Quote Originally Posted by KukriKhan
A couple of side questions for the peanut gallery:

1) If the CMA (Court of Military Apeals) or SCOTUS did find that the order was unlawful, does that then implicate every soldier who did comply, in a crime? Are they guilty then of war crimes, for failing to disobey?
To expand on what Redleg said, I would add the following. The CMA is very much UNLIKELY to rule in favor of the defense. Having received an order from National Command Authority via the duly promulgated chain of command to participate in military action that furthers the interests of the USA and has been authorized by Congress and which is not obviously in contradiciton of the accepted laws of war (no "shoot the civilians" kind of thing), nothing within the military is out of line.

His view of the war as "unlawful" can only rest on one of two instances.

1. Congress had no right under the Constitution to grant the Executive the power to begin hostilities without a formal declaration of war. While I think Congress was a collective bunch of schmoes trying to side-step responsibility when they issued Bush his terrorsit hunting license in the fashion they did, they did do so. Moreover, based on the information then available, they voted again to authorize action in Iraq. I don't think this will fly as "unlawful" from a Constitutional angle.

Even if SCOTUS rules that Congress was operating outside the intent of the Constitution in this instance, the military was responding to what seemed to all parties concerned to be a legitimate authorization of the use of force in a manner not contradictory to the accepted "guidelines" for waging war. In that sense, there will be no "war crime" for having failed to disobey. In this instance, Waneda may spark an important Constitutional decision -- that the Congress cannot delegate its power to declare war -- but still end up losing his appeal.


2. That the action of the United States and its coalition partners was, from its inception, a war of aggression -- a type of war forsworn by the USA in its signed participation in the UN. This argument takes as its base the idea that the Bush administration purposefully suppressed information/actively lied so as to make Saddam's Iraq appear to be a threat for the express purpose of conquering Iraq and installing a satrapy in the Middle East. In this instance, Waneda would win his appeal. By corallary, any persons involved in the active deception of Congress to secure the authorization for hostilities would have been responsible for war crimes/crimes against humanity.

I don't think this will occur because the USA will not submit itself to review in the Hague or wherever they would hold such an inquiry, while the CMA and the SCOTUS -- being bound respectively by the UCMJ and the Constitution, will not address this issue in their reviews.

Quote Originally Posted by KukriKhan
2) By refusing to deploy, the Lieutenant, by definition, forced some other Lieutenant to go, who would not have otherwise needed to deploy. If that guy gets killed or hurt, is 1LT Watada culpable?
Only to the extant that he refused orders to deploy. He did so refuse and is standing court martial etc. -- and will likely be punished -- for that decision. He is neither guilty of negligence in putting someone else in harm's way (he did not simply go over the hill and leave his unit in the lurch), nor is he the one who would have/will have harmed the other lieutenant. He may feel morally responsible on a personal level -- that's a matter for his conscience.