Right or wrong, or does it matter?

By now most of you will have heard about 1LT Ehren Watada, the army officer who is refusing to obey an order to deploy to Iraq. This is an issue that's getting a fairly large amount of play on the various blogs, and it's stirring up strong emotions on both sides of the political spectrum. (One look at the results of a technorati search on "Watada coward" is enough to show that.) My own feelings are strong, too - strongly mixed.

On the one hand, I think that Lt. Watada has made an exceptionally bad decision. He has said that he cannot claim conscientious objector status because he isn't opposed to all wars, and our country don't provide any exception for those who object to fighting in some wars but not others. Personally, I think that's the way it has - having the military do what the civilian leadership tells them to is one of the things that keeps us a democracy. A system where the people in uniform get to decide whether or not a particular war is worth fighting comes way too close to the slippery slope that leads to military rule for my taste.

It is a well-known fact that "just following orders" is not a defense that can be used to excuse the commission of war crimes. Lt. Watada claims that our occupation of Iraq violates international law. It may. I can't say for certain that it does not - I'm not an expert in international law. To the best of my knowledge, neither is he. International law is an enormously complex field, and there are people who make compelling arguments on both sides of the issue. In cases when it is not absolutely clear that the order is illegal, there is actually a presumption that the order is legal. A soldier who willfully disobeys a presumptively legal order gets court martialed.

From a purely objective point of view, Lt. Watada is in the wrong. He should obey his orders, and go to war. And yet...

It is very difficult for me to not admire him for the stand that he's taking. He has decided that he cannot in good conscience carry out the orders that he was given. He is knowingly and willingly disobeying them, and in the process he is knowingly and willingly facing court martial, and almost certain jail time and dishonorable discharge. Those are consequences that he will have to live with for the rest of his life. He knows that, but he's willing to stand by his principles and accept them. That requires a level of moral courage that I don't know I'd be able to muster.

It's easy to claim - easy to think - that Watada is a coward, using moral opposition to the war as an excuse to escape the hazards of combat. Such accusations of cowardice to this man a disservice. His position may be wrong, but he has staked it out despite its massive unpopularity with his fellow soldiers and with the public at large. Under the circumstances, refusing to go might just require more courage than deploying would have.

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If only those military personnel who are experts in international law can call on the legal defense that they are obliged to disobey illegal orders, we might as well just tear up the Nuremberg Tribunal judgments, the Geneva Convention, and all those other inconvenient laws and treaties that the Bush-Cheney regime considers "quaint" and "obsolete".

Given that the US Army's much-ballyhooed new training in military ethics happens to omit the Geneva protocols on basic standards of treating prisoners, we seem to be in process of that anyhow.

It is blatantly obvious that the US invasion and occupation of Iraq are in explicit violation of the UN Charter and other international laws to which the US is signatory: the unprovoked ("pre-emptive") conquest, the wanton violence against civilians, the manipulation of the Iraqi economy and legal system for benefit of US corporations, and the continuing abuse and torture of detainees are each sufficient grounds for Lt. Watada's objections.

By Pierce R. Butler (not verified) on 10 Jun 2006 #permalink

I neither said nor implied that one needs to be an expert in international law to call on the defense of illegal orders in all circumstances. I said that in this case there are people, like yourself, who argue that the war is illegal. There are others who argue that it is legal. The legality of the war itself is definitely questionable, but it is a complex topic that has been and continues to be debated by experts in international law. Under the circumstances, I don't think a reasonable case can be made that an order to deploy to Iraq is clearly illegal. Because obedience to orders is necessary in any armed service, the presumption is that any order not clearly illegal is a legal order that must be obeyed.

That does not mean that a soldier is not obligated to obey orders that are clearly illegal. Orders to torture prisoners, for example, clearly fall into that category, which is why the individual soldiers involved at Abu Ghraib were convicted - the court martial boards rejected their higher orders defenses. I'd be much happier if more people at the higher ranks - all the way up - were tried for giving the illegal orders in the first place, but the orders were still so clearly illegal that the SGTs and PFCs who were actively involved in carrying out the orders were still clearly in the wrong.

As far as the Nuremberg Tribunals, Geneva Convention, and other treaties are concerned, I'd point out that while the German invasion of France was illegal, individual Wehrmacht soldiers and junior officers were not held accountable for that particular portion of the Second World War. Enlisted troops and junior officers were, on the other hand, held accountable for killing prisoners and other war crimes.

Finally, the US Army trains on the Geneva standards for dealing with prisoners on, quite literally, a regular basis. I know that it can be difficult to keep from judging the entire Army based on the actions of a small fraction, but I'd appreciate it if you could try.

Any nation with the resources to launch a war of aggression will also be able to find "experts" defending their crimes - your "gee I dunno" stance would never leave room for objection. The US war against Iraq is clearly illegal under the UN charter, as it was neither in self-defense nor authorized by the Security Council.

We agree about Abu Ghraib, except that I think punishing only the non-coms amounts to a de facto cover-up of continuing criminality.

German & Japanese higher-ups were held responsible for their aggression in WWII (though I suspect the legality of Germany invading France was fairly unambiguous, since France had, after all, declared a state of war between the two nations: the unprovoked attacks on Poland, Belgium, Netherlands, Denmark, Norway, USSR, etc, were much more clearly crimes). At any rate, does the non-prosecution of lieutenants at Nuremberg relieve Watada of his obligation to defy illegal orders?

You seem to be reading more into my comment than is there, unless you insist on seeing any criticism of Army policy as an insult to each individual in uniform. My statement was based on the following:

"The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Convention that explicitly bans "humiliating and degrading treatment," according to knowledgeable military officials..." - Army Manual to Skip Geneva Detainee Rule, By Julian E. Barnes, Los Angeles Times, June 5, 2006

Something is indeed rotten in American political and military leadership. The remaining healthy parts are found in people like Watada, Meija, Kwiatkowski, Ritter, Zinni... - quite possibly, more principled objectors could be named on the military side than the civilian.

By Pierce R. Butler (not verified) on 11 Jun 2006 #permalink

It may be that any nation with the resources to launch a war of aggression will have the ability to obfuscate the situation, and it may be that this does not leave room for individual soldiers to refuse to fight in such wars. If that is the case, I'm not sure that I like it, but I'm also not sure that I really like the alternative, either. We have a term that describes societies where the military is allowed to overrule the civilian leadership - we call them "military dictatorships." It's a hell of a long way from individual soldiers being permitted to refuse to fight in wars based on their own opinions of the legality of the war under international law to an all-out junta, to be sure. However, the two lie on the same path, and are separated by a steep and slippery slope. I think that there are good reasons to hold a nation's leadership accountable for such actions, and equally good reasons to not hold the rank and file troops accountable.

Setting aside the generalities, for the moment, I don't think that the specifics of the Iraq war are as clear as you believe. To the best of my knowledge, the question of whether pre-emptive action can be justified under self-defense is unclear, as is the question of how much evidence is needed first. Similarly, the administrations claims that their actions were covered by pre-existing Security Council resolutions do act to complicate the situation. And all that just covers the initial invasion. The question of whether orders to deploy now are illegal is more complex still. Even if the initial invasion was illegal, it's possible that the "Pottery Barn" principle requires us to stay until we've fixed the mess. Add to that the fact that the troops are now in the country with the (at least nominal) consent of an elected government, and we're into the type of situation that occupies legions of lawyers for decades. I think that a very good case can be made for the illegality of the war, and I'd love to see it come before an international court. I just don't think it can reasonably be called clearly illegal.

Watada has a duty to disobey orders that are clearly illegal, but he has a duty to follow any order that is not clearly illegal, and that specifically includes orders where the legality is ambiguous or unclear. That is the law. If he feels that he cannot in good conscience obey an order to deploy, than he must follow his conscience, but he will be committing a crime, and he will have to face the consequences. He appears to be willing to do just that, and I admire him for that.

We agree on Abu Ghraib without exception.

I was reading more into your comment than was there, and I apologize.

I had not heard of the new policy. My understanding, having gone back and looked at articles, is that it is a preliminary decision that has not yet been carried out. It is clearly wrong, and clearly should be reversed. I can tell you that the decision has not, as of last week, made it into practice - my wife informs me that the proper treatment of prisoners was covered in depth at her pre-deployment briefing.

Linking the duty to disobey an illegal order to military dictatorship is a new one on me; the connection seems too tenuous to take seriously, particularly since such dictatorships are even less lenient about individual acts of conscience.
UN Security Council Resolution 1441 provides a little bit of smoke, with which Bush's lawyers have done the best they could with their mirrors. But really: a demand that Iraq disarm weapons it had eliminated a decade before or face "serious consequences" no more authorizes a US invasion than it allows you or me to assassinate Saddam Hussein. The Downing Street Memos show that Blair, for one, recognized this in that he wanted to go back to the UNSC for another resolution to "make it legal" - but was overruled by the godfather.
And when did the "Pottery Barn Rule" become international law?!? Even if that were the case, does it require the bull to remain in the china shop until each cup is glued back together?
As you note, the, ah, "post-Geneva" policy has not been officially added to the manual - but it's obviously an attempt to bypass the McCain amendment requiring the Army to treat detainees by the international laws that Attorney General Gonzales declares "quaint" and "obsolete", since McCain was sloppy enough to specify the Army manual instead of the Geneva Conventions proper.
Our dialog about all this means very little in the grand scheme of things, and my wishes mean much less - but I hope your wife returns soon and healthy from her deployment. Back here in Florida, I'm continuing to do what little I can to bring all the troops home asap.

By Pierce R. Butler (not verified) on 11 Jun 2006 #permalink

I can't resist adding some notes on Lt. Watada's specific objections on the illegality of the war against Iraq, as found at http://www.thenation.com/doc/20060626/brecherweb:

In an interview with Democracy Now!, he explained that as he read articles by experts on international and constitutional law, reports from governmental and nongovernmental agencies, revelations from independent journalists, writings by the Iraqi people and the words of soldiers coming home, "I came to the conclusion that the war and what we're doing over there is illegal."

First, he concluded that the war violates the Constitution and War Powers Act, which, he said, "limits the President in his role as commander in chief from using the armed forces in any way he sees fit." Watada also concluded that "my moral and legal obligation is to the Constitution and not to those who would issue unlawful orders."

Second, he claims the war is illegal under international law. He discovered that "the UN Charter, the Geneva Convention and the Nuremberg principles all bar wars of aggression." The Constitution makes such treaties part of American law as well.

These are not wild legal claims. Watada's conclusions are supported by mountains of evidence and experts, including the judgment of UN Secretary General Kofi Annan, who in 2004 declared that the US invasion was "not in conformity with the UN Charter, and from our point of view...was illegal."

Watada said he came to recognize that the military conduct of the occupation is also illegal: "If you look at the Army Field Manual, 27-10, which governs the laws of land warfare, it states certain responsibilities for the occupying power. As the occupying power, we have failed to follow a lot of those regulations." He told ABC News that the "wholesale slaughter and mistreatment of the Iraqi people" is "a contradiction to the Army's own law of land warfare." ...

In 2004, Petty Officer Pablo Paredes refused to board his Iraq-bound ship in San Diego Harbor, claiming to be a conscientious objector. At his court-martial, Paredes testified that he was convinced that the Iraq War was illegal. ... The military judge, Lieut. Cmdr. Robert Klant, accepted Paredes's war-crimes defense and refused to send him to jail. The government prosecutor's case was so weak that ... Klant declared ironically, "I believe the government has just successfully proved that any seaman recruit has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

By Pierce R. Butler (not verified) on 14 Jun 2006 #permalink