US soldier refuses deployment to Iraq on grounds that the war is illegal

[Yun Dog]

As much as I think the war in Iraq is farce and agree with the guys opinion. Once you VOLENTEER for the army - then you DONT have an opinion you follow orders full stop. Its not his problem if he thinks its right or wrong - he needs to do what he told and not think.

As far as court marshall - they shouldve just DD the guy and saved the bad press. This guy is hurting his fellow soliders on the ground.. he needs to shut up.

The ones giving the orders and making the decisions are the ones who need to worry about illegal wars - not the soldiers they just need to do their duty - they are blameless.

If you volenteer for the army expect to have to go and kill people - sorry thats what armys do - best not to think about it.

[Navaros]

As much as I think the war in Iraq is farce and agree with the guys opinion. Once you VOLENTEER for the army - then you DONT have an opinion you follow orders full stop. Its not his problem if he thinks its right or wrong - he needs to do what he told and not think.

I found that the point you make here is very correctly rendered invalid by a poster who made a comment on the page where I saw the article.

By volunteering to participate in a war you did not believe in, you shirked your duty to your country and the ideals of of the Consitution by empowering the government's actions. You basically surrendered your conscience and morals to the government. Mr. Watada joined the military to perform what he felt was his duty and obligation and upon discovering that the Executive Branch had lied to Congress and the American people (which included him) decided that he could no longer support this war. A war that he considered to be illegal. This determination of illegality occurred AFTER he had been enticed by fraudulent statements of the Executive Branch. No one in this country can be held to any contract entered into by reason of fraud. That is our law, and that is what Mr. Watada is saying occurred in this case. You cannot say that he is a traitor or a deserter. He is doing what he believes fulfills his oath to "uphold and defend the Constitution of the United States of America" and he has not deserted from the Army. Mr. Watada is an American of the highest caliber, one who is willing to sacrifice in the name of America and what it means. I, for one, wish that I could say the same about our current Administration and the past Congress.

[PanzerJaeger]

Soldiers do not get to pick and choose which wars they fight.

At best this man is simply a coward, at worst a traitor.

Both deserve to rot in prison.

[Csargo]

Soldiers do not get to pick and choose which wars they fight.

At best this man is simply a coward, at worst a traitor.

Both deserve to rot in prison.

I agree

[Xiahou]

I'll only go so far as to say he's wrong.

His reasoning is extremely poor- it suggests to me that he's working at some other agenda than what he states.

SITES: Do you think President Bush and his advisers are guilty of criminal conduct in the prosecution of this war?

WATADA: That's not something for me to determine.

Yet he declares multiple times that it's an "illegal war"- I thought that isn't for him to decide?

If he's willing to risk prison time to make a point, good for him. But he is going to go to prison and rightfully so- he's clearly in the wrong.

[Goofball]

Soldiers do not get to pick and choose which wars they fight.

At best this man is simply a coward, at worst a traitor.

Both deserve to rot in prison.

That's a little harsh, I think.

I'm assuming that American officers make the same oaths (roughly) as Canadian ones do, a key point of which is that they will carry out lawful orders of superior officers.

I won't debate whether the war is illegal or not. The only question is, if this officer truly believes that it is illegal, and therefor that his orders to deploy to Iraq and take part in combat operations are also unlawful, then he has a legal (because of his oath) obligation to refuse those orders.

So call him names all you want, but on the face of it he seems like an honorable individual to me. He hasn't run away. He's made a difficult decision and chosen to take his case to court and accept the consequences, one way or the other.

BTW, good to see you back, PJ. Happy New Year.

[Somebody Else]

Apologies for quoting the grauniad... this is what happened over this side of the pond.

Spoiler Alert, click show to read: 

An RAF doctor was today jailed for eight months after being found guilty of failing to comply with lawful orders when he refused to serve in Iraq.

Flight Lieutenant Malcolm Kendall-Smith - who likened the invasion of Iraq to a Nazi war crime - was convicted on five charges, including refusing to serve in Basra, by a court martial panel of five RAF officers. He will also be dismissed from the service.

Kendall-Smith, a former university philosophy tutor who has dual British and New Zealand citizenship and is based at RAF Kinloss in Morayshire, Scotland, had argued that the ongoing presence of US-led forces in Iraq was illegal.

He told the military hearing in Aldershot, Hampshire, he had refused to serve in Basra last July because he did not want to be complicit with an "act of aggression" contrary to international law.

Judge Advocate Jack Bayliss told Kendall-Smith that the court martial panel believed he had acted on moral grounds. However, he accused him of an "amazing arrogance" and said the sentence was intended to make an example of him.

"Obedience of orders is at the heart of any disciplined force," he said. "Refusal to obey orders means that the force is not a disciplined force but a disorganised rabble.

"Those who wear the Queen's uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences."

Following the sentencing, Kendall-Smith's solicitor, Justin Hugheston-Roberts, said his client was "shocked" and "distressed" by the judgment and would appeal against the conviction and sentencing.

"He has asked me to say that he feels now, more than ever, that his actions were justified and he would not, if placed in the same circumstances, seek to do anything differently," Mr Hugheston-Roberts said.

"He said this still has a long way to travel and he will now concentrate his efforts on that task."

In court, Judge Bayliss ordered that Kendall-Smith serve half of his sentence in custody and the remainder on licence.

He also told him to pay £20,000 from his personal savings of £140,000 towards his defence costs, which were covered by legal aid.

Kendall-Smith was taken from the court to Colchester military prison, where he will undergo a medical examination and a period of demilitarisation that will see him stripped of his rank and ordered to hand over his uniform and kit.

He will then be transferred to a civilian prison, where he will serve the remainder of his sentence.

Condemning the sentence, Kate Hudson, the chairwoman of CND, said: "All military personnel are required to comply with international law and to be familiar with it regarding warfare and the conduct of war.

"We all know they cannot hide behind the excuse that they are on the receiving end of orders from on high. We have full sympathy for him, and he has our full support. We consider it to be a commendable and moral act."

Kendall-Smith formed his belief that the war was unlawful after serving tours of duty in Kuwait and Qatar at the time of the invasion.

"I have evidence that the Americans were on a par with Nazi Germany with [their] actions in the Persian Gulf," he told the court. "I have documents in my possession which support my assertions.

"This is on the basis that ongoing acts of aggression in Iraq and systematically applied war crimes provide a moral equivalent between the US and Nazi Germany."

He said he had refused to take part in training and equipment fitting prior to the deployment because he believed these were "preparatory acts which were equally criminal as the act itself".

During the hearing, David Perry, prosecuting, said the case against Kendall-Smith was that the orders were lawful and he had a duty to obey them as a commissioned officer.

He added that the question of the invasion of Iraq was irrelevant because it had occurred prior to the charges, which date back to last year.

At the time of the charges, he said, the presence of US-led forces in Iraq was legal because they were there at the request of the country's democratically-elected government.

The charges faced by Kendall-Smith were that, on June 1 2005, he failed to comply with a lawful order to attend RAF Kinloss for pistol and rifle training, failed to attend a helmet fitting on June 6 2005, and failed to attend a training course between June 12 and June 24 2005.

He was also charged with failing to comply with an order to attend a deployment briefing at RAF Lyneham on June 30 2005 and failing to comply with an order to replace a squadron leader for Operation Telic in Basra on July 12 2005.

Kendall-Smith denied that he had refused the order because he did not want to be posted overseas.

[Xiahou]

That's a little harsh, I think.

I'm assuming that American officers make the same oaths (roughly) as Canadian ones do, a key point of which is that they will carry out lawful orders of superior officers.

I won't debate whether the war is illegal or not. The only question is, if this officer truly believes that it is illegal, and therefor that his orders to deploy to Iraq and take part in combat operations are also unlawful, then he has a legal (because of his oath) obligation to refuse those orders.

I felt Lemur covered that angle pretty well. Being ordered to deploy is not an illegal order. And as to whether it's an illegal or immoral war- that's not his call to make when it comes to his role as a soldier.

He's going to jail- and rightly so. And after he gets out, he'll have his dishonorable discharge to follow him around wherever he goes.

[Goofball]

I felt Lemur covered that angle pretty well. Being ordered to deploy is not an illegal order. And as to whether it's an illegal or immoral war- that's not his call to make when it comes to his role as a soldier.

That is still arguing whether or not the order is illegal or not, which is a decision for the courts.

What should drive an individual officer when making his decision is only his or her belief that the order is either legal or illegal. If he or she believes the order to be illegal, then he or she has a legal obligation to refuse it.

The courts may well decide after the fact that the officer's judgement was wrong, and that he or she should be punished, but that should not influence the officer's decision.

He's going to jail- and rightly so. And after he gets out, he'll have his dishonorable discharge to follow him around wherever he goes.

And I can't say that I disagree with that result in this case. But if he truly believes what he is saying, then I also believe that the officer in this case had no choice but to do what he has done.

[Redleg]

From New's Appeal - the applicable part of the determination of Lawful orders

Presumption of Orders Lawfulness
An order is presumed to be lawful. W. Winthrop, Military Law and Precedents 297 (2d ed. 1920 Reprint) [hereinafter Winthrop]. A soldier disobeys an order "on his own personal responsibility and at his own risk." See Winthrop, at 576; MCM, Part IV, para. 14c(2)(a)(i). Appellant contested the orders legality both at trial and on appeal. Appellant bears the heavy burden of showing that the orders were illegal. United States v. Smith, 21 U.S.C.M.A. 231,45 C.M.R. 5, 8(1972).

As this court observed and reemphasized in United States v Rockwood, 48 M.J. 501 (Army Ct. Crim. App. 1998):


An individual soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors.

For there would be an end of all discipline if the seamen and marines on board a ship of war [or soldiers deployed in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their opinion of the Presidents and United Nations intent], and to throw off the authority of the commander whenever they supposed it to be unlawfully exercised.
Rockwood, 48 M.J. at 506 (quoting Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 403, 13 L.Ed. 1036 (Dec. Term, 1851)) (emphasis added) (footnote omitted).

Unless the order requires an obviously illegal act, or is obviously beyond the issuers authority, the servicemember will obey the order:


Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness.
Rockwood, 48 M.J. at 506 (quoting United States v. Calley, 22 U.S.C.M.A. 528, 543, 48 C.M.R. 19, 28 (1973) (quoting Winthrop, at 296-297)). "The success of any combat, peacekeeping, or humanitarian mission, as well as the personal safety of fellow servicemembers, would be endangered if individual soldiers were permitted to act upon their own interpretation" of constitutional, presidential, congressional or military authority, and orders issued pursuant to such authority. Rockwood, 48 M.J. at 506-507.

Moreover, as stated in McCall v. McDowell, 1 Abb. 212 (Cir. Ct. D. California 1867):


The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in an army. If every subordinate officer and soldier were at liberty to question the legality of the orders of the commander, and obey them or not as they may consider them valid or invalid, the camp would be turned into a debating school, where the precious moment for action would be wasted in wordy conflicts between the advocates of conflicting opinions.

2) Political Questions and Nonjusticiability
The military judge correctly determined that the question of the lawfulness of the FYROM UNPREDEP mission was a nonjusticiable political question. This court will respect both the Presidents powers as well as the powers of the nations elected representatives in Congress. Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990). See also Baker v. Carr, 369 U.S. 186, 217 (1962); Huet-Vaughn, 43 M.J. at 115; Rockwood, 48 M.J. at 507.

http://www.mikenew.com/courtopinion.html

[Seamus Fermanagh]

I have not referred to him as a coward nor as a traitor. I will not do so.

As did Muhammad Ali/Cassius Clay during the Vietnam era, he hasn't bolted and run and he is staying to face whatever punishment is meted out after judgement of court.

I think his case is dead in the water and only plays well in the media -- not in any court -- but it is his right to refuse the order, as long as he faces the consequences.

[Navaros]

I felt Lemur covered that angle pretty well. Being ordered to deploy is not an illegal order. And as to whether it's an illegal or immoral war- that's not his call to make when it comes to his role as a soldier.

He's going to jail- and rightly so. And after he gets out, he'll have his dishonorable discharge to follow him around wherever he goes.

Being lured into signing-up for the military based on fraudulent lies by the government means he does not have to follow any order. Especially one to participate in an illegal war.

There is nothing "rightly so" about putting a man in jail for refusing to abide by a contract he entered into as a result of fraudulent lies from the government. As quoted in a post in page 1, the US law does not support punishing anyone for that either.

I think they should dishonorably discharge anyone participating in putting him on trial.

Of course he will be found "guilty" since it's not a real court he is going to and the "guilty" result is a fixed outcome (just like with Saddam). However, that does not mean it is the correct finding.

[Marshal Murat]

Like has been said before.
Soldiers don't pick and choose wars to fight.
Tennyson put it best in "Charge of the Light Brigade"
'Their's not to reason why, theirs but to do and die.' (Something like that)

He signed on with the idea that the Government was going to war to prevent WMDs.

Another quote:
'Two things you never rely on, luck and government'

If he thought that the U.S. was in trouble and signed up, good for him!
He's served his country by volunteering his life for the defense of the United States. He is now bound to follow their orders, if he has a problem with the Army then he shouldn't have joined!
He has been ordered to a war-zone, and as a soldier your bound to follow orders. If you have a problem with the orders then put in writing and submit it. Had he been ordered to-kill these civilians just because they are civilians, rape that girl, blow up that mosque; then those are illegal orders and should be dis-obeyed.

Can you say 'Oh no, can't fight those Iraqis cause they drink Coke! Gosh darn it, I'm a Pepsi man, and I wasn't told that the Iraqi's drink Coke, so I don't want to go there.'
'I can't go to Iraq because the land is desert. I can't stand desert, and when I signed up, I wasn't told I would have to encounter sand and desert conditions. This war is illegal because I'd be fighting in the desert."

[Del Arroyo]

Being lured into signing-up for the military based on fraudulent lies by the government means he does not have to follow any order. Especially one to participate in an illegal war.

This is completely and utterly preposterous. If we could read a copy of his contract, I can guarantee you it would not contain anything even resembling an exemption from duty for political reasons.

He took an oath to uphold the US Constitution against all enemies foreign and domestic, period. And if he thinks that him going to Iraq will somehow violate the Constitution, he is simply wrong.

Again, it would be nice if someone could kindly define on exactly which grounds they confidently assume this war in Iraq to be "illegal". Because I have not been able to find any valid grounds so far. And public opinion is most surely irrelevant to any such definition.

..

inappropriate comment removed ~Ser Clegane

[Patriarch of Constantinople]

Again, it would be nice if someone could kindly define on exactly which grounds they confidently assume this war in Iraq to be "illegal". Because I have not been able to find any valid grounds so far. And public opinion is most surely irrelevant to any such definition.

I hear these "illegal" accusations from people who have,

A. Never served in an Army
B. Have some bias against an Army (like was kicked out)
C. Have some bias against the Armies government
or D. Have no idea how war works, or what a soldier is expected to do

[Marshal Murat]

Calm down man.

Personal opinion should rarely restrict a man from his duty to defend the Constitution.
If you were German, but had to fight the Germans to protect the world from Facist, Anti-Semitic rule, would you do it? It depend on your patriotism, nationalism, and a billion other factors. It however would boil down to whether you are going to fight for or against the U.S. If your not going to fight the Germans, then you should resign IMMEDIATELY.
Don't just sit there, and then when the call comes in you say "OOPS, sorry, no-can do man. I'm German! I can't kill my neighbors."

Overall
I'll admire his spirit, but thats more a political activist and like the courtmartial says 'conduct unbecoming of a gentleman and an officer.'

[Navaros]

He took an oath to uphold the US Constitution against all enemies foreign and domestic, period. And if he thinks that him going to Iraq will somehow violate the Constitution, he is simply wrong.

Iraq was not the USA's enemies, Saddam even said he didn't want a war with the USA. Going to Iraq wouldn't be upholding anything other than fraudulent lies by the US government and possibly crusading for Oil.

I find it very interesting how many posters in this thread completely ignore the fact that he was lured to sign-up to the army based on fraud by the government. That gets sweeped under the rug as if it doesn't exists because it is an inconvenient fact.

Also the UN said that USA can't invade Iraq, but USA did anyhow. Another inconvenient fact that keeps getting swept under the rug.

[Sasaki Kojiro]

I'm assuming that American officers make the same oaths (roughly) as Canadian ones do, a key point of which is that they will carry out lawful orders of superior officers.

I won't debate whether the war is illegal or not. The only question is, if this officer truly believes that it is illegal, and therefor that his orders to deploy to Iraq and take part in combat operations are also unlawful, then he has a legal (because of his oath) obligation to refuse those orders.

So call him names all you want, but on the face of it he seems like an honorable individual to me. He hasn't run away. He's made a difficult decision and chosen to take his case to court and accept the consequences, one way or the other.

Exactly.

[PanzerJaeger]

That's a little harsh, I think.

BTW, good to see you back, PJ. Happy New Year.

When have I ever been anything but harsh?

Good to see you're still posting too, are you still under deployment?

[Goofball]

When have I ever been anything but harsh?

Good to see you're still posting too, are you still under deployment?

No, they haven't deployed me anywhere operationally yet, and won't for quite some time, as I'm not fully trained yet. I did basic last summer (2006), then I have another 3 months to do this summer (section commander qualification), then another 3 months in 2008 (dismounted platoon commander qualification) before I'm finally qualified.

Things take a long time when you're only a weekend warrior...


The good news is that I'll be totally qualified by 2010. Rumor has it our unit will be providing security for the Vancouver/Whistler Winter Olympics. I'm pretty pumped about that...

[Mooks]

I wouldnt want to fight in Iraq either. And im by far not a coward. A nation should fight a war to protect itself, or to expand its interests (Kind of like what you do in Totalwar games). I can see no benefit that the war in Iraq has given to the united states, its a fool's war.

[Productivity]

As much as I think the war in Iraq is farce and agree with the guys opinion. Once you VOLENTEER for the army - then you DONT have an opinion you follow orders full stop. Its not his problem if he thinks its right or wrong - he needs to do what he told and not think.

That's not exactly true. If what you are being ordered to do is illegal or utterly wrong you can refuse to carry it out. It's a long proven precedent that being ordered to do something doesn't absolve you of guilt for doing it, the flipside of that is that you have to refuse what you beleive is ilegal.

[Keba]

While it is an interesting case, the point is that he did join under deception.

I have no doubt that he'd be quite willing to go to Afghanistan, should he be ordered, but he was ordered to Iraq.

Still, I'm not sure I quite agree with his actions, but I certainly see the reasoning in them, and the danger he is to the whole operation. If he is absolved of guilt by the tribunal, there will be a very, very dangerous precedent, and there'll be soldiers and officers just lining up to leave.

If what you are being ordered to do is illegal or utterly wrong you can refuse to carry it out. It's a long proven precedent that being ordered to do something doesn't absolve you of guilt for doing it, the flipside of that is that you have to refuse what you beleive is illegal.

Took the words out of my mouth, though, to be pedantic, a soldier may only refuse to commit an illegal order, not one that he considers morally wrong, but yes.

The key question is still whether the orders for transfer are illegal or not. The invasion certainly is, but I'm not so sure about the orders. If he had said this when assigned to the troops meant to participate in the initial invasion, it would be a no-brainer, but as it is ... well, the decision could go either way.

[Productivity]

a soldier may only refuse to commit an illegal order, not one that he considers morally wrong, but yes.

Under law yes, in practice no. If hypothetically I, an Iraqi soldier knowingly executed (innocent) Kurdish civilians, despite it being legal under Iraq's laws at the time, would I be hanging today along with Saddam? I think the answer is yes. People have a bad habit of making retro-active laws, often on grounds of morality - see Saddam Hussein. I've yet to see anyone actually show that he did anything *illegal* under Iraqi law at the time, yet he's dead now.

[Xiahou]

The key question is still whether the orders for transfer are illegal or not. The invasion certainly is, but I'm not so sure about the orders. If he had said this when assigned to the troops meant to participate in the initial invasion, it would be a no-brainer, but as it is ... well, the decision could go either way.

I really didn't have any interest in going down this worn path again, but... the invasion certainly was not illegal- that much is clear. It was ordered by our elected (and re-elected) chief executive, approved by our legislature and is today continually funded (thereby implicitly approved) by our legislature. Go read the AUMF- the Congress was quite capable of spelling out it's own reasons to authorize force, it wasn't "because Bush said so, and we trust him completely".

The only grounds some try to claim illegality on is the international/UN scene, but: 1)That dismisses Watada's bogus Constitutional argument (which doesn't hold up anyway) and 2)It hasn't been determined to be illegal under the UN to begin with.

[Keba]

It was illegal in that it wasn't preceeded by a formal declaration of war, which is kinda necessary.

Secondly, well, the UN Security Council is required to declare any invasion illegal, and we all know how good the Security Council is at reaching decisions.

[caravel]

Volunteer or not, he is right in his convictions. The war is illegal. When someone joins the military in any country, they may do so for a variety of reasons. The one thing they expect though, is to fight in the defence of their country, in the defence of allies, or against those that pose a threat to their country or allies. The Iraq war does not fit into any of those categories. Iraq never posed a threat to the US or any of it's allies. The WMD claim was entirely false and used a pretext. In view of this you cannot blame, military personnel for feeling deceived and even betrayed. The Bush Administration, with a helping hand from Tony Blair, created this mess, and have been sending men to their deaths ever since. For what? The Situation in Iraq is now far worse, and far more have now died as a result of the US led invasion than died as a result of Sadam Hussein's Ba'athist regime. The whole thing appears hypocritical and false. Also to imply that military personnel are some kind of mindless drones that should simply carry out orders without question does them a disservice. Both governments have admitted they've made "mistakes", but are now adopting the "well now we're in and can't pull out till the 'job' is done" line, while just hoping that public forgets all of the pre war WMD spin, lies and the bollox they've made of the whole operation and Iraq itself.

[BigTex]

Legality is a ridiculous argument for a war. Legality of a war is decided by the more powerful. Currently that means this war is legal nav.

As for this man he should be shot for desertion. He volunteered for the military, fully aware of what that meant. He has sworn to uphold the constitution, and the senate has approved military action. He's deserted his comrades and slandered the name of his commander in chief. Give him the choice of Iraq or Death, I think then he'll recall his previous commitments.

[Redleg]

It was illegal in that it wasn't preceeded by a formal declaration of war, which is kinda necessary.

Secondly, well, the UN Security Council is required to declare any invasion illegal, and we all know how good the Security Council is at reaching decisions.

Care to guess how many wars the United States has fought in the last 60 years without a formal declartion of war.

Give you a small hint - all of them since 1946.

Calling the war illegal is incorrect for this officer since frankly Congress authorized the use of force against Iraq. The courts martial will go badly for him if this is his arguement. Hopefully his lawyer has a better defense then the one protrayed in the article.

[Lemur]

That's not exactly true. If what you are being ordered to do is illegal or utterly wrong you can refuse to carry it out. It's a long proven precedent that being ordered to do something doesn't absolve you of guilt for doing it, the flipside of that is that you have to refuse what you beleive is ilegal.

That argument has been applied to specific actions, never to deployments. Was this soldier asked to serve in a concentration camp? No. Was this soldier asked to shoot down a civilian? No. Was he ordered to behead kittens? Nope. Did his C.O. tell him to rape someone? Nuh-uh. He was merely deployed, which is a pretty low standard for an illegal order.

Arguing that the entire war is a war crime is a stretch for a soldier, and frankly, above his pay grade. The whole issue of illegal orders is tricky, but I think it's safe to assume that serving soldiers are not allowed to make sweeping decisions of state and national interest. If he had been issued a specific illegal order, that would be a different thing. But on the face of it, there's nothing illegal about ordering a soldier to deploy in an ongoing conflict.

[edit]

Here's a good beginner's article on the distinction between legal and illegal orders. From the Manual for Court-Martials:

"An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."