Public Comment

The second court-martial of Lt. Ehren Watada is set for July. This brave officer who refused deployment to Iraq faces six years in prison on three charges: “missing movement,” “conduct unbecoming an officer,” and “use of contemptuous words for the president.” 

In two eloquent speeches, Watada questioned the legality of the war in Iraq and denounced the mendacity of the Bush administration. 

Ordinarily the truth of a claim is a good defense against any charge of defamation. Not in the Army. In the pre-trial hearings, the judge ruled that the truthfulness of Watada’s speech is irrelevant; that treaties and international law are irrelevant; that a soldier’s only duty is to follow orders, regardless of their legality! What kind of trial is it where truth and law are inadmisible! It’s 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 prosecution claims that Watada has no right to question authority because he volunteered to serve. Let’s set the record straight. Watada only volunteered to follow legal orders, to participate in legal wars, and he is willing to risk his life to defend his country from a real, imminent attack. But he also took an oath to uphold and defend the Constitution. And he has kept his promise.  

Watada never volunteered—no soldier volunteers—to violate human rights, to violate American treaties, to destroy the sovereignty of nations, to participate in aggression. A contract to break the law has no legal standing.  

Watada is right. Except for U.N.-sanctioned intervention, defensive necessity is the sole basis for legal war. The U.N. Charter explicitly outlaws preemptive war, a war of choice. And the U.S. Constitution is unambiguous. Article VI states: “All Treaties, made or which shall be made, are part of the supreme law of the land, and are binding.” Our soldiers deserve protection of the law, the social contracts for which they risk their lives. 

It is true all militaries operate through a chain of command, and soldiers are expected to follow orders. But the authority of command depends on the legality of the orders. That is Watada’s point. The legal status of a war makes all the difference.  

The real issue is not the so-called voluntary nature of the enlistment contract, but the bait-and-switch tactics of the military. Our youth enlist in good faith to defend the country from foreign attack, only to be transformed—involuntarily—into perpetrators and pawns of empire. It’s the government, not war resisters, that is responsible for a breach of contract.  

No soldier should give a life, or take a life, for a lie. There are many kinds of betrayal in human affairs, but in military affairs of state, there is no greater act of disloyalty than to send young men and women to their death on the basis of fraud. An enlistment contract based on fraudulent claims is null and void. 

The great Supreme Court Justice Robert Jackson explained Watada’s point at Nuremberg: “Any resort to war—to any kind of war—is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when the war itself is illegal.” 

Jackson’s point is profound. The law protects our soldiers from criminality. Efface the distinction between a lawful and unlawful war, as the Army is trying to do today, and all descends into mere power and greed. The Army ceases to be our noble defender of democracy; it becomes a menace to our institutions.  

All the major issues of imperial occupation—the fraudulent basis for the war, the absence of a formal declaration from Congress, the flagrant violations of international treaties like the U.N. Charter—are coming to a head in this historic battle between a soldier of conscience and an Army that has yet to prosecute a single top official for Abu Ghraib.  

Watada also calls attention to systematic war crimes on the battlefield. Official crimes of policy and command. The forcible transfer of populations, the wanton destruction of towns and villages by 500-pound bombs; the use of cluster bombs in populated areas; the use of heinous weapons like white phosphorous; the ongoing checkpoint massacres; the widespread use of torture and rendition—because of these policies of command, resistance is justified. 

When the Army operates beyond the law, the duty to follow orders is dissolved. Thomas Jefferson once wrote: 

“Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Resistance is justified. 

The Watada case is heading for the highest court of appeal: the people themselves. People power is greater than military power. The spirit of non-violent resistance is greater than man’s inhumane technology. And history will vindicate the courage of Lt. Ehren Watada, and your own activism for peace will not be forgotten. 

Paul Rockwell is an Oakland resident. The above text is derived from a speech he delivered at the Starve War, Feed Peace Rally in Walnut Creek on March 17.