Deserting an Illegal War

June 28, 2007, The Associated Press reported that America faced a desertion crisis in its military. “Soldiers strained by six years at war are deserting their posts at the highest rate since 1980, with the number of Army deserters this year showing an 80% increase since the United States invaded Iraq in 2003”. A deserter is one who intends to remain absent from the military permanently, or leaves his unit to avoid hazardous duty during times of war. More than 20,000 military personnel have Dropped-From-the-Rolls (deserted) since 9/11.

Also, June 28, 2007, under the banner, “Military makes little effort to punish deserters”, AP reported that “174 troops were court-martialed by the Army last year for desertion—a figure that amounts to just 5% of the 3,301 soldiers who deserted in fiscal year 2006. Army Chief of Staff Gen. George Casey acknowledged that the Army “has been stretched nearly to the breaking point by the combat,” but some deserters are simply allowed to return to their units, while the majority are discharged in non-criminal proceedings on less-than-honorable terms. “The Pentagon does little more than enter deserters’ names into an FBI national criminal database,” the AP reported.

Brandon Hughey, a deserter who moved to Canada, told Scott Pelley (60 Minutes, 12/06/04), “I felt (war) was necessary if (Iraq) did have these weapons, and they could end up in our cities and threaten our safety”. While Hughey was in basic training, he received little outside news, but he did learn that a soldier who obeyed an “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.” (http://usmilitary.about.com/cs/militarylaw1/a/obeyingorders.htm)

After basic, Hughey learned “that they found no weapons of mass destruction. They were beginning to come out and say it’s not likely that we will find any—and the claim that they made about ties to al Qaeda was coming up short, to say the least. It made me angry, because I felt our lives were being thrown away as soldiers.…”

Hughey’s lawyer, Jeffry House told 60 Minutes, “People should have a right to say, ‘I’m not fighting in that war. That’s an illegal war…And anyone who says soldiers should go to jail if they don’t fight in an illegal war is persecuting them. The United States is supposed to comply with treaty obligations like the U.N. Charter, but they don’t”. Making war for regime change is a violation of the Charter. “When the president isn’t complying with the Geneva Accords or with the U.N. Charter, are we saying, ‘Only the soldier who signed up when he was 17—that guy has to strictly comply with contract? The president, he doesn’t have to?’ I don’t think so. I don’t think that is fair.”

Army Lt. Ehren Watada, the first commissioned officer to refuse deployment to Iraq, said he doesn’t object to war and volunteered to go to Afghanistan but considered war on Iraq illegal. Under the doctrine of command responsibility, serving in Iraq would make him party to war crimes. Already low-ranking soldiers at Abu Ghraib who had tortured, abused and degraded POWs had been called “bad apples” by the president, stripped of rank, dishonorably discharged, prosecuted and imprisoned for following orders the president had authorized.

Maj. General Taguba was assigned to investigate the horrors of Abu Ghraib but was not allowed to investigate anyone at a higher rank than himself. He knew immediately that Military Police had not invented the torture and degradation that included rape and sodomy. These prisoners were not suspected terrorists but POWs in a war that permitted no Prisoners of War. After he was ordered to retire Taguba wrote that the rot was not in Abu Ghraib but in the White House.

The Army turned down Lt. Watada’s request to resign and charged him with two counts of Conduct Unbecoming an Officer and a Gentleman (for public statements) and one count for Missing Movement (refusing to deploy to Iraq). (Gannett, 8/05/08)

Eric Seitz, Watada’s civilian attorney said, “What the Army has clearly tried to do with these charges (of Conduct Unbecoming) is send out a message to those in the military, that if you criticize the war and if you criticize the decisions that were made to bring the United States into this war, that you, too, could be charged with disloyalty, contemptuous remarks and disrespect for higher officers, and in this case, specifically in this charge, the President.” (Democracy Now, 7/7/06)

U.S. Supreme Court Justice Robert L. Jackson, Chief U.S. Prosecutor at the Nuremberg Tribunals (August 12, 1945) said, “For the first time, four of the most powerful nations have agreed…upon the principle of individual responsibility for the crime of attacking the international peace…And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.”

“In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy” of the United States. (Hasting Center Report, March-April 1991)

Over the prosecutor’s objections, Seitz and Watada’s military lawyer, Capt. Mark Kim, called three witnesses to question the legality of the war: University of Illinois Professor of international law Francis Boyle, Former United Nations Undersecretary Denis Halliday, and Army Colonel Ann Wright (ret.), who retired from the state department in March 2003, in protest of the coming invasion. All three testified that the war was illegal because it was not authorized by the U.N. Security Council, and that Congress approved the war on the basis of faulty intelligence. Therefore Watada was within his rights to refuse participation in it. (Seattle Post Intelligencer, 8/18/06).

Watada was court-martialed in February 2007, with the case ending in a mistrial when Military Judge John Head ruled that the military justice system could not resolve whether the deployment order was unlawful. (Seattle Post-Intelligencer, 2/7/07) After the mistrial, the Obama Justice Department asked the court to drop the case which would require the Justice Department to decide whether the war on Iraq was a war crime. Among the organizations supporting Watada were the ACLU, Iraq Veterans against the War and Veterans for Peace.

“What was approved was basically his request to resign in lieu of a general court-martial for the good of the service,” said spokesman Joseph Piek at Ft. Lewis, Wash., where Watada has been working at a desk job. (LA Times, 9/19/09)

It seems an unfair burden on a young recruit who may be a high school dropout, does not have the information that the chain of command has, and may be under fire to make moral choices in a “preventive” war.

If the military justice system and the Justice Department can’t decide whether the war on Iraq is legal, how can any member of the military who refuses to fight in a war he/she believes is illegal be charged with desertion?

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