Journal pudge's Journal: Watada Defense 35
So, this Watada guy refused to go with his unit to Iraq, and he is being court-martialed. There's really no question of the facts in the case, and he will be convicted.
His defense is that the war is illegal, and therefore his order was illegal. He wants to present that defense in his court martial, but the judge won't let him. His lawyer and his supporters are going nuts, saying that his rights are being taken away. He is -- it will come as little surprise to people who have read the Constituion -- wrong.
You see, there is a reason why the President is Commander-in-Chief of the military: it's because we do not want a military that is not subject to the civilian authority. But in order for the court martial to even consider Watada's chosen defense would be to elevate the military to a position of authority over the civilian government, which dictated the war policy to the military. Watada is asking the court martial to violate the Constitution.
And this Constitutional violation would bring about the exact opposite of what most of Watada's supporters want: it would create a de facto police state, where the military gets the final say, rather than leaving the war policy in the hands of the people's elected representatives, where it belongs.
I don't know if Watada's lawyers are stupid, or if they are merely exploiting the ignorance and nativite of his supporters, for political gain. Either way does not speak highly of them.
Confused. (Score:2)
His defense is that the war is illegal, and therefore his order was illegal.
BushHitler is wrong they say. They don't want to be caught in the crossfire for having aided him in his war. They must also feel that Hitler was wrong as well for his genocidal treatment of the Jews and his lust for conquest. Holocaust denial goes bye-bye if this is true.
He wants to present that defense in his court martial, but the
Re: (Score:2)
BushHitler is wrong they say. They don't want to be caught in the crossfire for having aided him in his war.
Fine. Have fun in the stockade.
He wants to present that defense in his court martial, but the judge won't let him.
Their question will be why can't he use any defense he wants? Why can't he use this?
Because it would be unconstitutional for the court to consider this defense, in my opinion. And what is fact is that it would be unconstitutional for the court to rule in his favor on those grounds.
But in order for the court martial to even consider Watada's chosen defense would be to elevate the military to a position of authority over the civilian government, which dictated the war policy to the military. Watada is asking the court martial to violate the Constitution.
But it is a court martial and as such is a military function. How would this elevate the military over the government. Again, the guy is an idiot in my opinion.
Because the military has no right to say that the war is illegal. Now, we could argue all day about who has the right to say whether or not we should be in Iraq, Bush or the Congress. But the fact is that both Bush and the Congress have said the war is legal. And you're righ
Re: (Score:2)
I don't think so. He is being tried for desertion (or whatever the specific charge is). That is what they are hearing the case on. He could use the Chewbaca Defense for all they care and just rule against him.
There are all manners of criminals (tax dodgers come to mind) that make all sorts of spurious un-c
Re: (Score:2)
There are all manners of criminals (tax dodgers come to mind) that make all sorts of spurious un-constitutional claims as part of their defense. It doesn't stop them from being prosecuted and found guilty.
Specific defenses are thrown out all the time in regular courts. Judges have broad latitude to tell a defendant he cannot use a specific defense; of course, the judge can be overruled on appeal, but not if the defense itself is one the court cannot rule on, such as is the case here.
I think you are right that to find in his favor may be unconstitutional, but even then - in an outlying case, IMHO - a higher court would reverse and specifically those grounds. This happens all the time in law... so I am not sure where there is grounds to bar someone based on their supposed defense.
You're still thinking of this like a normal court. It's not. It's a court martial. That means it is not allowed to contravene the executive branch of the U.S. government, because it is wholly subject to the executive.
Nuremberg Principle III, 1950 (Score:2)
I believe the US signed up for that set of principles in perpetuity. I'm sorry that creates a demarcation conflict with branches of government, in the unlikely event that the court should 1) allow the defense and 2) rule in his favour. But it is an international obligation.
This is a lose-lose situ
Re: (Score:1)
1) The war was merely just an extension of, the conclusion to, the UN sanctioned war of 1991. The 1991 war ended in a cease fire, not a peace treaty, that is to say, it never officially ended at all! And since the cease fire was broken almost immediately by Saddam, that means the cease fire ceased to exist back in the early 90s. We've been in a state of war with Iraq for over a decade. How can it possibly be illegal? Well, I suppose you could argue
Re: (Score:2)
Re: (Score:2, Insightful)
Re: (Score:1)
Re: (Score:2)
the fact that a person acted pursuant to order of his government or of a superior order does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him
I believe the US signed up for that set of principles in perpetuity. I'm sorry that creates a demarcation conflict with branches of government, in the unlikely event that the court should 1) allow the defense and 2) rule in his favour. But it is an international obligation.
The court martial is not a part of the judicial branch, but the executive branch. This would have to be tried under the judicial branch in order to rule the war illegal. The court cannot allow this defense, or rule in his favor, because it has no authority to do so.
This is a lose-lose situation. Either this guy goes to prison for something which, if what he says is genuine, he had an international obligation to do, in a decision that would erode international principles of the highest morality further. Or the government allows its army to become elective, and in so doing, ineffective.
No, this isn't a lose-lose situation at all. The court martial could not possible care less whether this war is illegal. It's entirely irrelevant. Whether or not this war is illegal, this guy should go to jail. And he should gladly accept
I'm sorry if I am talking 'Shit', but... (Score:2)
The court martial is not a part of the judicial branch, but the executive branch. This would have to be tried under the judicial branch in order to rule the war illegal. The court cannot allow this defense, or rule in his favor, because it has no authority to do so.
I'm not familiar with the intricacies of the American system, not being an American. I understand your point - that this court is not the correct one to consider this issue. Therefore it should be passed on upwards until the correct court is found which can consider all the issues involved, allowing Watada to present his defense. No?
And he should gladly accept that punishment as a consequence for following his conscience.
But this is precisely my point. There is no need for his conscience to have any bearing on the situation whatsoever. This soldier, every soldier, has the purely legal duty t
Re: (Score:2)
The court martial is not a part of the judicial branch, but the executive branch. This would have to be tried under the judicial branch in order to rule the war illegal. The court cannot allow this defense, or rule in his favor, because it has no authority to do so.
I'm not familiar with the intricacies of the American system, not being an American. I understand your point - that this court is not the correct one to consider this issue. Therefore it should be passed on upwards until the correct court is found which can consider all the issues involved, allowing Watada to present his defense. No?
Correct: no. How it works is that the court does what it is supposed to do. If, after all is said and done, the convicted wishes to appeal, he can appeal to the proper military court of appeal, which also cannot hear his defense. After that is rejected, he can appeal to the Supreme Court, which can hear that defense (although, in this case, surely would not take the case ... but Watada is welcome to try, is the point).
But it is not appropriate for the court to simply pass the case along because they can
Re: (Score:2)
And you've asserted that this court cannot decide this defense. Your reasoning seems to be that since this court would not be competent to impeach the president, it's therefore not competent to hear a defense which involves questioning the legality of the presidents orders. I have to say I don't find that convincing. The court is competent to hear the court martial against Lt. Watada, that's not in question, correct? And h
Re: (Score:1)
And woah! You two just handily KOed a
Re: (Score:2)
Re: (Score:2)
The question is, simply, who gets to decide if international law has been violated?
And you've asserted that this court cannot decide this defense. Your reasoning seems to be that since this court would not be competent to impeach the president, it's therefore not competent to hear a defense which involves questioning the legality of the presidents orders.
No. My reasoning does not seem like that at all. In fact, I never said anything even remotely similar to that. I never mentioned anything about impeachment. The Supreme Court cannot impeach the President either, yet it can overrule the President. I have no idea what you're talking about. Maybe you are confusing impeachment with criminal charges? Two completely separate things.
What I am saying is that courts martial are wholly subject to the President, as the rest of the military is, subject to Congr
Re: (Score:2)
Thanks for clarifying your logic on the jurisdiction issue. It is indeed more nuanced than I grasped at first. Let me just ask you this. Can you give me a single example of an order that would indeed be unlawful, in your view?
Re: (Score:2)
Let me just ask you this. Can you give me a single example of an order that would indeed be unlawful, in your view?
Sure. Let's say the President ordered, as was offered earlier, for every third red-headed person to be shot. This would be in direct violation of actual UCMJ regs, passed by Congress. If this were Watada's order, he could point to the regs and say, "no, I cannot follow that order, because the regs say I cannot."
What makes this case different is that not only do the regs not give any room for a soldier declaring the war to be illegal, but the Congress has actually approved of this war. Oh, and also, the
Re: (Score:2)
And which UCMJ article, specifically, would that be in violation of?
Re: (Score:2)
Re: (Score:2)
Ok, just so we're clear on what we're talking about:
Re: (Score:2)
Note that both of these articles have an escape clause, they do not apply when the act is lawful ("except as provided by law" and "unlawfully." Otherwise, they would prohibit taking prisoner or killing enemy soldiers and defeat the entire purpose of having a military in the first place.
Right. Are you contending that Congress authorized the killing of every third red-haired person?
Therefore, a court martial considering our hypothetical case, where the soldier properly refuses the order you say is unlawful, would also have to make a ruling as to whether the order refused was in fact lawful.
No. It could consider whether the order was lawful, but would not have to issue an order ruling it was lawful. It is considered lawful unless ruled otherwise. So it could simply not rule on the issue, which means it is lawful by default, despite the lack of specific ruling.
Despite that confusion, basically, yes, the court could hear that defense, and would most likely would rule the order illegal, and acqui
Re: (Score:2)
The judge in the case at hand ruled on the matter [wikidot.com], saying the question to deploy troops is a nonjusticable political matter that the military court cannot rule on. In doing so, he cited U.S. v. New [uscourts.gov], which says (and in doing so, sounds familiar):
Re: (Score:2)
Exactly. And the same applies to Watadas defense - whether you think he's correct or not, he is claiming the same defense as the soldier who won't kill redheads - that the order was unlawful.
This is completely independent of the question of whe
Re: (Score:2)
Exactly. And the same applies to Watadas defense - whether you think he's correct or not, he is claiming the same defense as the soldier who won't kill redheads - that the order was unlawful.
False. This order is unique, and the defense cannot be ruled on by this court. You are simply ignoring the ways in which it is distinct, and hyperfocusing on the ways in which it is similar. The ways in which it is distinct make all the difference. The same logic does not apply to Watada's defense because it's not the same thing. In one case you have an order which violates the UCMJ, and in the other, you have an order which not only does not violate the UCMJ, but is explicitly stated to be legal by b
Re: (Score:2)
Let's analyse this. The reasons you give here, why he should not be allowed to present his defense, are two. 1)[the] "order does not violate the UCMJ" and 2)"it is explicitly stated to be legal by both prevailing br
Re: (Score:2)
The same logic does not apply to Watada's defense because it's not the same thing. In one case you have an order which violates the UCMJ, and in the other, you have an order which not only does not violate the UCMJ, but is explicitly stated to be legal by both prevailing branches of government.
Let's analyse this. The reasons you give here, why he should not be allowed to present his defense, are two. 1)[the] "order does not violate the UCMJ" and 2)"it is explicitly stated to be legal by both prevailing branches."
Argument number one is an example of circular reasoning. Whether or not the order violated the UCMJ is the point in contention.
No, it is not. There is no argument that it violated the UCMJ. You answer, then: which article of the UCMJ did the order violate?
What is argued is that it violated international law and the Constitution, both of which this court cannot rule on. This court can only rule based on the laws and orders passed down by the Executive and Legislative branches, unless those are explicitly overruled by the Supreme Court. Period. They cannot rule Congress and the President to have violated the law. Courts martia
Re: (Score:2)
I'm sure his lawyers could be more thorough, but off the top of my head I believe I can sketch the argument here.
The lieutenant is charged with breach of article 87 and 133. From article 87 we have an "escape clause" as discussed before - missing movement is only a punishable offense when, among other conditions, that movement is required by duty. Article 133, conduct unbecomi
Re: (Score:2)
No, it is not. There is no argument that it violated the UCMJ. You answer, then: which article of the UCMJ did the order violate?
I'm sure his lawyers could be more thorough, but off the top of my head I believe I can sketch the argument here.
Well, if his lawyers could have appealed to the UCMJ, they would have. In their motion to go for the Nuremberg Defense, they did not mention anything about the UCMJ. If they had any case there, the judge might have let them use that defense. That they didn't shows they couldn't make that case.
The lieutenant is charged with breach of article 87 and 133. From article 87 we have an "escape clause" as discussed before - missing movement is only a punishable offense when, among other conditions, that movement is required by duty.
Yes. Which it was.
Article 133, conduct unbecoming of an officer, is a very general and open charge, and if he can establish that duty required his conduct this would clearly form a very strong argument that it was not, therefore, unbecoming of an officer to so behave.
No. The conduct unbecoming charge -- which is actually the more potentially serious offense -- stems from his public statements. Even if he could establish his missing movement was justified,
Re: (Score:2)
To the contrary, they argued just as I have (except, as I mentioned, they were doubtless more thorough.) The Nuremburg Charter is incorporated in the UCMJ via the articles I quoted, in accord with the Supreme Court p
Re: (Score:2)
Well, if his lawyers could have appealed to the UCMJ, they would have. In their motion to go for the Nuremberg Defense, they did not mention anything about the UCMJ. If they had any case there, the judge might have let them use that defense. That they didn't shows they couldn't make that case.
To the contrary, they argued just as I have (except, as I mentioned, they were doubtless more thorough.)
Not in their motion regarding the Nuremberg defense, they didn't. Either they didn't feel it was a good argument so left it out, or they are incompetent, because part of the reason the defense was disallowed is that they didn't provide evidence that the order was illegal.
And again, it is a poor argument, since it's question-begging. If the order is illegal under international law, it doesn't matter if it is illegal under the UCMJ, and it is only illegal under the UCMJ (in this argument) if it is illegal
So out of curiosity (Score:2)
On a realted note, at what are illegal orders to be allowed as a defense? If Bush were to order the rounding up and shooting of every third red-haired person, and a soldier refused, how would they defend themselves since it is an order from the Commander in Chief?
Re: (Score:2)
From your point of view, is it A) possible for the President to wage war illegaly
Yes.
and, if so, how would a soldier not abiding to an illegal order defend himself?
In a court martial, he most likely could not. The President is the Commander in Chief. He makes the rules. However, he could appeal to a federal court, which could make its way up to the Supreme Court, which could rule a war to be illegal. However, in this case, that would never happen, because both Congress and the President agreed to the war, and the Court would never overturn that without exceptionally strong legal standing, which simply doesn't exist here.
On a realted note, at what are illegal orders to be allowed as a defense?
For starters, the orders have to be a
Re: (Score:2)
What other choice is there? Do you really want a country where the military gets to decide what is illegal, in contravention of the orders of the President, and o
Re: (Score:2)
It wasn't that long ago that a country told its soldiers to round up kill every Jew it could find, so it is possible for a commander in chief to give such orders. It is unlikely to the extreme, but it is also the extremes that the law must account for.
And in those cases, we look to the Judicial Branch. Courts martial are not in the Judicial Branch.
I wasn't a aware that a Courts Martial ruling took precedence over the military or commander in chief.
It doesn't. That's the point. It is not allowed to. So it cannot rule the war to be illegal.
Courts martial are part of the Executive Branch. Part of the military. The President is in charge of the Executive Branch, and the military is regulated by the Congress. Courts martial cannot declare the Congres