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On June 7, 2006, a 28-year-old Army lieutenant named Ehren Watada released a video press statement announcing that he was refusing to deploy to Iraq because the Iraq War was illegal and his "participation would make me party to war crimes." After three years of trying to convict him by court martial, the Army has finally given up and allowed Lt. Watada to resign. Despite his direct refusal of an order to deploy, Watada did not spend a single day in jail.
A former Eagle Scout with a degree in finance, Watada volunteered for military service after 9/11. His motives could hardly have been more patriotic. For himself and his fellow soldiers, he said, "the reason why we all joined the military" and "the commitment we made to this country" is "to sacrifice everything--sacrifice our lives, our freedom--to ensure that all Americans live in a country where we have true democracy."
When he learned that he would be shipped to Iraq, Lt. Watada began to read everything he could find about the war, on all sides, so that he could better motivate the troops under his command. One of the books he read was James Bamford's A Pretext for War . In a film made about his story, In the Name of Democracy, Watada described shock at what he learned: "Our country, and we as a military, had been deceived. There's no other way of putting it. Whether they misrepresented the truth, or they told half-truths or misled--it's a lie." The Iraq War was "a war not out of self-defense but by choice."
Watada is not a pacifist, and he based his stand not just on the falsehood of the justifications for the war but on the usurpation of legitimate constitutional authority by the officials in the George W. Bush administration.
"There came a time when I saw people with power, and they held that power absolute and they did not listen to the will of the people," he says in In the Name of Democracy. "That was the leadership of our country. Those were the people who were in charge of our lives, and yet they did what they wanted to do with impunity, and nobody was willing to stand up and challenge them."
Watada offered to resign or to be deployed to Afghanistan; the Army refused. He felt bound by his military oath to do what his conscience abhorred. Then he had an epiphany: his military oath actually required him to refuse orders he believed were illegal, and his loyalty was owed to the Constitution, not to the officials who were perverting it.
"I believe the only real God-given right we have is the freedom to choose," Watada says. "And when we take that away from ourselves, then we put ourselves in an invisible prison that nobody else imposes on us except for ourselves. When you tell yourself again that you do have a choice--I could go to prison for it, I could be tortured, I could die for it, but I have that choice and I can make it--then that invisible prison kind of lifts off, and you feel free. I felt so free when I told myself that I have a choice."
On June 7, 2006, Watada issued a statement announcing his refusal to deploy : "It is my conclusion as an officer of the armed forces that the war in Iraq is not only morally wrong but a horrible breach of American law. Although I have tried to resign out of protest, I am forced to participate in a war that is manifestly illegal. As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."
Crucial to his argument  was the unconstitutionality of the decision to go to war. "We had people within our country with tremendous amounts of power who were doing whatever they felt they wanted to," Watada explained. "There were no checks and balances like our Constitution espouses."
His disobedience was also his duty under international law: The UN Charter and the Nuremberg principles "bar wars of aggression." As treaties, they are US law as well.
Watada was aware that imprisonment was the likeliest consequence of his action. But he planned to put the war on trial in the process: "I will try to argue the legal merits of the war: that it is illegal, that it is immoral and that officers and soldiers of conscience should not be forced to do something that is illegal and immoral."
The Army charged Lt. Watada with failure to deploy to Iraq with his unit and began court martial proceedings. There began the torturous process that ended with Watada's recent victory--a process that echoes the old saying, "Military justice is to justice as military music is to music."
Watada and his supporters prepared to put the war on trial. But Military Judge Lt. Col. John Head refused to allow Watada's motivation for refusing the order--the war's illegality--even to be considered. Judge Head maintained that when Watada stipulated that he had disobeyed an order, he was actually confessing guilt, making any defense irrelevant.
The court tied itself in knots trying to maintain the paradox that a soldier has a duty to disobey illegal orders while Watada could not argue that the order he disobeyed was not a lawful order.
When the judge called for the prosecution and defense lawyers to request a mistrial on the grounds that Watada must have misunderstood his own statement, both sides told Judge Head that they disagreed with him. At that point the judge virtually instructed the lawyer for the prosecution to ask for a mistrial , which he immediately granted.
Judge Head proposed to retry Watada on the same charges. But, as Watada's lawyer Eric Seitz said in a press conference after the court martial, since both prosecution and defense had presented their full cases, that would be an obvious breach of the Constitution's safeguard against double jeopardy --trying anyone twice on the same charges. The Army, Seitz said, should realize that "this case is a hopeless mess."
Three military courts rejected Watada's double jeopardy claim; but as soon as the case was appealed to a civilian court, US District Court Judge Benjamin Settle issued a stay blocking the retrial and charging that "the military judge likely abused his discretion." The Army announced it would appeal but then did nothing for eighteen months, leaving Watada in limbo. Finally, after a campaign by Watada's supporters, the Obama administration's Department of Justice nixed the Army's appeal. The Army threatened to court martial Watada on other charges but finally decided to accept defeat.
Deeper Questions Remain
Ehren Watada is now free to go on with civilian life. But as the Obama administration goes into arrears on its pledges to withdraw from Iraq, plunges further into quagmires in Afghanistan and Pakistan, and threatens to escalate conflict with Iran, the questions Watada's action posed continue to haunt us. Here are a few:
Is there a right and obligation to resist?
Watada raised the fundamental question of whether authority--in the military or in society more generally--is something to be blindly accepted, or something to be subject to rational moral and legal examination. He asserted that "the American soldier must rise above the socialization that tells them authority should always be obeyed without question. Rank should be respected but never blindly followed."
Gen. Peter Pace, then chairman of the Joint Chiefs of Staff, was asked in 2006, "Should people in the US military disobey orders they believe are illegal?"  He answered, "It is the absolute responsibility of everybody in uniform to disobey an order that is either illegal or immoral." If so, what are the implications for soldiers, for the military and for the rest of us?
Should the military hear claims that orders are illegal?
Watada stated, "I understand that under military law, those in the military are allowed to refuse and in fact have the right to refuse unlawful orders--a duty to refuse. In a court of law they should be given the opportunity to bring evidence and witnesses to their defense on how that order was unlawful. In this case I will not be, and that is a travesty of justice."
Should the law recognize selective objectors?
The Selective Service Act provides conscientious objector status to those who oppose all wars on grounds of moral conscience. But it takes the position that objectors can't pick and choose their wars. Yet today there are strong moral grounds to oppose many, if not most, of the wars that occur, even for those who might admit in principle that some wars might be justified. Amnesty International takes the position that there is a right to such "selective objection" and that those who are punished for refusing to participate in a war they consider immoral are "prisoners of conscience."
Watada recognized that "in opposition to my position, the argument will be made that soldiers don't have a right to pick and choose their wars." But, he maintained, "I would respond that it is not only our right but our constitutional and moral duty." Is it time to recognize conscientious objectors to particular wars?
How can illegal wars of aggression be prevented?
There is currently a broad debate on torture in policy circles, the public and to some degree in the courts. But torture is only one war crime, and it's not the most severe. Yet there is virtually no effort to question or establish accountability for the most important war crime by the United States in Iraq: illegal pre-emptive war.
As Watada said, "I think the greatest crime that the leaders of a country could commit--the leadership of a country--would be to take their people, their country, into war, based upon false pretenses."
In a statement that won him an additional charge from the Army, Watada told a Veterans for Peace convention, "To stop an illegal and unjust war, the soldiers can choose to stop fighting it." Is such action disloyalty, or a much-needed addition to our system of checks and balances?
The Army vented its own frustration at its failure to convict Watada by insisting that his resignation was "under other than honorable conditions."
Lt. Ehren Watada honorably sacrificed much and risked more "to make sure that all Americans live in a country where we have true democracy." The Army should honor him as a military hero.