy Petty Officer Pablo Paredes, just another tool in the anti-war movement. And like any tool, Watada will be used by them to suit their own purposes. Once his usefulness is over, he will be discarded, left to face the consequences of the actions they egged him to all on his own. Watada (and any others considering following their lead) should read this letter by a Naval Reserve officer who’s been deployed to the Middle East at least a couple of times.
Lt. Watada volunteered for service after the United States invaded Iraq. He, of his own free will and of his own volition, agreed to serve in the United States Army and pledged to obey the lawful orders of his superiors for the duration of his service.
And then he refused, putting his own political beliefs above his word of honor.
Lt. Watada faces a maximum sentence of four years in military prison, followed by a dishonorable discharge. I hope he thinks it’s worth it.