Third, I earlier made a distinction between levels of authority and what the Soldier's individual responsibilities are. 1LT Watada bears no responsibility for the initiation of hostilities as it is beyond his "moral compass" - e.g., within his authority to control. The burden and guilt for that decision is at the "national command authority." Now that we are in hostilities, however, that question is irrelevant to his deployment (which is what Judge Head ruled in the case). I do not believe he has the legal or moral authority to refuse deployment, which is wholly different than actions he might actually take once he is actually on the ground.
One point that I think I have not articulately made before is this, and it is critical to my position: My oath is to obey the Constitution and those appointed over me. Part of that, in my view, is that the military is subordinate to civilian authority, and the President, whether I like him or not or agree with his policy decisions, is the Commander in Chief appointed over me. I cannot, consistent with my responsibilities, simply decide on my own which orders I will obey or disobey unless they are specifically precluded by a higher authority. Specifically, the Constitution itself or the Geneva Conventions as made applicable through it. For example, if I were ordered to execute or torture prisoners, I would have the legal and moral authority to refuse that order, and I would have no defense of "following superior orders" if I did not. That decision would be within my "moral compass," and if I refused it, I would have a legal justification for my action. In my view, the decision to deploy is not one of those instances. Going to Iraq, being in Iraq is neither legally nor morally proscribed. What I do while I am there will be guided by my own conscience.
Yes, I recall that first part now, thanks. Incidentally, does the fact that we are "in hostilities" really make any difference, with respect to his refusal to deploy?
In any event, I see your point - following orders is absolutely essential, as long as they do not violate the oath... and the act of deploying itself is not unconstitutional. For that matter, neither is going out on patrol, or shooting someone in self-defense. I wonder at what point could any soldier's refusal to obey an order be constitutionally (legally) defensible (assuming the hypothetical of an illegal war)?
You gave a good example of an order to torture; but what of an ordinary act of war, such as commandeering a house, or calling in an airstrike perhaps? I don't know where the line is drawn, but I'm trying to think of things that are defensible in war, and indefensible without.
Of course, wouldn't it be a failure of command to send a soldier out whom is known to command to have conflicting ideas over what may be lawful and what may not?
Now, as to who should be charged and how that should be carried out I cannot express an opinion. It is not that I don't have one, I do, but my current position precludes me from expressing it. I will note, however, that legal precedents regarding those decisions do exist, and include trial before a properly constituted international tribunal (a la
Nuremberg), and
Impeachment by the Congress or trial by an
Article III court constituted under the United States Constitution, or under the
Uniform Code of Military Justice as is appropriate to the defendant's status.
Sorry for waxing so philosophic. It is a product of my profession and personality. Was that clearer?
Yes, absolutely. I also appreciate that you know you are walking a careful line and are still willing to go there.
