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Court-martialed for refusing to take part in illegal Iraq war

Eric A. Seitz, [attorney for US Army 1st Lt. Ehren Watada]: "1st Lt. Ehren Watada had been an eagle scout and an exemplary Army officer when he first learned that he was likely to be deployed to Iraq and began to read and learn about the war into which he would be leading his troops. What he read troubled him enormously. He learned that even before the events of September 11, 2001, the Bush administration secretly had planned to abandon the long standing strategy of containing Saddam Hussein by invading Iraq. He confirmed that the actual reasons that were given for the invasion -- namely, the presence of weapons of mass destruction and Sadam's implication in 9/11 -- were untrue, and that the Bush administration had lied to the American people and the Congress to obtain authorization and support for the war. He concluded that the failure of the United Nations Security Council to authorize a military action rendered the invasion of Iraq a war of aggression and a war crime under international law. And he realized that the mounting reports of atrocities -- detentions without trial, tortures, sieges of cities and neighborhoods -- all by then well documented -- constituted separate war crimes under the Geneva Conventions and other treaties and obligations to which the United States is a signatory. Lt. Watada determined that if he participated in the war in Iraq -- and especially if he led his troops into the conflict and occupation of Iraq -- that he, too, would be committing war crimes which he could not legally and morally defend.

Over a period of nearly five months Lt. Watada tried repeatedly, by himself and then through his counsel, to bring his concerns to the attention of his superiors and avoid a confrontation with the Army over his impending orders to deploy to Iraq. The Army ignored him, refusing initially to even respond to his efforts to resign his commission or his offers to serve in some other capacity, such as Afghanistan, for the duration of his term of service. So eventually on June 22, 2006, Lt. Watada refused to board a bus on the first leg of a deployment to Iraq, and on August 17, 2006, he appeared before an investigating officer for the Army's version of a preliminary hearing to determine whether he should be prosecuted in a military court.

In a historic hearing, Lt. Watada presented expert testimony and argued to the investigative officer that because the war in Iraq was initiated without a proper legal basis and was being prosecuted in violation of international law he not only was entitled to refuse to deploy to Iraq but was obligated to do so. Professor Francis Boyle and former UN Undersecretary General Denis Halliday testified that under the United Nations Charter and the Army's own field manual the unilateral use of military force by one nation against another may only be utilized in self-defense or in the event of an imminent threat. Retired Army Colonel Ann Wright also testified that in their training Army officers are instructed that they have the right and the obligation to refuse to carry out orders that are illegal or will result in the commission of war crimes.

Despite that testimony on November 9th the Army took formal action to convene a general court-martial in which Lt. Watada will be charged with one count of "missing movement" and four specifications of "conduct unbecoming an officer" for statements he made to the news media and a speech that he gave at the national convention of Veterans for Peace. In so doing the Army seeks not only to punish Lt. Watada for his refusal to participate in an illegal war but even more so for his outspoken criticisms of the war in which he sought to exercise rights that are protected by the First Amendment to the United States Constitution. By charging him under Article 133 of the Uniform Code of Military Justice the Army is inviting a legal challenge to the breadth and vagueness of its asserted limitations on free speech which barely survived scrutiny in Parker v. Levy, 417 U.S. 733, a 1974 Supreme Court decision in which an Army doctor was prosecuted successfully for encouraging troops to refuse to serve in Vietnam.

Pretrial motions will be heard at Ft. Lewis, Washington, in December and January with a likely trial to follow in late January or early February. If he is convicted on all charges, Lt. Watada faces a possible dismissal from military service, which is the equivalent of a dishonorable discharge, and six years confinement in a military prison."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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