bigmacbear (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
bigmacbear) wrote2007-02-06 08:33 pm
bigmacbear) wrote2007-02-06 08:33 pm
The Sad Case Of Lt. Watada
I woke this morning to Ken Schram on KOMO 1000 radio stating his opinion of the Ehren Watada case, now being tried before a court-martial at Fort Lewis, WA. The gist of the story is that Lt. Watada refused to deploy to Iraq on the grounds that the war there is in violation of the US Constitution and international law.
Mr. Schram pointed out that Lt. Watada "enlisted in the military after the invasion. He knew what he was getting into." Therefore he "deserves what I strongly suspect the military will give him: A dishonorable discharge and a few years to ponder his navel while in federal prison."
Lt. Watada came to believe that the war in Iraq was illegal, and that it was therefore his duty to disobey his orders to deploy there, in accordance with the Nuremberg Principles. Specifically, in my reading of the cited page two points leap to mind as being the whole of Lt. Watada's defense.
Principle VI reads, in part:
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
This looks like grounds for a clear indictment of George II, and Kofi Annan has said as much in a public statement. But the kicker for Lt. Watada and all others similarly situated is this, 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.
The problem with this court-martial is that this entire defense has been foreclosed by the judge, stating that Lt. Watada is not allowed to argue this point or any other theory by which the war itself is judged to be illegal. In a civilian court this sort of ruling would be instantly appealed on the grounds that it was a violation of the accused's right to due process under the Fourteenth Amendment of the Constitution. Of course, that means the verdict in this case is now arguably a foregone conclusion; Mr. Schram certainly thinks so.
Another aspect of this case is that several of the charges stem from public statements Lt. Watada made while in uniform -- statements which could never be used against him in a civilian court based on his First Amendment right to free speech.
The crowning irony is that members of the military are expected to fight and perhaps die to preserve our Constitutional rights, including the rights of free speech and due process, but under the parallel system of military justice they themselves are, quite intentionally, denied those very rights.
But the dirty little secret here is that it is probably not possible for a court-martial to reach the conclusion that a particular war is illegal, even if it were to hear the arguments in full and give them the due process they deserve. And why the hell not? Because a court-martial is not a true court, being constituted under the Executive Branch rather than the Judicial Branch. No matter how diligent the participants are to avoid "undue command influence", and no matter what the actual Uniform Code of Military Justice says, one order from the very Commander-In-Chief who ordered the war in the first place could make the entire trial a moot point, and everyone involved knows that.
Groucho Marx once said that "military justice is to justice as military music is to music". I think, more to the point, that military justice is, like military intelligence, an oxymoron -- along the lines of "jumbo shrimp" but with far deadlier consequences. Every military tribunal and every court-martial has the same fatal flaw.
Now for Lt. Watada personally, we have a situation worthy of another military term that has entered the national consciousness through the eponymous book: Catch-22. In his case, the choice is whether to disobey his President (indirectly via the chain of command) or international law. Most folks in his situation have chosen the latter; he, on principle, has chosen the former.
The essence of this Catch-22 is: neither choice is right, and neither choice is without punishment. In other words, it is a no-win situation. From a practical standpoint, however, the likelihood of officers of the level of Lt. Watada ever coming before an international war-crimes tribunal to be called to account for their individual violations of international law is in my opinion infinitesimal, as long as George II avoids being hauled before such a tribunal himself. And with the belligerent attitude the US government has displayed toward the International Criminal Court, that could be a long time.
So this entire spectacle is doomed to futility, and Lt. Watada is going to be punished mightily for even bringing the subject up. I'm of two minds whether that was noble (as the folks on Air America, for whom I have the utmost respect, seem to think) or merely stupid (as Mr. Schram obviously thinks).
Whoever is right, this miscarriage of justice in the making -- or perhaps I should call it an outright abortion -- is going to be painful to watch. Enough said.
Mr. Schram pointed out that Lt. Watada "enlisted in the military after the invasion. He knew what he was getting into." Therefore he "deserves what I strongly suspect the military will give him: A dishonorable discharge and a few years to ponder his navel while in federal prison."
Lt. Watada came to believe that the war in Iraq was illegal, and that it was therefore his duty to disobey his orders to deploy there, in accordance with the Nuremberg Principles. Specifically, in my reading of the cited page two points leap to mind as being the whole of Lt. Watada's defense.
Principle VI reads, in part:
The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
This looks like grounds for a clear indictment of George II, and Kofi Annan has said as much in a public statement. But the kicker for Lt. Watada and all others similarly situated is this, 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.
The problem with this court-martial is that this entire defense has been foreclosed by the judge, stating that Lt. Watada is not allowed to argue this point or any other theory by which the war itself is judged to be illegal. In a civilian court this sort of ruling would be instantly appealed on the grounds that it was a violation of the accused's right to due process under the Fourteenth Amendment of the Constitution. Of course, that means the verdict in this case is now arguably a foregone conclusion; Mr. Schram certainly thinks so.
Another aspect of this case is that several of the charges stem from public statements Lt. Watada made while in uniform -- statements which could never be used against him in a civilian court based on his First Amendment right to free speech.
The crowning irony is that members of the military are expected to fight and perhaps die to preserve our Constitutional rights, including the rights of free speech and due process, but under the parallel system of military justice they themselves are, quite intentionally, denied those very rights.
But the dirty little secret here is that it is probably not possible for a court-martial to reach the conclusion that a particular war is illegal, even if it were to hear the arguments in full and give them the due process they deserve. And why the hell not? Because a court-martial is not a true court, being constituted under the Executive Branch rather than the Judicial Branch. No matter how diligent the participants are to avoid "undue command influence", and no matter what the actual Uniform Code of Military Justice says, one order from the very Commander-In-Chief who ordered the war in the first place could make the entire trial a moot point, and everyone involved knows that.
Groucho Marx once said that "military justice is to justice as military music is to music". I think, more to the point, that military justice is, like military intelligence, an oxymoron -- along the lines of "jumbo shrimp" but with far deadlier consequences. Every military tribunal and every court-martial has the same fatal flaw.
Now for Lt. Watada personally, we have a situation worthy of another military term that has entered the national consciousness through the eponymous book: Catch-22. In his case, the choice is whether to disobey his President (indirectly via the chain of command) or international law. Most folks in his situation have chosen the latter; he, on principle, has chosen the former.
The essence of this Catch-22 is: neither choice is right, and neither choice is without punishment. In other words, it is a no-win situation. From a practical standpoint, however, the likelihood of officers of the level of Lt. Watada ever coming before an international war-crimes tribunal to be called to account for their individual violations of international law is in my opinion infinitesimal, as long as George II avoids being hauled before such a tribunal himself. And with the belligerent attitude the US government has displayed toward the International Criminal Court, that could be a long time.
So this entire spectacle is doomed to futility, and Lt. Watada is going to be punished mightily for even bringing the subject up. I'm of two minds whether that was noble (as the folks on Air America, for whom I have the utmost respect, seem to think) or merely stupid (as Mr. Schram obviously thinks).
Whoever is right, this miscarriage of justice in the making -- or perhaps I should call it an outright abortion -- is going to be painful to watch. Enough said.
no subject
International Law
Much as I disagree with our role in Iraq (all of it, from 2002 onwards) I don't agree with Lt. Watada. He joined the army and agreed to the conditions of his enlistment. He's not being asked to round up Iraqi's into concentration camps for euthanasia. He's not being asked to destroy villages, rape women, kill people of a particular ethnic, religious or racial type. He's being asked to serve as a member of a pseudo police force in Iraq.
I think that the US invasion in Iraq was a breach of international comity on our part. An act for which we should have been condemned by the UN and shunned by the rest of the world. China should have stopped lending the USA money until we agreed to pull out of Iraq and other nations should have embargoed us, etc.
But our soldiers don't take an oath to serve the United Nations. They take an oath to serve their country, regardless of whether the conflict that their country is embroiled in is based on sound or unsound premises.
Re: International Law
It was not so until very recently, but there is now a permanent court to try such cases, the ICC -- but the US is doing its damnedest to disavow the very existence of that court, much less its jurisdiction with respect to US persons. That's why I said the chances of Lt. Watada's ever being prosecuted on such charges were infinitesimal.
I recognized as I wrote that it's altogether probable that even taken at face value, the argument proffered by Lt. Watada will not serve to justify his actions. I just think he should have been allowed to make his case, such as it is, and have it shot down fair and square in court (as, for the reasons you've laid out, it almost certainly must be) rather than have it foreclosed from the beginning.
Perhaps that is why the case was stopped today by a ruling of mistrial -- basically, he conceded every element of the offense in the mistaken belief he would be allowed to argue on the basis of the Nuremberg Principles that he was justified in doing so, and when the judge foreclosed that argument there was nothing left to try.
I think we're in agreement on more than is apparent at first glance. I just haven't decided whether this case is a noble exercise in futility or just a stupid stunt.