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."

What MLK taught us about peace

It is tempting after great leaders pass away to focus on the positions they took that are now widely applauded, and to ignore the more challenging stances--those that make us question what we are doing now and make us uncomfortable.

On this national holiday for Rev. Dr. Martin Luther King, Jr., I reread the speech he made at Riverside Church on April 4, 1967 -- a prophetic speech opposing the continued U.S. involvement in Vietnam. The speech could have been written about Iraq -- one would simply have to substitute "terrorism" for "communism" as the threat used to justify actions that King understood to be morally wrong.

In his speech, King calls for religious leaders to take a stand to end the Vietnam War, but he goes deeper, showing his understanding of the dynamics that continue to create wars today.

"I say we must enter the struggle, but I wish to go on now to say something even more disturbing. The war in Vietnam is but a symptom of a far deeper malady within the American spirit, and if we ignore this sobering reality we will find ourselves organizing clergy- and laymen-concerned committees for the next generation. ... We will be marching ... and attending rallies without end unless there is a significant and profound change in American life and policy."

What is the nature of that sobering reality? Here's more from the Riverside speech:

"In 1957 a sensitive American official overseas said that it seemed to him that our nation was on the wrong side of a world revolution. During the past ten years we have seen emerge a pattern of suppression which now has justified the presence of U.S. military "advisors" in Venezuela. This need to maintain social stability for our investments accounts for the counter-revolutionary action of American forces in Guatemala. It tells why American helicopters are being used against guerrillas in Colombia and why American napalm and green beret forces have already been active against rebels in Peru. It is with such activity in mind that the words of the late John F. Kennedy come back to haunt us. Five years ago he said, "Those who make peaceful revolution impossible will make violent revolution inevitable."

"Increasingly, by choice or by accident, this is the role our nation has taken -- the role of those who make peaceful revolution impossible by refusing to give up the privileges and the pleasures that come from the immense profits of overseas investment.

"I am convinced that if we are to get on the right side of the world revolution, we as a nation must undergo a radical revolution of values. We must rapidly begin the shift from a "thing-oriented" society to a "person-oriented" society. When machines and computers, profit motives and property rights are considered more important than people, the giant triplets of racism, materialism, and militarism are incapable of being conquered.

"A true revolution of values will soon cause us to question the fairness and justice of many of our past and present policies. ... True compassion is more than flinging a coin to a beggar; it is not haphazard and superficial. It comes to see that an edifice which produces beggars needs restructuring. A true revolution of values will soon look uneasily on the glaring contrast of poverty and wealth. With righteous indignation, it will look across the seas and see individual capitalists of the West investing huge sums of money in Asia, Africa and South America, only to take the profits out with no concern for the social betterment of the countries, and say: "This is not just." It will look at our alliance with the landed gentry of Latin America and say: "This is not just." The Western arrogance of feeling that it has everything to teach others and nothing to learn from them is not just. A true revolution of values will lay hands on the world order and say of war: "This way of settling differences is not just." This business of burning human beings with napalm, of filling our nation's homes with orphans and widows, of injecting poisonous drugs of hate into veins of people normally humane, of sending men home from dark and bloody battlefields physically handicapped and psychologically deranged, cannot be reconciled with wisdom, justice and love. A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.

"America, the richest and most powerful nation in the world, can well lead the way in this revolution of values. There is nothing, except a tragic death wish, to prevent us from reordering our priorities, so that the pursuit of peace will take precedence over the pursuit of war.
....

"We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. In this unfolding conundrum of life and history there is such a thing as being too late. ... Over the bleached bones and jumbled residue of numerous civilizations are written the pathetic words: "Too late." ...

"We must move past indecision to action. We must find new ways to speak for peace in Vietnam and justice throughout the developing world -- a world that borders on our doors. If we do not act we shall surely be dragged down the long dark and shameful corridors of time reserved for those who possess power without compassion, might without morality, and strength without sight.

"Now let us begin. Now let us rededicate ourselves to the long and bitter -- but beautiful -- struggle for a new world. This is the calling of the sons of God, and our brothers wait eagerly for our response. Shall we say the odds are too great? Shall we tell them the struggle is too hard? Will our message be that the forces of American life militate against their arrival as full men, and we send our deepest regrets? Or will there be another message, of longing, of hope, of solidarity with their yearnings, of commitment to their cause, whatever the cost? The choice is ours, and though we might prefer it otherwise we must choose in this crucial moment of human history."

The tide of public opinion has turned against the escalation of war in Iraq. With continued pressure from the American people, with some courage among our leadership, we can end the tragic occupation of Iraq. We would do well to learn the lessons King articulated almost 40 years ago, so this time so we don't just end a war, we build a world in which all can live in peace.