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ACLU Supports Watada's Right to Dissent

By TChris, Section Civil Liberties
Posted on Tue Aug 22, 2006 at 07:05:22 PM EST
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by TChris

For reasons explained here and here, Lt. Ehren Watada refused to deploy to Iraq. He'd rather lose his liberty than his sense of morality.

A separate question is whether he should be also face punishment for criticizing the president's decision to go to war. In an amicus brief, the ACLU of Washington argues that Watada did not sacrifice his right to right to speak out on core issues of public policy by enlisting in the military.

In addition to charges against Lt. Watada for refusal to report to duty, the military is seeking to penalize Lt. Watada for statements he made to reporters expressing his objections to the United States' involvement in the war in Iraq (see below). He is being charged with violating two articles of the Uniform Code of Military Justice: Article 88, which prohibits use of "contemptuous words" against the President and other top governmental officials; and Article 133, which prohibits "conduct unbecoming an officer" - that is, behavior which dishonors or disgraces an officer or "seriously compromises the officer's character as a gentleman."

The purpose of Lt. Watada's public remarks was to explain the motivations for his actions. While one may disagree with Lt. Watada's opinions on the war's legality, the ACLU said in legal papers, his expression of those opinions reflected his deeply felt beliefs and showed a seriousness of purpose and high moral character. In speaking his mind, Lt. Watada expressed sharp disagreement with government policies and the actions of the President, but he did not use contemptuous language and did not behave in a dishonorable manner.

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    ACLU Supports Watada's Right to Dissent | 24 comments (24 topical)
    Last thing (1.00 / 1) (#24)
    by Abdul Abulbul Amir on Mon Jan 08, 2007 at 05:48:34 PM EST
    The climate is ripe for a decision that respects Watada's right to be a vocal participant in American democracy.

    IMHO the last thing you want is a politicized military.  The more the folks in uniform keep the lip zipped about matters political the better.  Things are bad enough without military coups.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#1)
    by jimakaPPJ on Tue Aug 22, 2006 at 07:37:53 PM EST
    When you join the military you give up certain rights. He knew that, so now he should be willing to pay the price for knowingly breaking the rules he agreed to.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#2)
    by Talkleft Visitor on Tue Aug 22, 2006 at 07:58:26 PM EST
    Hmm. Watada signed up in 2003, after the Iraq war started. When he took the oath, he knew that it was entirely possible that he'd be deployed to Iraq, and he also knew that he was no longer in full control of his own life - it's kind of in the nature of being in the military. So either:
    • He's incredibly stupid
    • This was a planned stunt
    Hmm - seems his father was a Vietnam protester. Looks like a stunt. Sadly for him, his efforts will be in vain, and he'll end up in jail for a very, very long time.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#3)
    by Talkleft Visitor on Tue Aug 22, 2006 at 08:18:00 PM EST
    Maybe, maybe not. I do know that we need MORE people like him; more military who REFUSE to serve. I've maintained all along that we need a few brave men and women to stand up and say "Hell, no, I'm not going". Once you get that ball rolling ...

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#4)
    by Talkleft Visitor on Tue Aug 22, 2006 at 08:26:44 PM EST
    More military who refuse to serve? So you want people who are willing to volunteer, then refuse lawful orders, and ruin their lives with dishonorable discharges? For one thing, you simply aren't likely to get many people willing to do that - utterly ruin their lives to satisfy your brand of politics.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#5)
    by Andreas on Tue Aug 22, 2006 at 09:02:35 PM EST
    The Irak war was and is as illegal as the war which was launched by the Nazis in 1939.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#6)
    by Talkleft Visitor on Tue Aug 22, 2006 at 10:51:57 PM EST
    Posted by James Robertson August 22, 2006 09:26 PM More military who refuse to serve? So you want people who are willing to volunteer, then refuse lawful orders, and ruin their lives with dishonorable discharges? James, you left out a couple things: More military who refuse to serve? So you want people who are willing to volunteer, then refuse lawful orders in an illegal war, and ruin their lives with dishonorable discharges to protect the lives of innocent people who did ABSOLUTELY nothing to deserve Bush-Cheney's brand of psychotic global sadism? You're welcome.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#7)
    by Talkleft Visitor on Tue Aug 22, 2006 at 11:01:30 PM EST
    The 2 jims are dispatched to wreck this post it must be serious. Watada took an oath to obey the constitution. If the CIC is not obeying the constitution Watada is not supposed to follow along. He is not a lap dog he is an officer. He does what is right and just under the laws of the US The constant refrain at the Nurenberg trials was that they were only following orders. Now someone has the courage to not follow orders and there is a right wing facist lynch mob cruising the net to make sure no one else has the courage to do so.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#8)
    by Talkleft Visitor on Wed Aug 23, 2006 at 03:24:33 AM EST
    "my brand of politics"? Please, all-knowing one, do tell me what "my brand of politics" ? "lawful orders"? Are you for real!?

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#9)
    by Talkleft Visitor on Wed Aug 23, 2006 at 03:34:37 AM EST
    Lavocat this may be of interest to you. Ben Griffin told commanders that he thought the Iraq war was illegal It immediately brought to an end Mr Griffin's exemplary, eight-year career in which he also served with the Parachute Regiment, taking part in operations in Northern Ireland, Macedonia and Afghanistan. Instead, he was discharged with a testimonial describing him as a "balanced, honest, loyal and determined individual who possesses the strength of character to have the courage of his convictions".

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#10)
    by scribe on Wed Aug 23, 2006 at 05:32:24 AM EST
    I agree that, since two Jims have been dispatched to trash the post, the problem perceived by the administration is quite serious. Here's the rub: So long as Watada's criticism of the war was couched in polite, non-disrespectful vocabulary, the conduct unbecoming charge is, IMHO, quite dubious. And, since he is of the opinion that the war is illegal (or at least unlawful), he has a possible defense to the disobeying orders, etc. Really, it seems to me the charge has been brought more as a deterrent to others, and to inocculate the Army against something which happened during the later stages of Vietnam - an outbreak of junior officers refusing to lead their men into battle and otherwise pushing insubordination to the line, if not over it. But, those purposes don't address whether Watada has violated the law or not. So, since no one seems to have bothered to look at the law on this, what does his commission - the document creating him as an officer and imposing duties, etc., upon him - say? I pulled mine out of the file; they haven't changed the text in many, many years, if ever, and surely not since I received mine. It reads:
    The President of the United States of America [presidential seal] To all who shall see these presents, greeting: Know ye that, reposing special trust and confidence in the patriotism, valor, fidelity, and abilities of [name], I do appoint [him/her, a rank, component] in the United States Army to [rank/serve] as such from the [number, in words] day of [month] nineteen hundred and [year, in words]. This officer shall therefore carefully and diligently discharge the duties of the office to which appointed by doing and performing all manner of things thereunto belonging. And I do strictly charge and require those officers and other personnel of lesser rank to render such obedience as is due and officer of this grade and position. And, this officer is to observe and follow such orders and directions, from time to time, as may be given by the President of the United States of America or other superior officers, acting in accordance with the laws of the United States of America. This commission is to continue in force during the pleasure of the President of the United States of America, under the provisions of those public laws relating to officers of the [component, e.g. Armed Forces of the United States of America] and the component thereof in which this appointment is made. Done at the City of Washington this [number, in words] day of [month] in the year of our Lord, one thousand nine hundred and [number, in words], and of the Independence of the United States of America, the [number, in words]. By the President s/s the Adjutant General Army seal s/s the Secretary of the Army
    The key sentence herein is this one: And, this officer is to observe and follow such orders and directions, from time to time, as may be given by the President of the United States of America or other superior officers, acting in accordance with the laws of the United States of America. The requirement of obedience is limited, and caveated, by the requirement that the order be made by the Preznit or superior officers "acting in accordance with the laws of the United States of America." In so many words, the commission the officer receives is limited by the Preznit's being limited by the law. A shot into the Unitary Executive, make-it-up-on-the-fly mindset of this admin. Moreover, the oath (I'm reciting from memory, here) is
    "...to support uphold and defend the Constitution of the United States against all enemies, foreign and domestic, and bear true faith and allegience to the same, and obey the lawful orders of the President of the United States and the officers appointed above me, ..." etc.
    Again, the officer's duty of obedience is limited by the law - he is not required (nor can he be required or punished for refusing) to break the law, and he is not obligated to follow an unlawful order (which would include participation in an illegal war, the gist of the Vietnam-era alleged insubordinations I mentioned above). Moreover, and note carefully, his allegience is to the Constitution, not to the Preznit, Congress, mommy or anyone else. And, he's required to not just technically "obey" the Constitution, but rather to also have some understanding of and follow the animating spirit of the Constitution. "Technical compliance with the Constitution" is at the core of so many of the administration-lawyer-produced sophistries at the heart of their torture programs, the Gitmo and other concentration camps, and other atrocities being perpetrated by this admin. Watada's got a tough row to hoe, because the presumptions are against him in a case like this; one is taught (informally) along the lines of "well, you might be right that the order to [burn the village, whatever]is unlawful, but you're far more likely than not to buy a prison sentence for being right". Of course, that's also why Officer Evaluation Forms have a line for evaluating the officer's moral courage, defined as his willingness to stand up for what he believes is right. Because experience and history teaches that, far more often than not, those who would stand up for a principle are (and were) right, and there always is at least one other, less-illegal way to achieve the objective, if the superior were to think it through. And, for those saying this is a stunt, one must understand that people, and their attitudes toward military service and war, do change, particularly when they have been exposed to it first-hand. I've seen more than a couple people, in peacetime, become ineffective as a [putative] killin' machine when they had an epiphany moment and recognized that the [proposed] other side is just as human, and pretty much the same as, the guys on our side. I would not exclude that such happened to Watada.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#11)
    by scribe on Wed Aug 23, 2006 at 05:34:37 AM EST
    sorry for the long post, folks.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#12)
    by Talkleft Visitor on Wed Aug 23, 2006 at 06:10:06 AM EST
    TChris: Officers do not enlist, they are given a commission.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#13)
    by Che's Lounge on Wed Aug 23, 2006 at 07:51:01 AM EST
    Wile, So the military just walks up to people and gives them a commission? Since there is no draft, the commissions given are to people who volunteered, or enlisted. I guess the Army should have sent Watada to Iraq when he volunterred

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#14)
    by Sailor on Wed Aug 23, 2006 at 07:53:49 AM EST
    then refuse lawful orders
    aye, there's the rub, a soldier is duty bound to refuse unlawful orders and to not serve in an illegal war.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#15)
    by scribe on Wed Aug 23, 2006 at 08:03:35 AM EST
    Sailor:
    a soldier is duty bound to refuse unlawful orders
    Exactly. That's what his oath, and in Watada's (and every other officer's) case his commission, requires him to do. Obey all lawful orders, refuse all unlawful orders. And, making that easier, the oath is not to a person, but to the Constitution. No Preznit saying: "You owe me all your loyalty" cult of personality bullsh*t. The folks who set up this system (and most of it's the same forms as used in 1789 or thereabouts, if not in archaic language), knew what they were doing, and knew the pitfalls inhering in doing otherwise. Of course, the problem for the individual officer is two-fold: the line is almost-never clear on which orders are unlawful and which lawful, and the institutional pressure to obey is overwhelmingly impossible to resist.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#16)
    by Talkleft Visitor on Wed Aug 23, 2006 at 09:17:29 AM EST
    FWIW: "The United Nations Secretary-General Kofi Annan has told the BBC the US-led invasion of Iraq was an illegal act that contravened the UN charter."(16 September, 2004) http://news.bbc.co.uk/2/hi/middle_east/3661134.stm

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#17)
    by Talkleft Visitor on Wed Aug 23, 2006 at 10:06:24 AM EST
    "since he is of the opinion that the war is illegal (or at least unlawful), he has a possible defense to the disobeying orders, etc." Possible, but not likely. Fundamentally the question would depend on whether the courts declared the war to be illegal. His own private opinion isn't relavent. Anyone care to place a bet that the courts will declare *the entire war* illegal? Not bloody likely. With regards to Kofi Annan stating the war is illegal, hey, once again that's just his personal opinion. "Really, it seems to me the charge has been brought more as a deterrent to others" Refusal to deploy is a very serious issue that the military always prosecutes if disobeyed. Unless you know of large number of officers refusing to deploy and getting away with it and he's just being singled out. "But, those purposes don't address whether Watada has violated the law or not." His violation of the law is clear-cut, he has no chance. What he should do, IMHO, is either resign his commision or just stand up and say, "I won't go because I think war is immoral." Don't make a weak play to hide behind legalities. Isn't that a Bush tactic afterall?

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#18)
    by Sailor on Wed Aug 23, 2006 at 11:09:29 AM EST
    What he should do, IMHO, is either resign his commision or just stand up and say, "I won't go because I think war is immoral."
    They wouldn't let him resign. He doesn't think war is immoral, he thinks he is morally bound not to participate in war crimes. Shouldn't you have your facts straight before you comment? If Kofi's opinion is just an opinion then so is bush's opinion that everything he does is legal just because he's the one doing it.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#19)
    by scribe on Wed Aug 23, 2006 at 11:50:31 AM EST
    Bush does not hide behind "legalities". He and his cronies hide behind sophistries (there is a difference) chanted as talking points and delivered by people who somehow managed to pass a bar exam. Those people, while admitted to practice, are to "lawyers" as theologians debating how many angels can dance on the head of a pin are to true saints. As to Watada's chances of litigation success, I never said they were high. I only laid out the terrain and explained that in my learned (on the twin topics here) opinion, he had cognizable defenses to the charges against him with some chance of success. As to those arguing over the deterrence the military is seeking by prosecuting him, they must be ignorant of the Vietnam history I referred to re many junior officers refusing to participate in what they deemed an illegal or immoral war. The Army hasn't forgotten it. And, for that matter, in the closing days of WWII, Eisenhower noted and impressed upon his subordinate generals the need to (vigorously, brutally) suppress (by courts-martial) the reluctance of junior officers to press home attacks, this reluctance growing out of a desire to not be the last man killed in a war that was ending soon, anyway.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#20)
    by Edger on Wed Aug 23, 2006 at 12:21:29 PM EST
    Sailor: aye, there's the rub, a soldier is duty bound to refuse unlawful orders and to not serve in an illegal war. To Obey or Not to Obey?
    Military discipline and effectiveness is built on the foundation of obedience to orders. These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal. "I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II). The defense didn't work for them, nor has it worked in hundreds of cases since.


    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#21)
    by Talkleft Visitor on Wed Aug 23, 2006 at 12:29:29 PM EST
    Che: Enlisted personnel enlist for a term. Officers are given commission. (Commissioned Officers). Warrant Officers are given a warrant. This is from an old Mustang, me. (also military vernacular).

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#22)
    by cpinva on Wed Aug 23, 2006 at 03:55:32 PM EST
    interesting debate. with respect to the "illegal v legal" war, i think he has no chance. this isn't a war, congress did not declare it so. what congress did do was authorize the president to take all actions he deemed necessary, up to and including military action, with respect to the saddam regime. that makes the action legal in this country. i didn't say it made it right, just legal. koffi annan's opinion, with respect to that, is irrelevant. regarding the "conduct unbecoming" aspect, again, i think he has no chance. this statute is totally subjective in nature: unbecoming conduct is pretty much whatever the military says it is. civilian courts are unlikely to intervene. was watada's move a pre-planned stunt? beats the heck out of me. if it was, it wasn't very well planned. for that reason alone, he should be booted. if he was really trying to get out of deploying, he might have considered CO status. however, that he was commissioned subsequent to the invasion would seem to militate against this being taken seriously. should be interesting to see how this pans out.

    Re: ACLU Supports Watada's Right to Dissent (none / 0) (#23)
    by Sailor on Wed Aug 23, 2006 at 04:52:04 PM EST
    cpinva , how about if they bring up:
    Excerpt: 2) acting pursuant to the Constitution and Public Law 107-243 is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001
    And then note Bush's response to 'what did Iraq have to do with 9/11':
    BUSH: Nothing. Except it's part of - and nobody has suggested in this administration that Saddam Hussein ordered the attack. Iraq was a - Iraq - the lesson of September 11th is take threats before they fully materialize, Ken. Nobody's ever suggested that the attacks of September the 11th were ordered by Iraq.
    ACLU Supports Watada's Right to Dissent | 24 comments (24 topical)