The trials of Lt. Ehren Watada

Although Americans have been inundated with revelations about the lies, torture and other crimes that accompanied the U.S.-instigated war in Iraq, many who resisted continue to be punished for refusing to participate in those crimes. Army 1^st Lt. Ehren Watada, the first commissioned military officer to refuse deployment to Iraq, recently won a significant legal victory when the U.S. Department of Justice dropped efforts to retry him after a bungled court-martial. But his legal problems continue.

In July 2006, Lt. Watada, based at Fort Lewis, Washington, refused to be deployed to Iraq on grounds that the war was illegal and immoral and that to participate in it would make him complicit in war crimes. The Army court-martialed him in February 2007, but at the last minute Military Judge John Head declared a mistrial.

The Army attempted to retry Watada, but in October 2008 U.S. District Court Judge Benjamin Settle barred the retrial as a violation of the Constitution’s ban on double jeopardy, charging that “the military judge likely abused his discretion” in declaring a mistrial. The Army appealed that decision, but in early May Solicitor General Elena Kagan ordered the appeal withdrawn.

Yet the Army is still considering further action against Lt. Watada on two counts of “conduct unbecoming an officer” that were with-drawn during the original court-martial.

A Fort Lewis spokesman, Joe Piek, was quoted as saying that the leadership at Fort Lewis is considering “a full range of judicial and administrative options that are available, and those range from court-martial on those two remaining specifications, to nonjudicial punishment, to administrative separation from the Army.”

Lt. Watada’s term of service ended in December 2006, but the Army has refused to allow his long-overdue discharge while resolution of his case is pending.

Many Iraq War resisters remain prisoners or fugitives. There are more than 50 public resisters in Canada and an estimated 250 more underground. While the Army just kicks most AWOL deserters out with an administrative discharge, it singles out those who have spoken publicly against the war for severe punishment. As recently as this April, the Army sentenced Clifford Cornell, a resister who was forced to leave his refuge in Canada, to twelve months in a military prison and a bad conduct discharge.

Lt. Watada’s stand was not the conventional conscientious objection to all wars; it was based on his belief that this particular war in Iraq is illegal. He maintained that it violated the Constitution and the War Powers Act, which “limits the President in his role as commander in chief from using the armed forces in any way he sees fit.” It is illegal under the U.N. Charter, the Geneva Convention and the Nuremberg principles, which “all bar wars of aggression.” He claimed the conduct of the occupation also violated the Army Field Manual: “The wholesale slaughter and mistreatment of the Iraqi people” is “a contradiction to the Army’s own law of land warfare.”

Releasing Lt. Watada from the Army, and providing amnesty for all those who have been punished for resisting the Iraq War, must be a central part of America’s coming to terms with the Bush administration’s rogue policies.

– edited from The Nation, May 19, 2009
PeaceMeal, May/June 2009

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Lt. Watada won’t be retried on key charges

Citing the constitutional protections against being tried twice for the same crime, a federal judge ruled Oct. 21 that 1st Lt. Ehren Watada cannot face a second court-martial on three of five counts resulting from his high-profile refusal in 2006 to deploy to Iraq with his Fort Lewis combat brigade. Judge Benjamin Settle barred the military from retrying Watada on charges of missing his redeployment to Iraq, taking part in a news conference, and participating in a Veterans for Peace national convention. But he did not rule out the possibility that the Army, after considering legal issues, could retry Watada on two counts of conduct unbecoming an officer resulting from his media interviews.

The Army had sought a second court-martial on all five counts against Watada, which could have carried a sentence of up to six years in prison. Convictions on the two remaining counts could result in two years in prison.

In his ruling, Judge Settle said it was up to a military court to consider if “constitutional defects” of double jeopardy would be present in a second court-martial on the two counts still standing. The ruling keeps Watada, who has been assigned a desk job at Fort Lewis since his refusal to deploy to Iraq, in a kind of legal limbo.

Watada’s first court-martial in February 2007 ended in a mistrial over a pretrial agreement that the Army judge, Lt. Col John Head, decided deep into the trial he could no longer accept. In the agreement, both sides conceded that Watada had missed his deployment. Judge Head thought the agreement was a virtual admission of guilt, but defendant Watada said his concession was not a guilty plea, since he believed the war was illegal and he was thus not compelled to fight.

Lt. Watada is the first Army officer to face court-martial for refusing to serve in Iraq, and his case has drawn international attention as he allied himself with peace groups and repeatedly attacked the Bush administration’s conduct of the war.

“Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration, and the rules of engagement of desperate field commanders will ultimately force them to be party to war crime,” Watada said in an Aug. 1, 2006, speech to the Veterans for Peace in Seattle.

Lt. Gen. Charles H. Jacoby Jr., the commanding general at Fort Lewis, still needs to review the federal court ruling in depth before deciding how to proceed with the case. Lt. Watada’s attorney, James Lobsenz, said he was hopeful the Army would dismiss the remaining two charges. If that doesn’t happen, Watada could return to federal court and try to get the charges blocked.

– edited from the Seattle Times, October 21, 2008
PeaceMeal, Nov/December 2008

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Soldier changed by Iraq war

Sgt. Ricky Clousing went to war in Iraq because, he said, he believed he would simultaneously be serving his nation and serving God. But after more than four months on the streets of Baghdad and Mosul interrogating Iraqis rounded up by American troops, Clousing said, he began to believe that he was serving neither. He said his work as an Army interrogator led him to conclude that the U.S. occupation was creating a cycle of anti-American resentment and violence.

Sgt. Clousing said he rode in an Army Humvee that sideswiped Iraqi cars and shot an old man’s sheep for fun. He saw American soldiers shoot and kill an unarmed Iraqi teenager. Sgt. Clousing said he looked into the eyes of the Iraqi teenager as he died and saw the unjustifiable loss of a life — an experience that unhinged him. Both incidents he reported to superiors. On his return to Fort Bragg N.C. and after months of soul-searching, Sgt. Clousing failed to report for duty one day.

At his court-martial on 12 October 2006, the 24-year-old patriot from Sumner, Washington, said from the witness stand: “My experiences in Iraq forced me to re-evaluate my beliefs and my ethics. I ultimately felt I could not serve.”

Sgt. Clousing said in an interview that he had been a partyer and snowboarder until a sudden “born-again” experience in high school. He subsequentlly spent four consecutive summers on mission trips to Mexico and went with an evangelical group to Thailand, where he was on Sept. 11, 2001. Out of patriotism, idealism and curiosity, he said, he joined the military. He signed up to be a “human intelligence collector,” and trained in Arizona and at the Defense Language Institute in Monterey, Calif.

Assigned to the 82nd Airborne Division, he arrived in Iraq in November 2004. He said he was stunned at the number of Iraqis he was assigned to interrogate who were either innocent or simply disgruntled citizens resentful about the American occupation. He said he told his commander: “Your soldiers and the way they’re behaving are creating the insurgency you’re trying to fight. It’s a cycle. You don’t see it, but I’m talking to the people you’re bringing to me.”

Back in Fort Bragg after five months in Iraq, Sgt. Clousing took his misgivings to his superiors. They sent him to a chaplain, who showed him in the Bible where God sent his people to war, Clousing said. Then they sent him to a psychologist who said he could get out of the military by claiming he was crazy or gay. Clousing said he had not been looking for a way out and found the suggestion offensive. Finally, he called a hotline for members of the military run by a coalition of antiwar groups to discuss his moral conundrum. Clousing said he could not file for conscientious objector status because he could not honestly say he was opposed to all war. After several months of soul-searching, he went AWOL — “absent without leave.”

Sgt. Clousing was AWOL for 14 months. On 11 August 2006, at the annual Veterans for Peace national convention in Seattle, he called a press conference and went public with his stand against the Iraq war. He then turned himself in at Fort Lewis, Washington, and was returned to Fort Bragg.

The same stark courtroom where Sgt. Clousing testified was also the site of the court-martial of Pfc. Lynndie England, who mistreated and posed with naked Iraqi prisoners at Abu Ghraib prison. In response to charges against him, Clousing stated: “I have known that being court martialed was a possibility I could face. I am at peace with my decision. I followed my conscience and, if need be, I will feel honored to join the ranks of others who have been prosecuted for doing the same.”

His defense attorney argued: “Some might say a person of such convictions should never have enlisted, but the Army needs soldiers with the strength of their convictions and personal courage to speak up when they see abuses.”

Sgt. Clousing pleaded guilty to the charge of being AWOL and was sentenced to serve three months in confinement, forfeiture of 2/3 pay while confined, and a bad conduct discharge.

On 23 December 2006, Sgt. Ricky Clousing returned home after three months in a military prison and was welcomed at the Seattle-Tacoma International Airport by family, friends and supporters. He said, “I’d rather spend a year in jail than participate in an illegal war and be part of the machine suppressing Iraq.”

– edited from The New York Times and CouragetoResist.org
PeaceMeal, Jan/February 2007

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

Sgt. Kevin Benderman - conscientious objector

Sgt. Kevin Benderman, a 40-year-old Army mechanic, was sentenced to 15 months confinement, loss of rank, forfeiture of pay, and a dishonorable discharge for being a conscientious objector to the United States war of aggression in Iraq. At his court-martial on July 28, Sgt. Benderman told a military judge that he acted with his conscience, not out of a disregard for duty.

Sgt. Benderman served in the military for ten years, including a combat tour in Iraq, for which he received two Army commendation medals for meritorious service. In January, he refused to board a plane to return for a second tour of duty in Iraq, saying the destruction and misery he witnessed during the 2003 invasion had turned him against war.

"I have learned from first-hand experience," Kevin Benderman said, "that war is the destroyer of everything that is good in the world. It turns our young into soulless killers, and we tell them that they are heroes when they master the ‘art' of killing."

 Sgt. Benderman's wife, Monica, wrote: "He returned knowing that war is wrong, the most dehumanizing creation of humanity that exists. He saw war destroy civilians, innocent men, women and children. He saw war destroy homes, relationships and a country. He saw this not only in the country that was invaded, but he saw this happening to the invading country as well — and he knew that the only way to save those soldiers was for people to no longer participate in war."

Norman Solomon, author and syndicated columnist on media and politics, commented: "[T]he capacity for conscience makes us human. Out of all the differences between people and other animals, Darwin wrote, ‘the moral sense of conscience is by far the most important.' And that's why Kevin Benderman, now in prison, is providing greater moral leadership than any member of the United States Senate."

Amnesty International has declared Kevin Benderman a "prisoner of conscience" and is seeking his immediate release.

Not in a soldier’s name

by Paul Oestreicher

He wasn't a pacifist. He'd done his military training. Franz Jägerstätter was a devout Catholic, a peasant farmer with a wife and children. He knew the difference between a just and an unjust war. When Hitler attacked Russia, he said: "This is aggression. I will not serve." Not even his patriotic bishop could change his mind. He knew the cost: imprisonment and execution.

Today, as his widow celebrates her 90th birthday, that bishop's successor is asking the Pope to beatify him — the first step toward canonization. Had Hitler won, he would still be dammed as a traitor. The church, as religious institutions tend to do, bends with the prevailing wind.

At Nuremberg, Hitler's foreign minister Ribbentrop was executed for waging an aggressive war along with his top generals. The führer's orders were not accepted as a valid defense. They had beheaded the conscientious objectors; the leaders were hanged. Who were the true patriots?

Today in Israel, some children of Holocaust survivors, though only too willing to defend their country, refuse to be part of a brutalised occupation force. As many as a thousand reservists are refuseniks, with as little support from the rabbinate as Jägerstätter had from his bishop. Reviled by many, they are surely the true patriots and heirs of the uncomfortable prophets of Israel.

The same dilemma now faces the men and women of the U.S. and British armed forces. "Theirs not to question why, theirs but to do and die," will no longer wash. Many of them are Christians. The issue is both legal and moral. Christian leaders in the U.S. and in Britain — and worldwide, across all denominational divisions — oppose this war; so do eminent military men. Desmond Tutu stands alongside Jimmy Carter. They say no. There is something like a global consensus that a preemptive war, with no U.N. backing, is unwise, immoral and illegal.

Interviewed by television crews in the desert, the officers and men on the frontiers of Iraq put a brave face on it all. "We're here to do a job." But killing, and being killed, isn't just a job. At least, some of them know it. Once in the service, it is very, very hard to quit. Comradeship is no mean virtue.

But in the US, it has become an issue. The Quakers have established a hotline to counsel disturbed members of the armed services. It is much in demand. Many Americans are devout Christians. Do they listen to church leaders, or do they follow their fundamentalist president? It is tragic and ironic that Christian fundamentalism plays unwittingly into the hands of the Islamic fundamentalism it purports to despise.

The New York-based, veterans' association, Citizen Soldier, estimates that, of the 1.4m service men and women, around 1,000 each year seek to leave the forces on grounds of conscience. As many as 20,000 have sought advice during the past year. The memory of Vietnam still weighs heavily. We, in contrast, have forgotten Suez. Our cause cannot simply be presumed to be just.

Most military chaplains are understandably reluctant to wrestle with this problem. They are both pastors and serving officers, and hardly trained to be prophets. Soldiers are trained to obey. Yet even military law makes it illegal to obey an illegal order. And even a legal order may conflict with an informed Christian conscience.

The issues raised are of great moral complexity at one level; at another, they are simple. To win this war may prove relatively easy; to win the peace will not. The winners will appear only before the court of world opinion; the losers alone will stand trial. But all will be the losers if war is once again held to be the legitimate pursuit of political ends by other means.

A few, whose names we may never know, will have refused to fight. At a level that embraces and transcends politics, we may all be in their debt.

Canon Dr. Paul Oestreicher, former director of the center for international reconciliation at Coventry cathedral in England, is a vice president of the Campaign for Nuclear Disarmament. His article appeared in The Guardian (U.K.) on March 22, 2003.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)