The war on trial - Page 3

The war on trial: an Army officer risks prison to argue that Bush's war is illegal
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Mitchell was the first in a series of infamous cases through which courts placed presidential war beyond the arm of the law.

In a 1966 ruling against Army Private Robert Luftig, Federal Judge Alexander Holtzoff ruled that the war "is obviously a political question that is outside the judicial function." With "no discussion or citation to authority," the Federal Appeals Court concurred. In the most celebrated trial of the period, that of the Fort Hood Three — soldiers who demanded the protection of the Constitution and international law — District Judge Edward Curran refused to hear any evidence of systematic war crimes. He called the war a political issue beyond judicial cognizance.

Taken together, the Vietnam War rulings contradict the landmark precedent Marbury v. Madison. In 1803, Chief Justice John Marshall captured the essence of judicial abdication: "It cannot be presumed that any clause in the Constitution is intended to be without effect.... To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?... It is emphatically the province and duty of the judicial department to say what the law is."

In this case the argument is particularly clear: Watada is not taking a political position as part of his defense. The United States may be overextended; the invasion may create blowback; unilateral actions may alienate allies; war debts may boomerang on the economy; anarchy in Iraq may be unavoidable. These are political questions, but they aren't what the first lieutenant is talking about. Watada is challenging the legality, not the political wisdom, of the war.

The president, he argues, is the final arbiter of foreign policy — but only so long as policies are carried out in accordance with the rule of law.

SAME OLD STORY

History has long since vindicated the soldiers of conscience who spoke out against the Vietnam War — soldiers who tried, albeit unsuccessfully, to uphold the Constitution and international law; soldiers who warned their beloved nation long before the My Lai massacre of America's impending descent into barbarism. How many Vietnamese lives could have been saved? How many American soldiers might be home today with their grandchildren had American judges as well as presiding military commanders confronted the legal monstrosities of the war against Vietnam?

The cost of judicial abdication in the Vietnam War years, when American judges averted their eyes from the emerging holocaust in Indochina, is incalculable. Without judicial immunity, many of the horrendous deeds of the Johnson-Nixon years might never have occurred.

There were more than a dozen opportunities for American judges to confront the constitutional issues evoked by that undeclared war. When Supreme Court Justice William O. Douglas, who publicly acknowledged the illegality of US invasions in Indochina, offered to hear a war-challenge appeal, his colleagues on the court overruled him.

So today we ask: How many more Iraqis and Americans will die before American judges fulfill their current obligation to uphold and enforce the rule of law? How long will it be before the infamous Vietnam War rulings are reversed, before the blood-drenched political question doctrine is buried for good?

Lt. Col. Head, presiding at Watada's court-martial, is already preparing to repeat the follies of the past. At a pretrial hearing Jan. 17, he denied all defense motions to present hard evidence of systematic war crimes in Iraq. He rejected the Nuremberg defense. He also upheld a pivotal government motion "to prevent the defense from presenting any evidence on the illegality of the war." Like past accomplices, he claimed that Watada's case is a "political issue" beyond the jurisdiction of the court.

Capt.

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