Where's the Line Between Duty to Disobey Unlawful Orders and Military Order?

In what many are calling a bizarre twist, the courts-martial of Army Lt. Ehran Watada has ended in a mistrial. Many felt that all the major issues of the Iraq War - the questions regarding the possible fraudulent basis for the war, the absence of a formal declaration of war from Congress (which has no constitutional authority to transfer its war-declaring power to another branch), the war crimes, the violations of international treaties such as the United Nations Charter, were going to come to a head in this court battle between a junior officer and senior Army leadership. That may or may not have happened. But on the second day of trial, after the prosecution rested its case against Watada, and over the objections of the defense, the presiding judge declared a mistrial. This may result in the end of the legal proceedings against Watada for, according to the rules of Double-Jeopardy, once a jury has been selected (empaneled) a defendant cannot be re-tried for the same offense. Of course Watada may be prosecuted for other charges stemming from the same circumstances.

American Public discontent with the handling of the war is at an all-time high and doesn't appear to have peaked. Yet, while the administration can ill-afford to have a Watada offering his anti-war opinions to the public and setting example for other troops, nor can it afford to make a martyr out of Watada for doing so. By allowing the conflict between two opposing duties that are fundamental to the continued existence of a democracy to go forward, the Administration risks doing both.

I believe that, having had a mistrial, the nation as a whole may be best served by leaving things as they are and letting Watada drop out of the public eye.

Background

Following the events of 9/11, President Bush "declared war" upon Iraq. Congress passed a vague and loosely worded resolution in support of President Bush. No Congressional Declaration of War was ever made. A very few legislators expressed doubts about the truth of the accusations and legality of President Bush's actions but their voices were drowned in the roar for action by the American public. Only those members of Congress most secure in their seats could have raised even the specter of doubt, and few were so inclined. Even if a member of Congress had reservations, it would pave been political suicide for an elected official to be seen as not being in line with this American public's quest for vengeance.

As could be expected, the overwhelmingly US coalition forces quickly overran the Iraqi army and became an occupation force. Ever since, the coalition forces have been under constant attack by insurgents, many of whom initially welcomed the overthrow of Saddam Hussein.

Since the overthrow of Saddam Hussein's government, the "facts" which were relied upon to justify the invasion in the first place have come under increasing question and criticism. The worldwide support the US enjoyed following 9/11 rapidly dissipated in the face of US obstinacy in linking the secular Iraqi government to the Islamic terrorists exemplified by Osama Bin Laden. The US public, reeling from the loss of life and the mere fact of the attack happening in the first place, initially offered whole-hearted support for the invasion. But as timed pressed on, the "facts" repeatedly went uncorroborated and casualties mounted. Recruiting goals started to go unmet and the US military, strained by the actions in Iraq and Afghanistan as well as the need to meet its other world-wide responsibilities, had to institute "stop-loss" steps to maintain troop levels. These steps included recalling military reserve members back to active duty and suspending the release of military service-members whose terms of enlistment had been completed. This was necessary as most of its functions of an army can be supplemented but not replaced by technology.

In the end it is people, not machines, that are the only truly effective means of occupying a territory.

In an effort to decrease the stress on the soldiers and to help maintain unit morale, the Army implemented a rotation protocol that limits the amount of time any particular military unit can remain continuously in the war zone.

First Lieutenant Watada, like many Americans military service members, volunteered after the attacks of 9/11. A well-disciplined soldier, he was assigned to one of the Army's new Stryker units, the 3rd Brigade of the 2nd Infantry Division. Named after the Stryker combat vehicle, the Stryker units are at the forefront of the Army's evolution to meet its changed role which resulted from the collapse of the former Soviet Union.

When word came of his unit's impending rotation, Lt. Watada expressed concerns to his commanding officer (CO) regarding the Iraqi conflict. His battalion commander, Lt. Col. Antonia, advised him to research the matter. Lt. Watada did just that and reached the conclusion, under both international and US law, that the war was unlawful. He took his concerns to his CO and requested a transfer to Afghanistan.

When his request for transfer was denied, Watada attempted to resign his commission. His resignation was refused. It is important to note here that Watada is not a conscientious objector - these are people opposed to all forms of violence. Nor is he a coward as he specifically requested a transfer to a unit in Afghanistan.

When the day came for his unit to deploy to Iraq, Lt. Watada did not deploy with his troops. He later publicly accused the Bush administration of falsely using the attacks on Sept. 11, 2001 as a pretext for invading Iraq. These statements were made when Watada was on leave and out of uniform, in an address to a Veterans for Peace convention. He openly questioned the legality of the war in Iraq, and denounced the lies of the Bush administration. However, he did not encourage any other soldiers to follow his example.

Duty to Disobey Unlawful Orders

Obviously a soldier (or any other member of the military) has a duty to obey the orders of his or her superiors. But this duty is not absolute. At least in the US, all military personnel also have a duty to disobey any unlawful order.

Every service member of the US military takes the following oath:

"I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice.

So help me God"

The first and foremost duty is to the U.S. Constitution. Implicit is the understanding to disobey those issuing orders in contravention of the Constitution. It was the United States that made this requirement to disobey unlawful orders an explicit international standard when it insisted that this duty by a part of the Nuremberg Protocols following WWII. Obviously any government or military leader who gave an order for atrocities to be committed were to be held liable. But for the first time military personnel were not allowed to hide behind the defense that they were just following the orders of their superiors and/or civilian leaders.

Tragically, some twenty years after the Nuremberg Trials, the US itself failed to live up to this same standard. On March 16, 1968 the men of Charlie Company, 11th Brigade, Americal Division entered the Vietnamese village of My Lai. "This is what you've been waiting for - search and destroy - and you've got it," they were told by their superior officers. At the end of the day over 300 apparently unarmed civilians were dead: men and women, children and elderly.

The My Lai Massacre sent shock waves though the American Military and Political Establishments and further infuriated a public increasingly disenchanted with its government. As a result of Nuremberg and My Lai, every junior officer - especially those in the Combat Arms of Infantry, Armor, Field and Air Defense Artillery - is given instruction in this area.

Soldier's Speech Restricted

Soldiers have always held a precarious place in our nation. Alexis De Tocqueville described the US as a nation of shopkeepers. This means we are more prone to follow the teaching's of Adam Smith's Wealth of Nations than Sun Tzu's Art of War (executives gurus notwithstanding). There is an inherent tension between the maintenance of democracy and the maintenance of military order. But a military force is necessary to protect the freedoms we exercise under our democracy. Traditionally we have been very suspicious of the military and historically have only had a very small core of peacetime military professionals.

Article 133 of the Uniform Code of Military Justice (UCMJ) prohibits officers from "Conduct unbecoming an officer and a gentleman." The Army argues that by criticizing the war in public, Watada erodes the authority of the command structure. While Freedom of Speech is one of, if not THE, fundamental principles upon which this country was founded, the U.S. Supreme Court has frequently ruled that the speech of military personnel is subject to restriction. The reasoning is that the military serves a very important function necessary to preserve our democracy. As such, military personnel are free to think any way that they want, but their freedom to make public statements is restricted. This restriction of constitutional rights is necessary to maintain discipline in the face of the terrible things that the military is sometimes called upon to do. Officers, as direct agents of the President, are held to a higher standard than that to which enlisted soldiers are held. And as military service member remains a part of the military 24/7 for as long as they serve, whether in uniform or out, it is commonly believed that they should therefore never express their political opinions in public.

The civilian control of the military is another fundamental principle of this nation. The most famous example of an officer being called to task for public political statements occurred when President Truman recalled General MacArthur during the Korean War. Macarthur had publicly questioned Truman's conduct of the war. The general was a hugely popular military hero of WWII and Truman was at a low point in his popularity. But President Truman, who was always sensitive to the dignity of the office of the President, recalled Macarthur and demanded the general's resignation. Although this was probably the final nail in the coffin for Truman's reelection hopes, it is important to note that not only was there was never a question regarding General MacArthur's acquiescence and quite return, but General MacArthur would have been shocked had it even been suggested he do otherwise.

Conclusion

Unfortunately, the US has never provided its military men and women any clarification as to where the line is between lawful and unlawful orders. This is left to each military member's conscious. Some things are patently obvious such as orders to commit genocide, to rape and pillage, etc. Unfortunately, acts committed during war by definition are are outside of lawfully permitted peacetime acts. Nor is it clear how far down the chain of command should liability go. It would take a great deal of moral courage just to refuse orders, much less go public with the reasons for doing so. Lt. Watada is not the only military officer or enlisted member who has refused to deploy to Iraq. Others have also done so. But this Watada's case has caught the public eye. He may have lit a flame by making a public statement, but instead of being allowed to die, the ember was fanned into a flame by the subsequent charges and prosecution.

President Bush and the other powers that be have a choice now. They can continue down the current path and bring different charges against Lt. Watada. Or President and his administration can quietly drop the matter. Lt. Watada's military career is effectively over. That will not be missed by the rest of the military.

Before the flame grows out of control, might it not be best to let it die?