Commentary
Lt. Ehren Watada does his duty
By David Howard
Online Journal Contributing Writer


Sep 28, 2006, 01:03

US Army 1st. Lt Ehren Watada is facing an eight-year term in military prison for just doing his duty: .serving our country and protecting the Constitution.

The charges against Lt. Watada are conduct unbecoming an officer, missing movement, and contempt toward President Bush. But they boil down to the �crimes� of thinking, speaking and following his conscience.

In June 2006, Ehren Watada refused to deploy to Iraq on the grounds that the Iraq war is illegal. The Army filed charges, held a hearing, and recommended a court martial.

This impending trial will be a test of our president�s authority to wage preemptive war. Lt. Watada argues, on our behalf, that President Bush has abused his authority; President Bush argues that Watada is contemptuous for saying so.

The architects of the Iraq War want to punish Ehren Watada for �unbecoming conduct,� but Lt. Watada has only done what any soldier is supposed to do upon receiving an order: exercise moral judgment, determine if the order is lawful, and only then obey it.

As we learned at the Nuremberg trials after the genocide of World War II, an officer is not merely permitted to disobey an illegal order; she or he has a solemn duty to do so, and must not take legality for granted.

How then is a soldier supposed to make the �moral choice� required by the Nuremberg Principles? What 28-year-old Ehren Watada did was educate himself about the conflict and turn to recognized experts in ethics and international law. His subsequent decision not to participate in the Iraq war was pro-Constitution, pro-international law, pro-human rights, and anti-abuse of authority.

Watada stated, �My participation would make me party to war crimes. The Iraq war is not legal according to domestic and international law.�

Many distinguished world leaders and international law experts agree that the war is illegal. They include Secretary General of the UN Kofi Annan, who in 2004 declared that the US invasion was "not in conformity with the UN Charter, and from our point of view, illegal."

Three experts testified for Ehren Watada at his Article 32 preliminary hearing: University of Illinois Law Professor Francis Boyle, former United Nations Undersecretary Denis Halliday, and retired Army Col. Ann Wright. They all supported Watada�s claim that the Iraq war is illegal.

Marjorie Cohn, president-elect of the National Lawyer�s Guild and a professor at the Thomas Jefferson School of Law, made a similar case at the sentencing hearing in 2004 for Pablo Paredes, a sailor and conscientious objector who refused to board his Iraq-bound ship.

Professor Cohn noted that the Uniform Code of Military Justice establishes that orders, to be lawful, must not be contrary to the Constitution and the laws of the United States. Furthermore, the Army Field Manual establishes an explicit duty to disobey unlawful orders: "Following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

Cohn argued that the United States has not only endorsed the Nuremberg Principles, but also has ratified both the UN Charter and the Geneva Conventions, making them legally binding according to Article 6 of the Constitution: �All Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land.�

As Ehren Watada puts it, �As the order to take part in an illegal act is ultimately unlawful as well, I must, as an officer of honor and integrity, refuse that order."

As citizens of honor and integrity, we must support Ehren Watada.