"The Legal Avenger," an interview of Marjorie Cohn

Covers illegality of Iraq and Afghanistan wars, prosecuting war crimes, the duty to disobey unlawful orders - See:

http://seminal.firedoglake.com/diary/8498

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Bush's Killing Fields: Turning Iraq Into Vietnam

Desperate to shore up support for continuing his unpopular war on Iraq, George W. Bush drew an analogy with Vietnam when he addressed the Veterans of Foreign Wars. "The price of America's withdrawal [from Vietnam] was paid by millions of innocent citizens," Bush declared. But he overlooked the four million Indochinese and 58,000 American soldiers who paid the ultimate price for that imperial war. And the myriad Vietnamese and Americans who continue to suffer the devastating effects of the defoliant Agent Orange the U.S. forces dropped on Vietnam. The 10 years it took to end our war there claimed untold numbers of lives.

Bush cited the "killing fields," referring to the more than one million Cambodians who died after we pulled out of Vietnam. He failed to mention that if Richard Nixon had ended the war by 1969, as the antiwar movement was demanding, the war wouldn't have extended into Cambodia. Secret U.S. carpet bombing of Cambodia destroyed that country, enabling Pol Pot and the Khmer Rouge to come to power. Nixon, too, had warned of a bloodbath in Vietnam to justify continuing his war.

Contrary to the picture Bush painted, Vietnam is a unified, stable country that doesn't threaten the region; it has become a trading partner of the United States.

In his desperation to rationalize the death and destruction he is wreaking in Iraq, Bush credited the United States with the great progress South Korea and Japan have made. He didn't say that the people of North and South Korea seek to reunify their country but the United States stands in the way. And Bush neglected to add that his government is pressuring Japan to repeal Article 9 of its Peace Constitution which now forbids the aggressive use of military force.

George Bush also reiterated that Iraq is "the central front" of the war on terror. But for his invasion, war and occupation of Iraq, however, al Qaeda wouldn't be there.

Bush claimed "our troops are seeing this progress that is being made on the ground." Perhaps the President didn't read the elegant op-ed that seven infantrymen and noncommissioned officers penned in the New York Times last week. "The claim that we are increasingly in control of the battlefield in Iraq is an assessment arrived at through a flawed, American-centered framework," they wrote. The soldiers noted the two million Iraqis in refugee camps and close to two million more who are internally displaced. "Four years into our occupation, we have failed on every promise, while we have substituted Baath Party tyranny with a tyranny of Islamist, militia and criminal violence."

The only reason we stayed in Vietnam as long as we did was to avoid the U.S. superpower from being perceived as the "loser." American involvement in Vietnam finally ended because our soldiers refused to fight, our people took to the streets in record numbers, Nixon was weakened by his impending impeachment, and the North Vietnamese - unlike the government in the South - won the hearts and minds of the Vietnamese people.

Congress has no more will to end the Iraq War than it did the Vietnam War. It was one year after our troops came home that Congress finally cut the funding for all support of the South Vietnamese government; Nixon didn't veto the bill because he needed insurance against impeachment. There is no substantial support in Congress or among the leading presidential candidates to bring all the troops home and disband the mega-bases Bush has built in Iraq.

Resistance to the Iraq War will continue to grow within the military. Like the Vietnamese, the Iraqis will be instrumental in ending Bush's war. The soldiers pegged it in their op-ed: Iraqis "will soon realize that the best way to regain their dignity is to call us what we are - an army of occupation - and force our withdrawal."

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Conscientious Objector Faces Court-Martial

On March 6, the court-martial will begin in Germany for Army Specialist Augustín Aguayo, who faces up to seven years in prison for refusing to deploy to Iraq for a second tour of duty. His petition for habeas corpus was denied by a three-judge panel of the D.C. Circuit Court of Appeals on February 16. Judges Sentelle and Randolph were the same jurists who recently upheld the provision of the Military Commissions Act that strips habeas corpus rights from Guantánamo detainees.

Before his first deployment to Iraq, Aguayo discovered he was a conscientious objector. When he began to train in arms, Aguayo had great difficulty firing at human-shaped silhouettes and stabbing human mannequins. "During basic training," he recalls, "I felt guilty when I had to pick up and hold a weapon and practice killing with it."

When Aguayo and his wife, Helga, saw an article on the Internet about conscientious objector Stephen Funk, they realized that Aguayo was a conscientious objector.

After he applied to be a conscientious objector three years ago, Aguayo was sent to Iraq as a medic. He refused to load his gun. But instead of treating him as a non-combatant, he was given guard duty and placed in dangerous positions with an unloaded weapon.

A week after Aguayo's habeas corpus petition was denied on August 24, 2006, his unit was slated to deploy to Iraq for the second time. On September 1, 2006, Aguayo went AWOL and missed his unit's deployment to Iraq. He turned himself in to the Army the following day.

Rather than court-martialing Aguayo, Army personnel told him he would be going to Iraq anyway, even if they had to handcuff him and shackle him to the plane. Aguayo fled from the military base in Germany and turned himself in once again on September 26, 2006. He was shipped back to Germany where he will be tried by court-martial this week.

In his statement to the Court of Appeals, Aguayo wrote: "In my last deployment, I witnessed how soldiers dehumanize the Iraqi people with words and actions. I saw countless innocent lives which were shortened due to the war. I still struggle with the senselessness of it all – Iraqi civilians losing their lives because they drove too close to a convoy or a check point, soldiers' being shot by mistake by their own buddies, misunderstandings (due to the language barrier) leading to death. This is not acceptable to me. It makes no sense that to better the lives of these civilians they must first endure great human loss. This, too, is clear and convincing evidence to me that all war is evil and harmful."

"I also oppose war," Aguayo added, "because I have seen first-hand the direct result of deployments to war zones. As a result of Operation Iraqi Freedom II, I have seen many veterans whose lives have been shattered. Many men came back with missing parts, and countless physical and emotional scars, such as Post Traumatic Stress Disorder. I have personally seen my comrades come back to commit suicide, drink themselves to death, and develop a strong addiction to drugs. It is obvious to me that these men’s lives were destroyed by war. What participation in war does to our own soldiers is another reason why war is fundamentally immoral and wrong."

Aguayo received positive recommendations from the chaplain and Capt. Sean Foster, who held Aguayo's conscientious objector hearing in Tikrit, Iraq. They both found Aguayo's beliefs to be sincere and recommended he be granted conscientious objector status.

But the Court of Appeals sided with four officers who recommended Aguayo's petition be denied. None of the four interviewed Aguayo. The appellate court mentioned that Aguayo was agnostic and cited a report that said Aguayo lacks a "religious foundation" to be a conscientious objector.

Aguayo, who was born in Mexico, is a naturalized U.S. citizen. On February 23, the Mexican legislature condemned the military proceedings pending against Aguayo. Senator Silvano Aureoles called Aguayo "a prisoner of conscience and one more victim of president George W. Bush's militaristic eagerness."

Augustín Aguayo is represented by National Lawyers Guild lawyers James Klimaski, Peter Goldberger, and James Feldman. For more information on Aguayo's case, see http://www.aguayodefense.org/.

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Mistrial at Court Martial: Watada Beats the Government

When the Army judge declared a mistrial over defense objection in 1st Lt. Ehren Watada's court martial, 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.

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First Officer Publicly Resists War

Yesterday, US Army First Lieutenant Ehren Watada became the first officer to publicly state his refusal to obey an order to deploy to Iraq. Lieutenant Watada said at a 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 asked me to speak about the legality of the war at his press conference.

The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. 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.
US Army First Lieutenant Ehren Watada

I cited the Nuremberg Charter, which set forth the three most serious crimes: crimes against the peace, war crimes, and crimes against humanity. The US Army Field Manual 27-10, art. 28, incorporates the prohibition against these three crimes. The United States is committing a crime against the peace, war crimes, and crimes against humanity in Iraq.

The United States Is Committing a Crime Against the Peace in Iraq

The Nuremberg Tribunal called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

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 to give its stamp of approval. 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.

Moreover, the Constitution gives only Congress, not the President, the authority to declare war. Congress cannot delegate that authority to the President. Even if Congress could delegate the war power to the President, it cannot authorize the President to execute an aggressive war.

The United States Is Committing War Crimes in Iraq

All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment.

Violations of the laws of war, memorialized in the Hague and Geneva Conventions, constitute war crimes.
All four Geneva Conventions have the same article 3, frequently referred to as Article 3 Common. Its terms apply to everyone, not just prisoners of war. It prohibits violence to life and person, murder, mutilation, cruel treatment, torture, and outrages upon personal dignity, particularly humiliating and degrading treatment. These prohibitions are memorialized in the Army Field Manual 27-10, art. 506. The Pentagon is trying to remove Article 3 Common from the newly revised instructions that go with the Manual. The implication is that the Defense Department intends to treat prisoners inhumanely.

Grave breaches of the Geneva Conventions constitute war crimes, for which individuals can be punished under the US War Crimes Act. Willful killing, torture or inhuman treatment, and willfully causing great suffering or great bodily harm 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 at Haditha and in other Iraqi cities are 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 inferiors were committing war crimes and failed to stop or prevent them. However, it is unlikely that Attorney General Alberto Gonzales will charge Bush, Cheney or Rumseld with war crimes.

The United States Is Committing Crimes Against Humanity in Iraq

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.

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.
Supreme Court Justice Robert Jackson

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."

The Uniform Code of Military Justice, in articles 90-92, sets forth the duty of military personnel to obey lawful commands. The Nuremberg Principles, which are part of US law, provide that all military personnel have the obligation not to obey illegal orders. The Army Field Manual 27-10, sec. 609 and UCMJ, art. 92, incorporate this principle. Article 92 says: "A general order or regulation is lawful unless it is contrary to the Constitution, the law of the United States …"

The Bush administration is committing crimes against the peace, war crimes and crimes against humanity in Iraq. Lieutenant Ehren Watada is correct when he says this is an illegal war. I salute his courage.

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Signing Your Life Away

A young man in the Delayed Entry Program changed his mind about enlisting. The recruiter said to him that Sept. 11 changed everything -
"If you don't report, that's treason and you will be shot."
I helped him to obtain a discharge.
-Bill Galvin, Counseling Coordinator, Center on Conscience and War

Like the military recruiter trying to get the youth to enlist in the military, George Bush invoked the September 11 terrorist attacks in his June 28 recruiting speech - six times. Bush ended his address with a recruiting pitch: "I thank those of you who have re-enlisted in an hour when your country needs you. And to those watching tonight who are considering a military career, there is no higher calling than service in our armed forces."

Although there is, and never has been, any evidence of a link between the Sept. 11 attacks and Saddam Hussein's regime, Bush desperately uses the Sept. 11 tragedy to pump up support for his increasingly unpopular misadventure in Iraq.

"The president's frequent references to the terrorist attack of September 11 show the weakness of his arguments," House Democratic leader Nancy Pelosi said. "He is willing to exploit the sacred ground of 9/11, knowing that there is no connection between 9/11 and the war in Iraq."

Indeed, Sen. Russ Feingold (D-Wis) said it's because of the lessons of the Sept. 11 attacks that he opposes Bush's approach to keeping the troops in Iraq without any timetable for withdrawal: "The US military presence in Iraq has become a powerful recruiting tool for terrorists, and Iraq is now the premier training ground and networking venue for the next generation of jihadists."

Bush is in denial about the recruiting shortfall. In his speech, he intoned, "Some Americans ask me, if completing the mission is so important, why don't you send more troops? If our commanders on the ground say we need more troops, I will send them. But our commanders tell me they have the number of troops they need to do their job."

Maj. Chris Kennedy of the Third Armored Cavalry Regiment indicates otherwise. "We have a finite number of troops," he said. "But if you pull out of an area and don't leave security forces in it, all you're going to do is leave the door open for them to come back. This is what our lack of combat power has done to us throughout the country."

As American troops continue to die - more than 1,730 at latest count - in Bush's war-that-never-had-to-be, recruiters are having an increasingly tough time getting kids to sign up. Although the Army met its monthly recruiting goal in June, it still faces a nearly insurmountable battle to meet its annual quota. The active-duty Army is still 7,800 recruits short of the 80,000 enlistees it seeks to send to boot camp, with only three months left in the recruiting year. This will be the first time since 1999 that the Army will have missed its annual enlistment quota.

The Army provides 105,000 of the 139,000 US troops currently in Iraq. Recruiters for the Marines, which supplies about 22,000 troops, report spending an average of 12 hours per recruit they enlist. This is 3 hours more than they spent only a year ago.

Over $3 billion a year is spent on recruitment, or about $14,000 per recruit. So frantic are recruiters to meet their goals, many have signed up people with serious mental diseases, and have ignored medical and police records of potential recruits.

"Recruiters must meet quotas," says Kathleen Gilberd, co-chair of the National Lawyers Guild's Military Law Project. "Those who fail to do so face transfer to much less desirable duties, like combat, as well as poor performance evaluations, which can affect promotion and careers. While recruiter fraud and misconduct have been around for years," according to Gilberd, "the recruitment problems of the war in Iraq have resulted in more lies as well as more complaints about recruiter misconduct."

The Army reserve has upped its eligible age limit to 39, and the Army is increasingly recruiting high school dropouts and kids with lower scores. Non-citizens are being targeted. The military is now offering expedited naturalization with relaxed requirements to those on active duty status on or since September 11, 2001.

Enlistees are given a date to report within 365 days of the day they sign up. This is called the Delayed Entry Program (DEP). If, for any reason, they change their mind within that time, they don't have to go. A counselor with the San Diego Military Counseling Project told me that recruiters lie. They do underhanded things to circumvent the DEP. A recruiter might show up at the recruit's job and tell his boss he isn't patriotic and get the recruit fired. On the day before the recruit is due to report, the recruiter will tell him to come down to the office to complete some paperwork. The recruit will then be kept there overnight and sent directly to boot camp the next day. This is kidnapping.

A recruiter told the New York Times recently, "The problem is that no one wants to join. We have to play fast and loose with the rules just to get by."

The Pentagon has recently signed a contract with an outside marketing firm to compile an extensive database on 30 million 16- to 25-year-olds to help recruiters target potential enlistees. The data will contain detailed information about high school students ages 16 to 18, all college students, and Selective Service System registrants. Statistics collected include Social Security numbers, e-mail addresses, grade-point averages and ethnicities of possible recruitment targets.

The No Child Left Behind Act, which Bush signed in 2002, aims to ensure that no child is left behind when the ships leave for Iraq. It allows the Pentagon to gather home addresses and telephone numbers of public-school students. Schools must provide military recruiters with this data or risk losing millions in federal education funding. The Pentagon's new database, however, will include much more extensive information on these kids.

But the Act also contains an "opt out" clause which allows parents to sign a form preventing schools from providing information about their children to the military.

Some recruiters say the greatest single obstacle to military recruitment is parents. "The parents of the kids being sought by recruiters to fight this unpopular war," wrote the New York Times' Bob Herbert, "are creating a highly vocal and potentially very effective antiwar movement." This is not surprising in light of the recent Washington Post-ABC News poll that showed 60 percent of Americans think the Iraq war has become a quagmire. A Department of Defense survey last November found that only 25 percent of parents would recommend military service to their children, down from 42 percent the year before.

Rep. Jim McDermott (D-Wash.) said of the recruiters, "They're not going to all the schools. They're going to the schools where they figure the kids will have less change to go to college. It's an insidious kind of draft, quite frankly." McDermott faults the military for enticing students with talk of patriotism, adventure and college funds, instead of giving them a realistic view of combat. He is among those in Congress trying to change the law so that students "opt-in" for recruitment, so the presumption would be against the schools providing the data to the Pentagon.

"There's nothing dishonorable with serving in the military," said McDermott, a psychiatrist who served stateside during the Vietnam War. "But it ought to be done with your eyes open."

A woman named Kathie who posted on the Military Families Speak Out (MFSO) website tells of her 17-year-old son who joined the Marines through the DEP just after he finished his junior year in high school. But, "somehow, all the glossy brochures and videos about the Marines had failed to mention the dehumanization of military training and war," his mother wrote. Her son has filed for conscientious objector status.

Charlie C. Carlson II, Command Sergeant-Major USA Ret., also posted on the MFSO website. He wrote: "My son recently returned from the Iraq War, his third war, and, being fed up with Bush lies and back-to-back-deployments, applied to be discharged from his 'indefinite enlistment' status. Six days later he was under investigation for making 'disloyal comments' about George Bush … which amounted to saying in general conversation with other soldiers that 'Bush should never have started the war' and 'Bush is no military leader.'" Although "his 14 years of military service up to this point was flawless, he was an excellent soldier, … he was demoted and sentenced to 45 days of extra duty. His crime involved nothing more than expressing his personal political opinion as guaranteed under the Bill of Rights, the very document that he had risked his life defending."

The Military Law Task Force's GI Rights Hotline received 32,000 calls in 2004 from soldiers and sailors seeking information about conscientious objector claims, going AWOL, disability, Post Traumatic Stress Disorder, and general advice about alternatives to remaining in the military. Since the beginning of 2005, the Hotline has fielded about 3,000 calls per month. The GI Rights Hotline number is 1-800-394-9544.

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Navy Judge Finds War Protest Reasonable

"I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
-- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes' court-martial

In a stunning blow to the Bush administration, a Navy judge gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing orders to board the amphibious assault ship Bonhomme Richard before it left San Diego with 3,000 sailors and Marines bound for the Persian Gulf on December 6th. Lt. Cmdr. Robert Klant found Pablo guilty of missing his ship's movement by design, but dismissed the charge of unauthorized absence. Although Pablo faced one year in the brig, the judge sentenced him to two months' restriction and three months of hard labor, and reduced his rank to seaman recruit.

"This is a huge victory," said Jeremy Warren, Pablo's lawyer. "A sailor can show up on a Navy base, refuse in good conscience to board a ship bound for Iraq, and receive no time in jail," Warren added. Although Pablo is delighted he will not to go jail, he still regrets that he was convicted of a crime. He told the judge at sentencing: "I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is illegal."

Pablo maintained that transporting Marines to fight in an illegal war, and possibly to commit war crimes, would make him complicit in those crimes. He told the judge, "I believe as a member of the armed forces, beyond having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme law of the land. Both of these higher duties dictate that I must not participate in any way, hands-on or indirect, in the current aggression that has been unleashed on Iraq."

Pablo said he formed his views about the illegality of the war by reading truthout.org, listening to Democracy Now!, and reading articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi Annan's statements that the war is illegal under the UN Charter, and material on the Nuremberg and Tokyo tribunals.

I testified during the sentencing hearing at Pablo's court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by US forces. My testimony corroborated the reasonableness of Pablo's beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the US War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.

I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...." Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

I concluded that the Iraq war is illegal. US troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq - to fight in an illegal war, and possibly to commit war crimes - Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.

On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the US wars in Yugoslavia and Afghanistan also violated the UN Charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

The Navy prosecutors asked the judge to sentence Pablo to nine months in the brig, forfeiture of pay and benefits, and a bad conduct discharge. Lt. Brandon Hale argued that Pablo's conduct was "egregious," that Pablo could have "slinked away with his privately-held beliefs quietly." The public nature of Pablo's protest made it more serious, according to the chief prosecuting officer.

But Pablo's lawyer urged the judge not to punish Pablo more harshly for exercising his right of free speech. Pablo refused to board the ship not, as many others, for selfish reasons, but rather as an act of conscience, Warren said.

"Pablo's victory is an incredible boon to the anti-war movement," according to Warren. Since December 6th, Pablo has had a strong support network. Camilo Mejia, a former Army infantryman who spent nine months in the brig at Fort Sill, Oklahoma, for refusing to return to Iraq after a military leave, was present throughout Pablo's court-martial. Tim Goodrich, co-founder of Iraq Veterans against the War, also attended the court-martial. "We have all been to Iraq, and we support anyone who stands in nonviolent opposition," he said. Fernando Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq, came to defend Pablo.

The night before his sentencing, many spoke at a program in support of Pablo. Mejia thanked Pablo for bringing back the humanity and doubts about the war into people's hearts. Sheehan, whose son, K.C., died two weeks after he arrived in Iraq, said, "I was told my son was killed in the war on terror. He was killed by George Bush's war of terror on the world."

Aidan Delgado, who received conscientious objector status after spending nine months in Iraq, worked in the battalion headquarters at the Abu Ghraib prison. Confirming the Red Cross's conclusion that 70 to 90 percent of the prisoners were there by mistake, Delgado said that most were suspected only of petty theft, public drunkenness, forging documents and impersonating officials. "At Abu Ghraib, we shot prisoners for protesting their conditions; four were killed," Delgado maintained. He has photographs of troops "scooping their brains out."

Pablo's application for conscientious objector status is pending. He has one year of Navy service left. If his C.O. application is granted, he could be released. Or he could receive an administrative discharge. Worst case scenario, he could be sent back to Iraq. But it is unlikely the Navy will choose to go through this again.

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