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

[lars573]

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.

Impossible, he never left the base. And most civilize nations these days only level the death penalty for desertion after war is declared. Which is hasn't.

[Del Arroyo]

*$%^&#!@ Lieutenant college-boy *&%*-bag

[Redleg]

This will most likely go the route of the soldier who attempted to refuse to wear the Blue Beret when his unit was tasked for deployment to Bosnia

http://www.jefflindsay.com/MichaelNew.shtml

A condense timeline from Michael New's website.

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

[Seamus Fermanagh]

Impossible, he never left the base. And most civilize nations these days only level the death penalty for desertion after war is declared. Which is hasn't.

Correct. The charges brought forward are the appropriate ones. The USA has not executed someone for desertion/cowardice in the face of the enemy since the 2nd World War.

However, the UCMJ does not require that war be declared to level such a punishment (though in practice that has been the standard).

Note: according to a number of constitutional scholars, Congress' "blank check" authorization effectively did declare war, or more accurately allowed the President to declare and wage war as needed to combat extra-national terrorism with the permission of Congress.

I have no doubt that many in Congress regret that vote, and that most Constitutionalists in the USA would view it as Congress' "woosying out" on doning their appointed job. I do not like Carte Blanche powers -- especially without a sunset clause, in the hands of the executive.

[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.

[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.

[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.

[Xiahou]

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.

One important distinction I'd draw is that Ali was drafted, whereas Watada volunteered.

I won't say he's a coward either. But I will say, again, that he's wrong in virtually every way on this issue.

[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.

[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."

[Patriarch of Constantinople]

I think the answer is simple here:

When you go into any army, you follow orders, you don't have the choice of going. This man should know that when you join an army, you have to accept the fact that you may have to go to war. No question. If you fail to realize this, you shouldn't be in the army.

[Patriarch of Constantinople]

Being lured into signing-up for the military based on fraudulent lies by the government

No, he chosed to, it's his decision. No one said "Hey behind this door is a sheet, ignore the writing and sign up for it, and you'll get spectacular prizes"

[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.'

[Patriarch of Constantinople]

I'll admire his spirit

I simply can't.

"You're going to Iraq, you know what the possibility of going was"

"But I can't do it"

"Why not? You're a soldier, you can't simply say 'no'"

"The war is illegal"

"Really? Are we blowing up cars in buildings?"

"It's still illegal"

[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.

[Patriarch of Constantinople]

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.

Oh for God's sake. That is the stupidest thing I have ever heard. "He was lured by lies of the government". That makes no damned sense. My uncle, in Iraq, signed up because he knew he had the probability of going to Iraq, he accepted it. This little sissy is just scared to go to war, and shouldn't have signed up in the first place. It's called freedom of choice, in America, which means no one is forcing you to do anything, or think like they do. That's Fasicm.

[Navaros]

. It's called freedom of choice, in America, which means no one is forcing you to do anything, or think like they do. That's Fasicm.

Again, this is neglecting that he was induced to making a choice based on fraudulent information, therefore he cannot be reasonably "held" to a choice like that.

[Patriarch of Constantinople]

Again, this is neglecting that he was induced to making a choice based on fraudulent information, therefore he cannot be reasonably "held" to a choice like that.

Evidence? Is there any evidence a government worker came up to the guy and said "hey, join the army, just do it, you'll get candy"

[Yun Dog]

I dunno chaps

I think the questions about the war and its motivations are irrelevant here.

If you have an army of soldiers deciding if they believe a war is just or right - then you dont have an army.

If you have questions regarding the way your government conducts itself then I would suggest you not join its armed forces, if you believe in defending your country but not in fighting foreign war then I would say dont join the army.

as far as being an officer and a gentlemen - that depends on how you behave once you get there - ie making good out a bad situation. This guy is neither IMO.

The most I can say for him was he was/is very nieve - but he should not have volunteered for the army

men drafted - its a different situation - I will understand a conscientious objection from a draftee - why the army doesnt like them because they make low moral troops.

When I learned about the Vietnam war - I knew I would never fight on behalf of the government of my nation - were our home soil to be invaded - then I would fight to protect those I care for.

If you join the crusade - well what do you expect

[Mooks]

Im suprised that noone mentioned that in the article it said his father didnt go to vietnam either, but wimped out and joined the peace corps in peru (Of course, he couldve been just playing it safe)

[Patriarch of Constantinople]

Sure, the guy could've signed up for a different role, maybe peacecorps.