Ruth: First, let me thank the members, and two visitors, who e-mailed to say they'd missed the report the last two weekends. Thank you. I did enjoy working with The Third Estate Sunday Review the last two weekends. As anyone who saw my granddaughter's photos in the gina & krista round-robin should be able to surmise, the nine days in California with everyone were also a great deal of fun.
What wasn't fun was learning of the recommendation Lieutenant Colonel Mark Keith made regarding the Article 32 hearing of Lieutenant Ehren Watada. Tracey came over with Elijah a little after six a.m. Friday and was talking about it. I did not check my e-mail that morning and usually do not until I have had my first cup of coffee so I had missed the heads up e-mail from C.I. and the gina & krista round-robin. Later, when C.I. faxed me the report, I read it, while Elijah was napping and several things stood out.
The Third Estate Sunday Review will be spotlighting at least one thing and, luckily, the thing that stood out to me the most was the testimony of retired Army Colonel Ann Wright.
In today's Seattle Times, Mr. Hal Bernton writes: "Keith concluded that it would be "very difficult for Army officers to determine the legality of combat operations (nor should they attempt to do so)." That was a frightening conclusion for me. "Nor should they attempt to do so" had me recalling the horrors that emerged during the Nuremberg Trials. Perhaps, as a Jewish woman, my natural response is to go to that when I read that officers have no obligation to determine the legality of the actions they will be taking part in?
But the "I was only following orders" 'defense' is not a defense that was accepted at Nuremberg. Nor was it accepted during Vietnam when Lieutenant William Calley was court-martialed for his actions and the actions of those serving under him during the March 16, 1968 My Lai Massacre. The military court refused to recognize that 'defense' as a valid one. Lieutenant Calley was told, by the military justice system, that it was his responsibility to only follow legal orders. In the case of Lieutenant Watada, Lieutenant Colonel Keith decided that determining the legality of the orders was not permissable. In one instance, you have Lieutenant Calley held accountable for failure to use his judgement and, in the current instance, you have Lieutenant Watada held accountable for using his judgement.
Which is it?
The fact of the matter is that the military trains recruits to only follow lawful orders. This was the point retired Colonel Ann Wright stressed in her testimony at Lieutenant Watada's Article 32 hearing on August 17th:
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 agression is the supreme crime under the Nuremberg Principles. They are codified in other international bodies of law such as the Geneva Convention.
FM 27-10 and the Law of Land Warfare are the same code or law. Professor Nile Stanton of the University of Maryland University College has kindly posted the code online. The section that I was searching out was the following:
Section IV. DEFENSES NOT AVAILABLE
509. Defense of Superior Orders
a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful. In all cases where the order is held not to constitute a defense to an allegation of war crime, the fact that the individual was acting pursuant to orders may be considered in mitigation of punishment.
b. In considering the question whether a superior order constitutes a valid defense, the court shall take into consideration the fact that obedience to lawful military orders is the duty of every member of the armed forces; that the latter cannot be expected, in conditions of war discipline, to weigh scrupulously the legal merits of the orders received; that certain rules of warfare may be controversial; or that an act otherwise amounting to a war crime may be done in obedience to orders conceived as a measure of reprisal. At the same time it must be borne in mind that members of the armed forces are bound to obey only lawful orders (e. g., UCMJ, Art. 92).
510. Government Officials
The fact that a person who committed an act which constitutes a war crime acted as the head of a State or as a responsible government official does not relieve him from responsibility for his act.
511. Acts Not Punished in Domestic Law
The fact that domestic law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
Leaving aside issues of Nazi actions during WWII which some might label "explosive," but I would argue are all too quickly forgotten, we are left with retired Colonel Ann Wright's testimony that it is the soldier's obligation to follow only lawful orders (which would require a deterimination on the part of the individual), the law she was teaching which backs her up, and the case of Lieutenant Calley who was court-martialed for his actions and informed that he had failed to refuse unlawful orders.
Are you confused? The military legal system appears to be. The message that Lieutenant Colonel Mark Keith appears to be endorsing is follow all orders but, if it later turns out that they were illegal, you are on your own and will take full responsibility. At best, like with Lieutenant Calley, the War Monger in the oval office may pardon you after you are convicted.
What is the message? Why teach the obligation to follow only legal orders, why refute "I was only following orders" as a defense and then punish Lieutenant Ehren Watada for doing just that while advising him that it is not his place to make such a determination when, in fact, the invididual who obeys the unlawful order is the one who will be held responsible by the military justice system?
While we try to sort that out, Lieutenant Watada's father, Bob Watada, is speaking out for his son. Today and tomorrow, you can attend the following in the San Francisco Bay Area:
Educational & Cultural Event
Berkeley Friends Church;
1600 Sacramento St., Berkeley
Contact: Betty Kano 510-684-0239
65-Ninth St., SF
Contact: Martha Hubert 415-647-1119
For those unable to attend, Wednesday, on KPFA's The Morning Show, Philip Maldari interviewed Bob Watada and you can listen to archived broadcast online, free of charge. Those unable to listen online, due to physical issues, stream issues or speaker issues, can also read Wednesday's snapshot which offers an overview of the discussion.
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