The Ehren Watada case

I honestly have mixed feelings about this particular case.

To start with, I am annoyed with the article itself, which is extremely biased, and so it is hard to discern the actual facts. The fact that people were tortured and otherwise mistreated at Abu Ghraib has very little bearing on the legitimacy of the declaration of war, and therefore on the Watada case. While I realize that this is an opinion post, and that the author is always free to say what they think, I am usually bothered by bias when it appears in the media.

Of course, that is neither here nor there. This blog is supposed to be about the case itself. On that topic, it seems that if one voluntarily joins the military, that person takes on the responsibility of being involved in conflicts he or she may not necessarily agree with. Watada was not conscripted, he enlisted voluntarily. Military discipline enshrines the principle that a soldier does what he or she is told, regardless of their feelings or opinions. A lack of discipline during war could have dire effects.

On the other hand, as the author of the article points out, the Nuremberg Principles established that officers have a duty to refuse unlawful orders. However, no one has, to my satisfaction, been able to prove either the legality or illegality of the Iraq War. Furthermore, I would argue that the Nuremberg Principles form part of jus in bello, rather than jus ad bellum. Soldiers are bound by the Nuremberg Principles to refuse to follow orders that are illegal during war, not to refuse to join war. People who refused the draft during the Vietnam War were imprisoned, however they may have felt about the legality of the war, because they did not have the ability to refuse to fight the war itself. Similarly, while Watada would have had an obligation to not only not participate, but to stop, the events that occurred at Abu Ghraib, he did not have the right to refuse to go to war.

So legally, it seems the United States military is behaving in an appropriate fashion in response to insubordination by an officer. However, it seems a tad petty that the military would not just reassign Watada to Afghanistan, where there are certainly not enough boots on the ground. I suppose one could make the argument that quite a lot of the soldiers in Iraq do not agree with the legality or morality of the war, and so allowing Watada to choose to go to Afghanistan could set an inconvenient precedent that would result in the war effort in Iraq being seriously hampered. However, none of those soldiers seemed to have been as resistant to the idea of the Iraq War. Perhaps a restriction of privileges in response to insubordination, followed by transfer to Afghanistan, would be more appropriate than a court martial in the Watada case.

Finally, it seems pretty obvious to me that a court martial would not permit anyone to use the illegal war defense. The President of the United States sent combat troops to another country. Therefore, the military, which is subordinate to the President, has to consider the war legal. If Watada were to win the case using the argument that the Iraq War is illegal, the results could be very serious, not least in terms of cases being brought against the United States for illegal aggression. What happens if the U.S. military refuses to obey the civilian government? That sounds an awful lot like the start of a coup. Additionally, courts martial do not operate according to the standard legal proceedings of the United States judicial system. Defendants in courts martial do not have the same rights as defendants in a normal criminal case. It seems rather unfair, but there it is. It is naive, at the very least, for the author to expect that standard rules of freedom of speech and basic criminal law apply in a court martial.