When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada’s court martial yesterday, he probably didn’t realize jeopardy attached. That means that under the Double Jeopardy Clause of the Constitution, the government cannot retry Lt. Watada on the same charges of missing movement and conduct unbecoming an officer.
Lt. Watada is the first commissioned officer to publicly refuse orders to deploy to Iraq. He claimed those orders were unlawful because the war is illegal and he would be an accomplice to war crimes if he followed them.
The judge refused to allow me and others to testify as expert defense witnesses on the illegality of the Iraq war and the war crimes the Bush administration is committing there.
The Uniform Code of Military Justice sets forth the duty of military personnel to obey only lawful commands. Article 92 says: “A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States ”
Lt. Watada said at a June 6, 2006 press conference in Tacoma, Washington, “The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war.” He stated, “An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq.”
Citing “deception and manipulation and willful misconduct by the highest levels of my chain of command,” Lt. Watada declared there is “no greater betrayal to the American people” than the Iraq war.
The “turning point” for Lt. Watada came when he “saw the pain and suffering of so many soldiers and their families, and innocent Iraqis.” He said, “I best serve my soldiers by speaking out against unlawful orders of the highest levels of my chain of command, and making sure our leaders are held accountable.” Lt. Watada felt he “had the obligation to step up and do whatever it takes,” even if that means facing court martial and imprisonment.
Lt. Watada did face court martial, and four years in prison, until the judge declared a mistrial.
This is what I would have said had I been allowed to testify at Lt. Watada’s court martial:
The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.
A war of aggression, prosecuted in violation of international treaties, is a crime against the peace. The war in Iraq violates the Charter of the United Nations, which prohibits the use of force. There are only two exceptions to that prohibition: self-defense and approval by the Security Council. A pre-emptive or preventive war is not allowed under the Charter.
Bush’s war in Iraq was not undertaken in self-defense. Iraq had not attacked the US or any other country for 12 years. And Saddam Hussein’s military capability had been effectively neutered by the Gulf War, 12 years of punishing sanctions, and nearly daily bombing by the US and UK over the “no-fly-zones.”
Bush tried mightily to get the Security Council to sanction his war on Iraq. But the Council refused. Bush then cobbled together prior Council resolutions, none of which, individually or collectively, authorized the use of force in Iraq. Although Bush claimed to be enforcing Security Council resolutions, the Charter empowers only the Council to enforce its resolutions.
Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture and inhuman treatment are grave breaches.
The torture and inhuman treatment of prisoners in US custody at Abu Ghraib and elsewhere in Iraq are grave breaches of Geneva, and therefore, war crimes. The execution of unarmed civilians in Haditha and other Iraqi cities are also war crimes.
Commanders in the chain of command, all the way up to the commander in chief, can be prosecuted for war crimes if they knew or should have known their subordinates were committing war crimes and failed to stop or prevent them. The torture policies and rules of engagement were set at the top. It is George W. Bush, Dick Cheney, Donald Rumsfeld and Colin Powell who should be on trial – for the commission of war crimes.
Inhumane acts against a civilian population are crimes against humanity and violate the Fourth Geneva Convention. The targeting of civilians and failure to protect civilians and civilian objects are crimes against humanity.
The dropping of 2,000-pound bombs in residential areas of Baghdad during “Shock and Awe” were crimes against humanity. The indiscriminate US attack on Fallujah, which was collective punishment in retaliation for the killing of four Blackwater mercenaries, was a crime against humanity. The destruction of hospitals in Fallujah by the US military, its refusal to let doctors treat patients, and shooting into ambulances were crimes against humanity. Declaring Fallujah a “weapons-free” zone, with orders to shoot anything that moved, was a crime against humanity.
Supreme Court Justice Robert Jackson was the chief prosecutor at the Nuremberg Tribunal. He wrote:
“No political or economic situation can justify the crime of aggression. If certain acts in violation of treaties are crimes they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
Lt. Ehren Watada was correct when he said the war is illegal and he would be party to war crimes if he deployed to Iraq. The orders to deploy were unlawful and Lt. Watada had a duty to disobey them. Although he faces the possibility of a dishonorable discharge, the judge’s grant of a mistrial precludes retrial on the same criminal charges.
MARJORIE COHN is a professor at Thomas Jefferson School of Law, a criminal defense attorney, and president of the National Lawyers Guild.