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

Thanks for your reply, Ron. And for your willingness to give Lt. Watada the benefit of the doubt.

From what you have said about SPC. New, I would concede that his crisis of conscience had equal validity, and that to my mind it makes perfect sense to offer alternative duty, rather than punishing the man.

Interestingly, in reviewing the facts of the case, I discovered that I was mistaken about the chronology of his actions, Ron, and that what you suggest is exactly what he did.

Not sure what you mean by that, Ron. Could you elucidate?

I think I want to address a couple of specific points.

First, the Army put a great deal of money and effort into training these individuals, in particular 1LT Watada. In his case, simply resigning was never a viable option (which he was well aware of at the time) because he had what is called a "Mandatory Service Obligation" and a commitment for at least 5 more years of service.

Second, I would be greatly disturbed if it became de rigueur for individual service members to "choose" whether they would deploy with their unit of assignment. Like it or not (and I DON'T like it), we are engaged in hostilities. At times like those accommodating particular desires of individual service members is neither practical nor desirable. Just today the Army Chief of Staff noted that the Army is broken and we don't have enough troops as it is. How could we possibly limit our options by allowing fully trained and qualified Soldiers to simply choose which operation they wanted to be involved in? I've volunteered twice for deployment, and I'm still here because that's where the Army needs me. If it were the other way around, I could accept that too.

The services aren't normally into allowing a menu-selection when orders are given. If New and Watada should have been given the choice, why not anyone who just happens to be having a bout of colic with an assignment?

Not sure what you mean by that, Ron. Could you elucidate? [/quote]
I gave examples here in my reply to NWP. See the second and third paras.

NW Ponderer similarly belittled Lt. Watada's objections with his post about "it's too hot today, so I think I'll sit this one out" post.

Looking beyond the disparagement, however, there is a legitimate question here: by what standards should military personnel be excused from a given type of service on moral or intellectual grounds? At one time, let us not forget, as recently as World War One, draftees in the US were not excused even on spiritual grounds from serving in the military, and were instead imprisoned and often mistreated. The bar is still high for attaining CO status after entering the military. But in the case of a moral (Lt. Watada) or intellectual (SPC New) objection to a specific conflict, the bar is nonexistent.

If a soldier becomes convinced, through concerted study and reflection, that s/he will essentially become either a murderer or an accessory to murder by serving in a combat zone, why should that soldier be punished? Except, of course, the obvious reason: allowing the soldier a "necessity" defense is tantamount to admitting the possibility that the conflict is illegitimate.

NWP, I see you have a lot of questions to answer! I'm sure you realize that is because even those who take the opposite position to yours, rely on you for an informed analysis of the situation from your perspective.

In the midst of all these questions, perhaps you overlooked my 'follow-ups', which it seems some other people are getting to as well - I will re-quote the pertinent part of my last post:


If you can answer these questions, I think it may go a long way towards illuminating the points of agreement and disagreement amongst many of us.

Thanks,
-John

With respect, Steve, you have once again misconstrued my previous comment. I was making the reductio ad absurdum argument that it is very difficult to draw lines about what is "acceptable" beyond that specifically within the concept of conscientious objection. Once someone has agreed to put on the uniform as a combatant they are, with the exceptions I have noted previously, unable to pick and choose where that service might take place. Even at my level I cannot take responsibility for the decisions of those appointed over me.

One concept that I think has never been sufficiently articulated (although I have tried, in my discussion "moral compass") is this:

There is a difference between initiation of hostilities and being in a belligerancy.

Initiation occurs at a particular point in time; a belligerancy is the ongoing state of conflict. This concept is important to understand that there is really no such thing as an "illegal war" under international law. There is an "act of aggression" - which goes to initiation of the conflict. Only those people with the authority to engage forces (i.e., the national command authority) can be guilty of such an act. While it is also true that Robert H. Jackson, the chief American prosecutor, Nuremberg trials, not all acts that occur after the initiation of hostilities are in and of themselves war crimes or prohibited by international law. War of Aggression - Wikipedia

Once the state of "belligerancy" exists, however, there are only two statuses: combatant, or non-combatant. Combatants are "lawful targets," non-combatants are "protected persons" under the Geneva Conventions, Commentary to Geneva Convention IV - Article 4, DEFINITION OF PROTECTED PERSONS.

I guess part of my problem with 1LT Watada is that he has set himelf up as judge and jury regarding international law and the actions of the National Command Authority (how egotistical), and that is not his place, nor is it the place of the Court Martial judge or panel. As I have said before, however, he can make a choice of conscience and suffer the consequences of it. His actions, however morally defensible, are not, nevertheless, legally defensible.

As you said earlier:
I'm not sure how malicious you think I perceive them; I used the term without any qualifiers, basing my choice on your comment that Lt. Watada was "reviled" among "soldiers like you". How much is he reviled? How much by the other soldiers, and how much by you? I did not explore those questions.

But now, my sense is that you wish to appear much more dispassionate than the comments I have previously quoted would indicate. So be it.

Yes, well, if you had presented your argument without the absurdity, I would have more readily concluded that you were looking at the case dispassionately. Though still with some hesitation, given your statement that Lt. Watada wouldn't want you serving on his jury.

But I agree, it is difficult to find those boundaries, as I stated in my most recent post. In a sense, Lt. Watada is testing the waters for the rest of us - of you, I should say: those who, like you, are serving in the military under a Commander in Chief whom you know full well is a lawbreaker.

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.

It pains me, Steve, and I mean that quite sincerely, that we remain as opposed on this question as we have, and I understand why we are coming at this particular question from such diametrically opposed positions, but let me try to address your question as directly as I can: The military continues to accept the concept of "Conscientious Objector." Indeed, I have both represented (successfully) and been an Investigating Officer for Conscientious Objector applications several times in my career. I fully support this process, and have found many people who have sincerely come to this point even after joining the service, and recommended or supported their discharge or change to a non-combatant role. The Army defines Conscientious Objection as: Conscientious Objection - AR 600-43

There is, however, for me (and for the military in general), a difference between this and what is "selective conscientiousness." The regulation just cited specifically deems as not conscientious objection, objections which are
This, I think, is a pragmatic determination and I fully support it. One of the options an individual who desires, as you have phrased it, to "be excused from a given type of service on moral or intellectual grounds" is to request "Class 1-A-0 conscientious objector" status, which would excuse them from "participation as a combatant in war in any form, but whose convictions are such as to permit military service in a noncombatant status." Then they would meet your concern about "If a soldier becomes convinced, through concerted study and reflection, that s/he will essentially become either a murderer or an accessory to murder by serving in a combat zone". If it is any combat zone, then I agree with you that they should not be punished. But if it is a particular combat zone (as it is with 1LT Watada), I have a completely different view.

For one who objects to war in any form, any war is objectionable. I am not such a person, although I abhor war. Every conscientious Soldier should. But whether a war is necessary or not is not a decision that I can take personal responsibility for, even if I have a very strong opinion about it. It would pain me greatly to participate in operations in Iraq, because I am opposed to the fact that we are there. Yet, I would go willingly if called, and have even volunteered for it, because that is where my fellow Soldiers are. I would do my best to serve honorably and consistent with my moral, ethical, and legal responsibilities. War is always, at best, an equivocal thing, and full of moral strife. All we can ever do is our "best under the circumstances." These circumstances are particularly repugnant to me, but that is the price one pays for putting on the uniform. You always give up a portion of your personal freedom.

Having made that bargain, however, I do not feel that I, or any other conscientious Soldier, can unilaterally change it. That way, I firmly believe, lies chaos and dishonor. Under our Constitutional standard, the military must remain subordinate to civilian authority and neither I, nor 1LT Watada, nor any other individual Soldier at any rank, can arrogate to themselves the authority to determine which actions of our civilian authority are "justified" or not. Otherwise we are countenancing dictatorship - and I mean that quite literally.

Even though I personally feel that the actions of the national command authority are not justified, indeed foolish, unconscionable and perhaps even illegal, I am absolutely and unequivocally committed to resolving that conflict through the mechanisms permitted under our Constitution and laws. That path that 1LT Watada chose is inconsistent with that standard. A Court Martial is not a forum in which this issue can or should be joined. To allow it to be so is to completely abort the constitutional process, something that I am personally, literally, sworn not to do. 1LT Watada took the same oath and must be held to the same standard.

If I'm not mistaken, didn't Lt. Watada enlist AFTER the hostilities began in Iraq in March, 2003? If I am correct, whatever argument he and others make has no basis for consideration. He knew he could be sent to Iraq, yet he enlisted. So what did he expect? That he'd be able to cherry-pick his assignments? Give me a break.

Although I agree that this war is immoral, Lt. Watada doesn't have a leg to stand on, IMO. Others, who enlisted before 9/11, who couldn't see it coming, might have a valid argument. Not Watada.