This week, military judge John Head barred international and constitutional law scholars from testifying on behalf of Army 1st Lt. Ehren Watada. Lt. Watada is being court-martialed for his refusal to serve in Iraq and for denouncing America for conducting an illegal war.
It is no surprise that the last thing the government wants is for the legality of the war in Iraq to be put on trial. We know from the Downing Street Memo that the government aimed to manipulate the facts to build its case for this war. We know from the Niger yellowcake hoax that it did do so. We know from the Bush administration’s utilization of faulty and fraudulent intelligence and the lack of accurate intelligence that it did indeed lie to start a war.
Regardless of what the Bush administration did, the military is subordinate to the president in the chain of command. If Watada’s illegal war defense is deemed legitimate, the Pentagon must be held responsible for the illegal occupation.
This is why the military court is blocking the question of the legality of the war. Article 90 of the Uniform Code of Military Justice requires that a command be lawful in order for disobeying it to be a crime. Were it proven that Watada was obeying international law by disobeying an unlawful order, the war in Iraq would be proven illegal.
The post-WWII Nuremberg trials established that following orders was no excuse for committing war crimes. It was ruled that the Nazi soldiers had not only the right but the duty to disobey orders that were illegal. This ruling applies to the Watada case. Those issuing illegal orders do not see them as such – it becomes the individual soldiers’ responsibility to make that determination.
However, there is no possible way to acquit Watada on the basis of the illegality of the war without incriminating the entire military for participating in an illegal war. Article VI of the U.S. Constitution binds us to the treaties that we sign, including the U.N. Charter, which bars the use of force except in self-defense. Aggression was deemed as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” It encompassed all the atrocities that flowed from the invasion. U.N. Secretary General Kofi Annan has stated that the U.N. has always regarded the invasion of Iraq as illegal.
Former U.S. Supreme Court Justice Robert Jackson, who was chief prosecutor for America at Nuremberg, stated: “If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
The trial of Watada pits our rule of law against the Bush regime and every entity it has dragged along into its illegal war. The world will not judge Watada, the military or the president for the outcome of the trial – it will judge America as a whole. It is not just Watada but our entire country that stands on trial. Our military is subordinate to our civilian government, which supposedly is subordinate to the public. This case is a debate over the legality of the war in Iraq.
A soldier has a right and a duty to refuse to obey an illegal order. For the sake of our Constitutional system, we have the duty to stand by that soldier, or else we bear the guilt of negligence toward the rule of law along with our government.
If we fail and allow our government to establish a precedent that soldiers can be ordered to commit illegal acts, we are no better than any other citizenry that permitted its democratic government to perpetrate war crimes. Now that you know, what will you do?
Alex Satanovsky is an LSA junior and a member of Anti-War Action.