You don't get made president of the National Lawyers Guild because you have a nice smile. That's not to imply that there's anything wrong with Marjorie Cohn's smile, that is to note she's a legal expert. The week of Ehren Watada's February court-martial, when Judge Toilet (aka John Head) gave the prosecution a do-over by calling a mistrial over the objection of the defense, Cohn was noting that double-jeopardy had long ago attached. The mainstream media appeared to have never heard of the Guild and didn't seem to have Cohn on their speed dial.
They did have Eugene Fidel on speed dial and never tired of utilizing him -- whether he possessed knowledge or not. Terry Gross' Not So Fresh Air felt the way to balance out an interview with Watada was to offer up Fidel which seems to suggest that she saw Fidel as the opposition to war resisters. His remarks only served to underscore that if the media needs a go-to on the UCMJ, Ann Wright (who taught it -- the Law of Land Warfare, at the JFK Special Warfare Center at Fort Bragg) is the resource to utilize. From her testimony at Watada's Article 32 hearing:
During my military service I have instructed military personnel in connection with their duties under FM 27-10. I did this as an instructor at the JFK Special Warfare Center at Fort Bragg. I taught about the Law of Land Warfare for approximately one year. During that time period I was able to explain to soldiers what the obligations and responsibilities of soldiers in an occupation scenario are.
As a part of our overall military training there is a history of service personnel being told that you do not have to follow an illegal order. It comes from the commissions that we take that we are to uphold the lawful orders of our superiors. Implicit in that is that if there is an illegal order you are under no obligation to follow it.
It is not to[o] often that a soldier will say; "I won't follow out that order, it was illegal." But it is part of our tradition that we call upon people in the military to use their brains to distinguish situations.
You don't want personnel who will carry out illegal orders and say that they were told to do it. You want military personnel who will think about what they are doing.
Yes, active duty personnel can be prosecuted for war crimes that they either commit or direct. There are two levels for that prosecution. The first are based on international laws against war crimes and the second is that the United States has codified the international laws on war crimes. This was done in 1996. This law says that you can be prosecuted for committing war crimes.
Right now there is a discussion going on within the Bush administration asking for modification to the domestic law. Because it appears that based on some of the actions in the administration may now fall under violations of that domestic law.
The obligation of someone such as the accused [Lieutenant Watada] who by participating in the current conflict in Iraq would be participating in war crimes would be to stand up and say that he cannot participate in it and that it would be an illegal order.
Under the Nuremberg Principles, both Germans and Japanese were executed for committing war crimes. The initiation of wars of aggression is the supreme crime under the Nuremberg Principles. They are codified in other international bodies of law such as the Geneva Convention.
Watada is not a CO. Watada went public in June of 2006, becoming the first officer to do so, in his opposition to the Iraq War. He had worked for months with the military prior to that in an attempt to devise an alternative route. Though all his suggestions were shot down (including serving in Afghanistan), he continued to act on good faith and only went public after it became clear that what the military was attempting to do was keep him quiet and get him to Iraq -- despite all their talk of working through this 'together,' there were never any intentions of working anything through.
Watada refuses to participate in an illegal war. That's not just his right and duty (and the right and duty of all who serve in the US military), it's also what his training taught him and before Fidel again offers his off-the-cuff 'analysis,' he might need to bone up on what officers are taught. The right-wing went into overdrive providing an echo chamber of what "soldiers" do and do not do. Some of them may have had the military experience they boasted of, none were officers, and none apparent were taught or retained some of the basics. As Ruth noted in August of last year, "The fact of the matter is that the military trains recruits to only follow lawful orders."
The US military attempts to say that, despite the teaching, those serving in the military can't "pick and choose" their wars -- as if Watada wasn't sure whether he was in the mood for lobster or burgers that day. This isn't "picking and choosing," this is Watada using the training and education the military provided him with to make the decisions the military told him were his duty to make.
Despite the training, the military argues that it's not the right of those serving in the military to make the determination. When the Abu Ghraib scandal broke, the talk was of a "few bad apples" and the punishment focused on those in the lowest rank. Those sentenced to prison time may have wished they questioned illegal orders. The military court system failed and provided cover to those higher up. Civilian courts largely take a pass and claim that they can't rule while a war is going on. So exactly who does get to stand up?
Watada's standing. Even though his faced personal attacks and punishments, he's still standing. His service contract expired long ago but the US military extended it because they want to punish him. It's not really about "justice," not even in the screwed up notion that the military courts have of justice.
When Judge Head wrongly ruled a mistrial, not only was Watada's defense ahead, he also provided everyone with the perfect cover to continue avoiding the issues at stake. The mistrial took the case away from war resistance (which the military doesn't want a ruling on) and took it into Constitutional areas. The smartest thing the military could have done to ensure their own stance was to drop the case and say, "Well he got off because of double-jeopardy. Our mistake." Like the press interest in other war resisters, attention on Watada would have faded and the military could tell itself that larger issues came into play and they had to learn how to ensure that didn't happen again. Instead they continued to pursue Watada, keeping the issue and the attention alive.
On Friday, an out presented itself in the civilian court of Judge Benjamin Settle. He issued a stay through October 26th (minimum) and ruled that "the record indicates that petitioner's double-jeopardy claim is meritorious." Had the stay not been issued, Watada's second court-martial would commence this Tuesday.
Prior to the Friday verdict, The Seattle Post-Intelligencer's edition had already been published. In it, they offered the editorial "Watada Court-Martial: Let him go:"
However the defense appeals turn out, we think there is a case for letting Watada leave the Army without further ado. That could be taken as a statement of higher-level confidence, a choice to focus on the larger military mission that President Bush and Gen. David Petraeus insist is making new progress. At a minimum, many of those who oppose the Iraq war would welcome the leniency for someone they view as a person of conscience.
We support Watada's stand. The military brass does not. They should consider dropping the attempts at court-martialing Watada and doing so quickly if only for their own selfish reasons. First, they really don't want to lose in a civilian court and though they may think they'll win, the reality is that they also thought Judge Toilet knew how to preside over a court-martial. Second, as we noted last week, Kat, Ava and C.I. regularly speak to groups of active duty service members. The war resister most widely known and known by name is Ehren Watada and continued attempts to prosecute him will only make him better known. The military cannot clamp down on war resistance within the military (it's spreading like wildfire) but continuing down the path they are on will only fuel the resistance.
As for the mainstream press that largely scoffed at the double-jeopardy issues raised by Cohn and other legal experts, they'd do well to expand their rolodexes.