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For Vietnam War veterans, the pending court-martial of Lt. Ehren Watada is déjà vu "all over again." Watada may be the first commissioned officer to refuse deployment to Iraq, but he is hardly the first American soldier to face trumped-up charges for denouncing U.S. aggression abroad.
It has been over 40 years since Army Pfc. James Johnson, Pvt. David Samas, and Pvt. Dennis Mora, plus dozens of other war-resisters, were court-martialed for challenging the gross illegalities of U.S. devastation in Vietnam. Few Americans remember the dark days of wartime jurisprudence, when the U.S. Supreme Court refused to hear a single challenge to the Vietnam War, and when judges deliberately and consistently ignored international law.
It is in the context of judicial abdication during the Vietnam War that the full implications of the Watada trial can be understood. Until the rulings of the ’60s are overturned, there will be no justice for Lt. Watada, or for his comrades engulfed in atrocity-producing situations in Iraq.
In the mid-’60s and early ’70s, American soldiers were sent to jail for refusing to commit war crimes. Dr. Howard Levy, a Green Beret dermatologist, spent two years in prison for refusing to violate his Hippocratic Oath when the Green Berets used medicine as a political tactic in Vietnam.
Vietnam Rulings Nullify The Law
In 1965 David Henry Mitchell II was convicted of willful failure to report for induction into the U.S. armed forces. In his appeal, Mitchell challenged the legality of Lyndon Johnson’s war. He raised basic constitutional issues: the absence of a formal declaration of war from Congress, broken treaties, and a pattern of war crimes on the battlefield. No soldier, Mitchell argued, should ever be forced to participate in criminal policies.
Chief Judge William H. Timbers simply refused to hear the evidence. With a wave of the hand, he ruled summarily that Mitchell’s claims "are wholly without merit. …The President, as Commander-in-Chief, has always exercised the power to begin hostilities." When Mitchell’s attorneys argued that, under Nuremberg, soldiers have a duty to disassociate themselves from war crimes of their government, the judge freaked out. It is, he said, "a sickening spectacle [for] a 22-year-old citizen…to assert such tommyrot." The judge argued that treaties and Geneva Conventions are "utterly irrelevant as a defense on the charge of willful refusal to report for induction." The message was clear, and a precedent was set: Even if a war is manifestly illegal, soldiers are still expected to participate. United States v. Mitchell was the first in a series of infamous cases through which American judges placed Presidential war beyond the arm of the law.
In 1966, Army Private Robert Luftig, claiming that it is unconstitutional to force Americans to participate in undeclared war, tried to block orders to ship him to the battlefield. He sued Secretary of Defense Robert McNamara.
In a facile ruling, Federal Judge Alexander Holtzoff invoked the "political question." In jurisprudence "the political question doctrine" is a way by which pro-war judges foreclose any substantive discussion of the legalities of a war. The war, Holtzoff stated, "is obviously a political question that is outside the judicial function." With "no discussion or citation to authority," the Federal Appeals Court concurred.
By 1966, the anti-war movement in the military was gaining momentum. More and more soldiers demanded the protection of the Constitution and international laws. Large rallies were held in defense of soldiers who stood up to the deceitful practices of Johnson and Robert McNamara.
The case of the Fort Hood Three became the most celebrated trial of the period. James Johnson, David Samas, and Dennis Mora — members of the 2nd Armored division at Fort Hood — refused orders to go to Vietnam. They never really got a chance to defend themselves in court. Federal District Judge Edward Curran refused to hear evidence of war crimes. He threw the case out. He, too, called the war a political issue beyond judicial cognizance. His ruling reeked of arrogance. He wrote:
"The suit is in reality a suit against the United States, and the United States has not consented to be sued. In addition, it is not the function of the judiciary to entertain such litigation which challenges the validity, the wisdom or the propriety of the Commander-in-Chief of the Armed Forces abroad. The issue presented involves a challenge to the conduct of not only diplomatic, but foreign affairs, over which the President is exclusively responsible."
Curran’s authoritarian message was unmistakable. War dissolves the separation of powers. American soldiers can expect no protection from treaties, ratified by the Senate, or from the due process clause of the Fifth Amendment. Obey orders, shut up, or go to jail.
Like Curran’s decision, almost all Vietnam War rulings were based on the "political question doctrine," for which there is no textual foundation in the Constitution. The "political question" is a judge-invented dogma that makes the applicability of law dependent on the political discretion of the executive branch. In a war context, the "political question" becomes a stop-thought, a bar to any evidence that is vital to the defense of a soldier who refuses to commit war crimes.
Taken together, the Vietnam War rulings contradict the landmark precedent Marbury v. Madison. In 1803, Chief Justice John Marshall captured the essence of judicial abdication: "It cannot be presumed that any clause in the constitution is intended to be without effect. …To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?…It is emphatically the province and duty of the judicial department to say what the law is."
As Peter Irons noted in War Powers: How The Imperial Presidency Hijacked The Constitution (one of many illuminating books from The American Empire Project series of books published by Metropolitan Books), "Several of the Vietnam War cases resulted in significant judicial rulings that, for all practical purposes, read the declaration-of-war clause out of the Constitution."
Not all rulings, to be sure, relied on the "political question doctrine." Pro-war judges were very shrewd, and some played word games. To get around the declaration-of-war requirement in the Constitution, District Judge George Templar called the Vietnam War a "limited action," and suddenly the war-power clause became irrelevant. Three million Vietnamese, thousands of Cambodians, and 55,000 American troops died in Templar’s "limited action."
At the end of 1966 and the beginning of 1967, David Harris, (who eventually published Our War, in 1996) attended a trial of a draft- and war-resister in a federal courtroom in San Jose. In his own defense, the resister called an army sergeant as a witness, a sergeant who spent time in the "bush" torturing prisoners for military intelligence. The judge did not want the jury to hear the testimony. In a separate hearing to determine admissibility of evidence, the sergeant answered a number of questions.
Had the sergeant seen prisoners tortured? Yes. Did Americans observe and participate? Yes. Was the sergeant under orders to carry out the abuse? Yes. Orders, he said, were given by word and gesture. The sergeant then described torture in detail. It included the use of an Army field phone with a hand-cranked electric generator. First, he would disconnect the phone. Then he would run wires straight from the two poles of the generator to the prisoner’s testicles. He’d crank the handle, and when the juice hit him, the prisoner usually screamed and flopped around like a fish. A man in the sergeant’s unit would say, "Dial him up," and the prisoner would "ring."
And what was the final result of all the testimony? The judge ruled that the sergeant’s testimony was irrelevant and barred it from the court. The judge did not dispute the facts. He simply prevented the defense from using them in court.
Far from smothering the GI peace movement in its infancy, courts-martial of refuseniks enraged many American troops. The "Zieg Heil" judges, as they were known among soldiers, spawned more resistance within the military. What began as individual acts of conscience merged into a relentless, uncontrollable movement that eventually helped to force the U.S. government to halt its war.
Denied due process in the courts, American youth in battle saw no alternative (it was a matter of life and death) but to rebel. Troops began to take collective direct-action for themselves. Black soldiers from Fort Hood refused "riot" duty in Chicago during the 1968 Democratic Convention. Rebellions erupted at Fort Dix. Coffee houses sprung up at major bases. GIs created a raunchy, humorous, and defiant underground press. And because of the default of American courts, international war crime tribunals, like the Bertrand Russell Tribunal, became front-page news in Europe.
Costs Of Judicial Abdication
While the tragic events of the Vietnam period are matters of public record, the role of the judiciary in crimes against peace is rarely acknowledged.
It is often said that "In war the laws are silent." It is not true. Laws are codified, and there are always courageous individuals to vindicate them. It’s not the law that is silent; it’s the cowardly judges who refuse to enforce the law, who paralyze the quest for justice.
The cost of judicial abdication in the Vietnam War years, when American judges averted their eyes from the emerging holocaust of Indochina, is incalculable. Without judicial immunity, many of the horrendous deeds of the Johnson-Nixon years might never have occurred.
There were more than 12 opportunities for American judges to confront the constitutional issues evoked by Presidential war. When Supreme Court Justice William O. Douglas, who publicly acknowledged the illegality of U.S. invasions in Indochina, offered to hear a war-challenge appeal, his colleagues on the Court overruled him.
With judicial assurance of complete impunity, beginning on December 18, 1972, Nixon dropped forty-thousand tons of explosives — in three thousand sorties — on a sixty-mile-long population corridor from Hanoi to Haiphong Harbor. The New York Times called Operation Linebacker II "stone-age barbarism." The Washington Post called it "savage and senseless." Nixon’s Watergate break-in was a mere peccadillo compared to the judge-sanctioned air raids in Asia.
The wanton destruction of cities and towns, the use of Agent Orange to destroy nature and crops, systematic torture and rendition, assassination programs — the bloody tragic course of the entire war depended on the winks and nods of judges who betrayed our troops. American judges played golf at country clubs on weekends while American soldiers of conscience, who tried to uphold the Constitution, languished in prison. And throughout the decade of lawlessness, not a single civilian leader, not one commander or high-level officer was ever convicted for commission of war crimes.
For soldiers in the 1960s, upholding the rule of law was more dangerous than breaking it. It was a sad, sad time for American jurisprudence.
History Vindicates Our Soldiers Of Conscience
History has long since vindicated the soldiers who spoke out against the war that destroyed their lives — soldiers who tried, albeit unsuccessfully, to uphold the Constitution and international law; soldiers who warned their beloved nation, long before the My Lai massacres, of America’s impending descent into barbarism. How many Vietnamese lives could have been saved, how many American soldiers might be home today with their grandchildren, had American judges, as well as presiding military commanders, confronted the legal monstrosities of the war against Vietnam?
Judicial Complicity Continues
Nor has judicial complicity in crimes against peace abated since the Vietnam War. In February 2003, Military Families Speak Out; Representative John Conyers; and members of Congress; along with active-duty reservists, filed suit to challenge the imminent invasion of Iraq. In Doe v. Bush, attorney John Bonifaz argued that the president is not a king, he "does not have the power to wage war against another country absent a declaration of war from Congress."
The judge was not moved. After all it was this same infamous Judge — Joseph L. Tauro — who had sanctioned Nixon’s war crimes in Cambodia forty years earlier. Tauro again called this new invasion a "political question" and dismissed the suit.
On appeal, the appellate judge found a new way to finesse the legal issues concerning Iraq. He argued that, since the invasion was not actually in progress, the "case is not ripe." Six days after he threw out the challenge, the terror over Baghdad began.
Because of judicial abdication in time of war, American soldiers are damned if they do and damned if they don’t. If they challenge the legality of a pending war, their case is "premature." If they wait for an invasion to become a fait accompli, when chaos is loosed on hapless populations, it is too late. The political question doctrine still hangs like the sword of Damocles over American soldiers of conscience. Camilo Mejia spent nine months in jail, Kevin Benderman over 15 months in prison, for becoming conscientious objectors to the carnage of another occupation.
How many more American soldiers, how many Iraqi civilians who never threatened the sovereignty of the U.S., must die before American judges fulfill their obligation to uphold and enforce the rule of law? How long will it be before the infamous Vietnam War rulings are reversed, before the blood-drenched "political question doctrine" is buried for good?
These are the underlying issues for the pending court-martial of Lt. Ehren Watada, a trial that could become a reckoning for the American judicial system.
The future of Lt. Watada is now in the hands of Lieutenant General James Dubik, Commanding General at Fort Lewis, Washington. He has yet to set a date for the court-martial. Will he drop the charges against Watada, as letter-writers urge? Or will he, like his timid predecessors, repeat the follies of the past?
There is no man or woman in uniform who speaks with greater passion, force and clarity than Lt. Watada: "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong, but a horrible breach of American law."
Peace activists are planning large demonstrations and actions in the event that a court-martial takes place at Fort Lewis. To learn more about upcoming events, to support Watada’s cause, go to: www.thankyoult.org.