The war on trial

The war on trial: an Army officer risks prison to argue that Bush's war is illegal

It is a sad day in American jurisprudence when a soldier of conscience is court-martialed — not for lying, but for telling the truth; not for breaking a covenant with the military, but for upholding the rule of law in wartime.

The court-martial of First Lt. Ehren Watada is set for Feb. 5 in Fort Lewis, Wash. The 28-year-old soldier from Hawaii is the first commissioned officer to refuse deployment to Iraq. He is charged with "missing movement" and "conduct unbecoming an officer" including the "use of contemptuous words for the President."

The story has received a fair amount of media attention, in part because the Pentagon is trying to force three journalists to testify against Watada (see "A Reporter Stands Up to the Army," 1/10/07).

But the soldier's story is significant on its own.

A year ago, when Watada was on leave and out of uniform, he delivered a moving address to a Veterans for Peace convention. Watada is not a conscientious objector. He even offered to serve in Afghanistan.

But he questioned the legality of the war in Iraq, and he denounced the known lies of the George W. Bush administration. He said nothing more than what the world already knows, and he did not encourage any other soldiers to follow his example.

All the major issues of the Iraq fiasco — the fraudulent basis for the war, the absence of a formal declaration from Congress (which has no constitutional authority to transfer its war-declaring power to another branch), the war crimes, the flagrant violations of international treaties such as the United Nations Charter — are coming to a head in this historic battle between a junior officer and an army whose Abu Ghraib torture scandals shocked the world.

Ordinarily, the truth of a claim is a strong defense against any charge of defamation. Not in the Army, however. Army prosecutors do not intend to allow Watada any opportunity to prove in court that everything he said about the president is true. Prosecutors told the presiding judge, Lt. Col. John Head, that the truthfulness of Watada's speech is irrelevant to the case.


On the charge of refusing deployment, Watada's case may seem weak — he is, after all, an officer in the military, and he has failed to obey a direct order to go to Iraq. But his defense actually has legal merit: his actions are based on hard evidence about military conduct in Iraq and a clear understanding of the law.

Watada is raising matters of principle that concern the right of all soldiers to full protection of the law. Under the Constitution and the standard enlistment contract, every soldier has a right, even a duty, to disobey illegal orders. The legality of Watada's orders pursuant to a "war of choice" is the central issue of the trial.

"The war in Iraq is in fact illegal," Watada told "It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."

No American soldier has any obligation to participate in military aggression, "crimes against peace," or any operation that violates the Geneva Conventions. Under constitutional government, the authority of military command derives not from one person alone but from the rule of law itself.

There are only two conditions in which a war is legal under international law: when force is authorized by the United Nations Security Council or when the use of force is an act of national self-defense and survival. The UN Charter, based on the Nuremberg Principles, prohibits war "as an instrument of policy." And the war in Iraq is just that — a war of choice.

There is a common tendency among lawyers and military commanders to sneer at international law.

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