Capitol Hill Blue Forums Hot Topics & Breaking News News Lieutenant faces court martial for opposing Iraq war

Yes, John, I suspect there are a number of points I have overlooked! There are a lot of complexities, at least for me, wrapped up in the questions raised by 1LT Watada's actions, position, and trial. To reduce the complexity, at least somewhat, I have tried to distinguish between the practical, moral and legal aspects of them. Your questions even further discriminate on levels of complicity. They are very relevant to the general scope of the thread, however. Let me have a go (and I apologize in advance for being long-winded):

You asked, "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)?" That, truly, is the overarching question, isn't it? As you note, I did give the example of torture, which is perhaps the simplest (in a black and white sense) example I could have provided. Your follow-up question makes for finer distinctions: "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." These get into the nitty-gritty of the law of war. I see this in three parts: First, the overall "status" of the state of war; second, the justification for a particular action; and third, the division of responsibility from a moral and legal standpoint.

The first point is addressed, somewhat, in my last post. What is relevant is the existence of a state of conflict or belligerancy. As you say, "things that are defensible in war, and indefensible without." These "ordinary act of war" fall on the individual Soldier's shoulders to a great extent, although the national command authority bears overall responsibility for the state of belligerancy. The overall responsibility for everything that follows therefore remains with the highest authority. There are three basic principles that govern the acts of every belligerant, however, and every act that they undertake. These are:
Military Necessity;
Discrimination or Distinction; and
Proportionality,
that apply to every Soldier whenever a Soldier "pulls the trigger."

The first point gets directly to your question, and that is that some things are authorized in war that are prohibited otherwise. These things fall under the general heading of "military necessity," and that is something that must be done to accomplish some military purpose - gaining the high ground, suppressing offensive fire, rooting out the enemy, controlling territory. It is the "why" of military operations. This may allow displacement of civilians (as much for their own protection as anything), destruction of "dangerous" property (which may include houses in some instances, if they are being used for operational purposes), retention of property, killing in self-defense, and other acts which may be violent in nature. Once you have a reason, however, that is not the end of the analysis.

The next step is discrimination or distinction. What is a valid target? Basically, things that can hurt you. Combatants (people that are shooting at you), and property that is a direct threat, as opposed to civilian objects and civilians who are "nonbelligerants." This can be very difficult to determine, especially with an enemy who hide among civilians and wears civilian clothing (which is, by the way, itself a war crime). Every Soldier has an obligation to do their best to sort the targets from non-targets (the laws of war call them "protected persons, places, or things") as best they can. The concept of "total war" no longer exists in the lexicon of modern warfare. (The civil wars of Liberia, Eritrea, Rwanda, Sudan, etc., not really constituting "modern" wars.)

The last issue, proportionality, really then gets to "how much" force you can use, and this is a question of "reasonableness under the circumstances." The incidents with Blackwater are a good example of the argument that they used "excessive" and "unnecessary" force - shooting indiscriminately and with overwhelming firepower. This is where you get into the question of "collateral effects." Collateral effects (destruction, injury, or death) are always to innocent civilians and their property. War is never conducted without collateral effects, and the primary argument regarding an "illegal war" is that all of the damage is collateral, i.e., without justification. For the individual Soldier, however, it is a balancing act: "How important is the target (how dangerous)" versus "How much damage am I going to do?" The more dangerous the target, the more "collateral effects" are acceptable under international law. And now I am finally going to get to the core of your question as it applies to 1LT Watada, and your last question, "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?"

As you noted, and I agree, "the act of deploying itself is not unconstitutional. For that matter, neither is going out on patrol, or shooting someone in self-defense." These acts, if prohibited, are attributed to the controlling power and not the individual Soldier. That is the crux of Judge Head's determination in the Court Martial, and my previous discussion regarding "moral compass." The individual Soldier has what is called "combatant immunity" - that is, he is not legally responsible for acts that he personally undertakes that are within the law of war. This may include destruction of property and killing of individuals, consistent with the three basic rules of necessity, discrimination and proportionality. (Moral responsibility, of course, gets to the matter of conscience, which I will try to address shortly.) This is where 1LT Watada's legal defense goes off the rails. He was never asked to do anything that was outside of his obligation as a Soldier and for which he would have placed himself in legal jeopardy. (It is the same basic principle as when someone invokes their Fifth Amendment right not to testify against themselves. If they are granted immunity for their testimony, i.e., they cannot be prosecuted for anything they testify about, they can be compelled to testify - because they are not in legal jeopardy.)

If it came to the point, while in theater, that 1LT Watada had to request an air or artillery strike, order that a door be broken down, require his troops to open fire, or commit any other "act of war," he would be governed by the same rules of necessity, discrimination and proportionality. You ask, "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?" Yes, but... no. What I want him to do is to use his own judgment on the field of battle to accomplish his mission and do it within the strictures of the law of war. Indeed, I want officers and leaders in theater who take these principles very seriously, as 1LT Watada claims to, because they are the very leaders who will use restraint, and take care to keep their troops away from the "gray areas" that occur in the "fog of war." As long as he is comporting himself in honor and according to those principles, he does not have "conflicting ideas about what may be lawful and what may not." On the other hand, if he is refusing to carry out orders that are on their face lawful within the meaning of the law of war, he would be a danger to his own troops and subject to Court Martial for refusing lawful orders. Which is, of course, exactly where we are today.

And that gets me full circle back to the point that I made before: 1LT Watada can refuse to be a party to what he deems to be an "unjust" war as a matter of conscience. It is just that he should accept the legal consequences for that decision, and that is something he doesn't seem to be willing to do. I have, as Stereoman has previously noted, made disparaging remarks about 1LT Watada's motivations. It is entirely possible that I am wrong, and that his motivations are pure. Even if that is the case, however, he continues to bear legal responsibility for his failure as an officer and Soldier. The Court Martial should go forward, and the honorable thing would be for him to accept the consequences of his decision.