Who should be on trial? Citizens' hearing on legality of the war

On February 5, Lt. Ehren Watada of the U.S. Army will face a military court in Fort Lewis, Washington. He is charged with "missing movement" for his refusal to deploy to Iraq, a war Lt. Watada says is immoral and illegal. And he is charged with "conduct unbecoming of an officer" for his outspoken stance on the war.

But is it Watada or the US government that is breaking the law? Who should be on trial?

"My participation would make me party to a war crime," Watada says. Refusing orders to deploy to Iraq is my duty as an officer of the U.S. military.

Lt. Watada will not be able to make this argument at his court martial. A January 16 ruling by the presiding judge, Lt. Col. John Head prohibits evidence on the legality of the war. Nor will Watada be allowed to argue that his objection to the war is protected speech that should be free from official censorship.

A democracy only functions with checks and balances. Since the courts and Congress have so far given the Bush administration free reign to pursue the invasion and occupation of Iraq, the task of examining Lt. Watada's claims about the illegality of the war has fallen to ordinary citizens. This weekend, a citizens' tribunal convened in Tacoma to take up this question.

The panel hearing the testimony was made up of ordinary Americans -- veterans of past and present conflicts, families of military members, and people who work in government, labor, health care, academia, and the church. Witnesses included Daniel Ellsberg, who released the Pentagon Papers on the Vietnam War in 1971; Richard Falk and Benjamin Davis, experts in international law; veterans of past wars and of the Iraq War; a former UN official, and others.

Geoffrey Millard, a non-commissioned officer who served 13 months in Iraq, and a total of eight years in the military, began his testimony with a confession. Soldiers are trained that they should refuse illegal orders, he said. "I failed in that obligation. Just like [Adolf] Eichmann, I did my duty, filing papers, preparing briefs, and meanwhile thousands died around me," he said. The defense offered by Eichmann, a high-ranking Nazi and SS officer, was that he was "just following orders."

The Nuremberg Principles which resulted from the 1945-1946 Nuremberg Trials makes clear that this is no defense. "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him," reads Principle IV.

"I too followed illegal orders when I deployed to Iraq," Millard said.

It was after hearing of Lt. Watada's case that Millard decided to act on his belief that the U.S. war in Iraq is illegal and immoral, and to resign.

Lt Watada acknowledged that he may pay dearly for the stand he is taking. "I took an oath to defend the Constitution," he said. "Sometimes that commitment comes with a price."

Lt. Watada is the first commissioned officer to publicly refuse to deploy to Iraq. He earlier served with distinction in South Korea. When he reached the conclusion that the war in Iraq is both illegal and unconstitutional, he asked to be reassigned or to be allowed to resign. In June 2006, after his requests had been repeatedly denied, he refused to deploy to Iraq with his Stryker Brigade unit.

"I believe it is a travesty of justice that I will not be allowed to introduce evidence about the illegality of the war," Watada said. "It's also unAmerican."

Responsibility for war crimes does not just rest with the soldier in combat. Any who provide support for an illegal war are also complicit, including those who pay taxes that pay for the war.

And, said Daniel Ellsberg, so are those Democrats who are content to let the disaster in Iraq catapult them into the White House, but don't act to stop it.

Ellsberg believes the situation could get far worse; the U.S. is trying to provoke Iran into an attack so they have the pretext to start a war with Iran, he said.

It is a safe vote in Congress to vote on a non-binding resolution against the war when public opinion is so clearly opposed to the war, he said. Congress needs to do more; it is time Congress reclaim its constitutional war powers and stop this war.

And for the thousands who oppose the war but who wait for someone else to take action, Ellsberg calls on us to not just oppose the war but to "cast our whole vote," to end the war.

Watada faces up to six years in prison for "missing movement" and "conduct unbecoming of an officer."

"Everything I've done since I've announced publicly why I'm refusing to go to this war is an attempt to appeal to the American people to fulfill their civic obligation," he said. " The people have the power to stop the war."