Is the war in Iraq illegal?

Sadly, our government hasn't performed the legal due diligence to answer the question

Posted: Wednesday, June 13, 2007

On June 22, 2006, Lt. Ehren Watada became the first commissioned military officer to refuse to deploy to Iraq when he failed to board his unit's plane at Fort Lewis, Wash. Stating his belief that the war, and thus his orders, were unlawful, he was immediately labeled a coward by some and a hero by others. But few Americans are aware of the details of his actions or the legal basis for them.

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In January, before Watada's court martial ended in a mistrial, I was one of 12 citizens on a panel who heard testimony from expert witnesses for his defense. Among them were Richard Falk, a professor of International Law at Princeton University who previously served on the Independent International Commission on Kosovo, and Denis Halliday, former assistant secretary-general for the Office of Human Resources Management at the United Nations.

Watada's story doesn't begin with an outright refusal of his orders. His attempt to resign his commission was denied due to his unit's "stop-loss" status. A requested reassignment to serve in Afghanistan also was denied, and he turned down an offer for a desk job in battalion headquarters in Iraq.

The actions of military personnel are generally structured around the orders of superior officers, and Watada deliberately disobeyed the orders to deploy with his unit. To the civilian population it would seem that his court martial would be an open-and-shut case.

But commissioned officers do not take an oath to obey orders, either those of their superiors or the commander in chief. This distinction from the oath of enlisted personnel places an officer's primary responsibility and sole allegiance to "support and defend the Constitution of the United States against all enemies, foreign and domestic."

This is where Watada's case becomes legally complex. Bound to our nation's Constitution are numerous treaties that have become part of U.S. law. Ratification of a treaty parallels the process, and effect, of a constitutional amendment, as it requires approval of two-thirds of Congress and a presidential signature. Withdrawal from a treaty should follow the same stringent requirements. The United Nations Charter, including numerous amendments approved by the United States, is one such treaty.

Within the UN Charter are the Nuremberg Principles. Principle VI defines a crime against the peace as "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances." Principle IV applies to us all: "The fact that a person acted pursuant to 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." These form the basis of Watada's defense.

Watada's belief that the war is illegal is not without precedent among high-ranking government attorneys. Prior to the invasion, Britain examined the legal issues and three opinions were written by government officials. The first two lacked legal clarity, but the third supported British participation in the invasion. Nevertheless, the deputy legal adviser in the British Foreign Office resigned because she believed the invasion violated the UN Charter.

Is Watada right or wrong in the actions he has taken? That is up to the Military Court of Justice to decide after a fair trial. But the presiding judge has ruled his primary defense is inadmissible because "the issue of whether the Iraq war is lawful is a nonjusticiable political question." Sadly though, our government has never performed the legal due diligence to answer this question.

Our first responsibility as citizens is not to prejudge anybody based on our own beliefs. Our convictions may originate in a strong intuitive sense where we distinguish right from wrong, but the emotional energy which rises out of these beliefs doesn't relieve us from the responsibility to ground them in the substance of sound reasoning.

The search for answers is not limited to finding supportive evidence, for we also must examine the difficult questions that seem to oppose our beliefs. Only then will we have done the work demanded by the deeper reaches of our conscience, as individuals and as the collective force of the people to whom our government is ultimately responsible.

• Rich Moniak is a Juneau resident.

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