It's hitting the fan: Miltary judge agrees: Iraq war is illegal

[thebullet]

Navy Judge Finds War Protest Reasonable
By Marjorie Cohn
t r u t h o u t | Report

Friday 13 May 2005

"I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
-- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes' court-martial

In a stunning blow to the Bush administration, a Navy judge gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing orders to board the amphibious assault ship Bonhomme Richard before it left San Diego with 3,000 sailors and Marines bound for the Persian Gulf on December 6th. Lt. Cmdr. Robert Klant found Pablo guilty of missing his ship's movement by design, but dismissed the charge of
unauthorized absence. Although Pablo faced one year in the brig, the judge sentenced him to two months' restriction and three months of hard labor, and reduced his rank to seaman recruit.

"This is a huge victory," said Jeremy Warren, Pablo's lawyer. "A sailor can show up on a Navy base, refuse in good conscience to board a ship bound for Iraq, and receive no time in jail," Warren added. Although Pablo is delighted he will not to go jail, he still regrets that he was convicted of a crime. He told the judge at sentencing: "I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is illegal."

Pablo maintained that transporting Marines to fight in an illegal war, and possibly to commit war crimes, would make him complicit in those crimes. He told the judge, "I believe as a member of the armed forces, beyond having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme law of the land. Both of these higher duties dictate that I must not participate in any way, hands-on or indirect, in the current aggression that has been unleashed on Iraq."

Pablo said he formed his views about the illegality of the war by reading truthout.org, listening to Democracy Now!, and reading articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi Annan's statements that the war is illegal under the UN Charter, and material on the Nuremberg and Tokyo tribunals.

I testified at Pablo's court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by US forces. My testimony corroborated the reasonableness of Pablo's beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the US War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.

I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...." Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

I concluded that the Iraq war is illegal. US troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq - to fight in an illegal war, and possibly to commit war crimes - Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.

On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the US wars in Yugoslavia and Afghanistan also violated the UN charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

The Navy prosecutors asked the judge to sentence Pablo to nine months in the bbrig, forfeiture of pay and benefits, and a bad conduct discharge. Lt. Brandon Hale argued that Pablo's conduct was "egregious," that Pablo could have "slinked away with his privately-held beliefs quietly." The public nature of Pablo's protest made it more serious, according to the chief prosecuting officer.

But Pablo's lawyer urged the judge not to punish Pablo more harshly for exercising his right of free speech. Pablo refused to board the ship not, as many others, for selfish reasons, but rather as an act of conscience, Warren said.

"Pablo's victory is an incredible boon to the anti-war movement," according to Warren. Since December 6th, Pablo has had a strong support network. Camilo Mejia, a former Army infantryman who spent nine months in the brig at Fort Sill, Oklahoma, for refusing to return to Iraq after a military leave, was present throughout Pablo's court-martial. Tim Goodrich, co-founder of Iraq Veterans against the War, also attended the court-martial. "We have all been to Iraq, and we support anyone who stands in nonviolent opposition," he said. Fernando Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq, came to defend Pablo.

The night before his sentencing, many spoke at a program in support of Pablo. Mejia thanked Pablo for bringing back the humanity and doubts about the war into people's hearts. Sheehan, whose son, K.C., died two weeks after he arrived in Iraq, said, "I was told my son was killed in the war on terror. He was killed by George Bush's war of terror on the world."

Aidan Delgado, who received conscientious objector status after spending nine months in Iraq, worked in the battalion headquarters at the Abu Ghraib prison.
Confirming the Red Cross's conclusion that 70 to 90 percent of the prisoners were there by mistake, Delgado said that most were suspected only of petty theft, public drunkenness, forging documents and impersonating officials. "At Abu Ghraib, we shot prisoners for protesting their conditions; four were killed," Delgado maintained. He has photographs of troops "scooping their brains out."

Pablo's application for conscientious objector status is pending. He has one year of Navy service left. If his C.O. application is granted, he could be
released. Or he could receive an administrative discharge. Worst case scenario, he could be sent back to Iraq. But it is unlikely the Navy will choose to go
through this again.

--------------------------------------------------------------------------------
Marjorie Cohn, a contributing editor to t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers
Guild, and the US representative to the executive committee of the American Association of Jurists.

 

[LadyJeanne]

Interesting:

"He told the judge at sentencing: "I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is illegal." "

I have to wonder why he joined the Navy in the first place if he believes war is immoral. What did he think he'd be doing?

 

[BlackShanglan]

I have to wonder why he joined the Navy in the first place if he believes war is immoral. What did he think he'd be doing?

You know, I was wondering that myself. I think it's important that we allow for consciencious objectors to follow their morals, but it's a bit more difficult to explain when there is no draft. I'm strongly in favor of people refusing to fight wars if they don't believe in war, but it seems a bit cynical to draw a paycheck from the Navy while doing it.

 

[Dar~]

(from a military perspective, bcause I am a military wife)

A lot of men and women join the military thinking there isn't going to be a war. They join up thinking that they will get a paycheck playing at "war"

Realistically about 80% of the armed forces are 18 year olds fresh out of high school who for one reson or another thought it was the right thing to do. Most of them b/c they wanted to travel, some for the Montgomery GI bill (to pay for college), someof them b/c they just weren't ready for the real world. Most of the latter didn't and still don't realize that there are few jobs as real world as the military.

The Air Force is trying like mad to reduce it's force, so they offered early out on the contracts of whoever wanted out right after 9-11. You would not believe the number of people who got out on the grounds of "not thinking [they] would actually have to fight." It's scary.

 

[LadyJeanne]

(from a military perspective, bcause I am a military wife)

A lot of men and women join the military thinking there isn't going to be a war. They join up thinking that they will get a paycheck playing at "war"

Realistically about 80% of the armed forces are 18 year olds fresh out of high school who for one reson or another thought it was the right thing to do. Most of them b/c they wanted to travel, some for the Montgomery GI bill (to pay for college), someof them b/c they just weren't ready for the real world. Most of the latter didn't and still don't realize that there are few jobs as real world as the military.

The Air Force is trying like mad to reduce it's force, so they offered early out on the contracts of whoever wanted out right after 9-11. You would not believe the number of people who got out on the grounds of "not thinking [they] would actually have to fight." It's scary.

I find that amazing. Both Clinton and Bush I sent troops into various military actions even before Bush II - you kinda have to expect that you'll be involved in some sort of fighting at some point if you join the military. I mean, that's their thing. I'm not going to work for Juicy Steaks R Us if I think killing animals for meat is immoral, even if I don't expect to do the killing myself.

 

[thebullet]

The kid was exonerated because he argued that the war in Iraq is illegal, not that he was a conscientious objector against all wars. His lawyer presented various proofs from the United Nations and other sources that showed that our entrance into this war was against American law, and that our armed forces are performing illegal acts in Iraq right now.

This ruling did not imply that all or even most wars are illegal. Apparantly the government brought up the Clinton wars in central Europe and the court agreed that those wars, too, were illegal - not the result the government wanted, by the way.

But this was not a general condemnation of war, nor was it a 'get out of jail free' card for all those who don't want to fight in any war. The verdict went specifically to the war in Iraq. It allowed that the seaman was justified in refusing to go to that war alone, since that war is illegal - thus opening himself up to the possibility of charges of being a war criminal.

Jeez, do you think that some other members of the military might start refusing to go to Iraq after this verdict?

 

[Dar~]

Bullet, forgive me if I am wrong, but it seems to me that you have a really poor view of American troops. You seem extremely unsupportive and very caustic when it comes to the soldier who are paid to fight and die for your freedoms.

I dont' care if we are in a war they don't agree with, the point of the thing is that these men will and do fight and die for your freedoms. Tis particular war may not seem to affect you, bu tsomething else may happen and then your freedoms may need deefending.

I hope I am wrong, but I just had to say that regardless of your political views and opinions, these men and women are here for you, your families, and they take a lot of crap.

 

[elsol]

I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which obtained before Bush invaded Iraq.

This is an unacceptable measure of a legal war.

Consider then an attack on Great Britain by a vetoing member of the Security Council... like China.

It would be illegal for the US to come to the defense of its strongest ally because it would not be:

a) In self-defense
b) China could veto the resolution.

In fact, this disintegrates any concept of 'military allies' on a world stage.


Sincerely,
ElSol

 

[Op_Cit]

I have to wonder why he joined the Navy in the first place if he believes war is immoral. What did he think he'd be doing?

I wouldn't completely condemn him, everybody makes mistakes. Some people do learn over time. If he has come to this conclusion unbiased by short term issues of self preservation, then good for him. (Also, someone may have left out the Nuremberg qualifier "aggressive" before the word "war" when he said it was immoral.)

But it's a good point: what should one expect when he signs away whatever personal freedom he has?

The real story here is the judge going against the military, usually these higher profile things are decided before they even start the courtroom charade.

 

[BlackShanglan]

I find that amazing. Both Clinton and Bush I sent troops into various military actions even before Bush II - you kinda have to expect that you'll be involved in some sort of fighting at some point if you join the military.

I think the key issue here is this: "How many 18-year-olds lacking in direction and unclear about their goals in life paid a great deal of attention to the 'current events' portion of their high schools Civics classes?"

That said, The Bullet is, of course, right in that the judge's ruling really hasn't got anything to do with Mr. Paredes' general anti-war statement. I agree that the ruling on the legality of the war is a seperate matter. I do, however, find it intriguing that Mr. Paredes chose to joined the armed forces when cumbered with what would appear to be a substantial objection to their core goals and methods. It does seem to throw some doubt on his personal ethical position, leaving aside the question of the war's legality.

This is an unacceptable measure of a legal war.

Consider then an attack on Great Britain by a vetoing member of the Security Council... like China.

It would be illegal for the US to come to the defense of its strongest ally because it would not be:

a) In self-defense
b) China could veto the resolution.

In fact, this disintegrates any concept of 'military allies' on a world stage.


Sincerely,
ElSol

Now that is a genuinely interesting point. But isn't there some sort of law about supporting one's allies when they are attacked? Or am I thinking of the NATO articles?

I'm torn on the war issue myself. On the one hand, the WMD evidence never turned up, and I had trouble from the start believing that Hussein was a substantial direct threat to the United States. On the other hand, I didn't think that the evidence re: WMD's was that bad when we went to war. I know it's hardly scientific evidence, but I suppose that a good part of me felt that it would be damned peculiar for a man to risk the invasion of his country over weapons inspections if he wasn't hiding anything. I suppose that I probably just don't understand the complexities of whatever Mr. Hussein was up to, but it honestly baffled me that they found nothing. If he had nothing, why didn't he just say "Look, nothing here! Now stop talking about invading me"?

I mention this because El Sol's post reminded me of the other issue there. The UN is composed of member nations whose leaders all have one very big goal in front of them: staying in power. Because of this, it's extremely difficult to get them to take action against the current regime of any country, regardless of how corrupt or oppressive it is. No one wants to set the precedent for having corrupt, abusive regimes removed or even substantially challenged, because so many of them are in the same boat. So that issue of "with the approval of the Security Council" becomes less a measure of "when it really, honestly is needed and there's good evidence to show it" and more "when the sky falls and we all catch larks for dinner."

I think it's hard to look at the situation in Iraq at the moment and call it an ideal solution to anything. However, I think that the UN has also to some extent brought this upon themselves - and, alas, upon the Iraqi people. One of the first rules one learns in any position of authority - whether parent, teacher, supervisor or simply dog trainer - is not to make demands that one cannot or will not enforce. The UN had been mucking about with the inspections issue in Iraq for a decade, issuing demand after demand with increasing levels of "we really, really mean it this time!" attached to them and otherwise accomplishing very little. Issuing demands that you don't back is actually worse than doing nothing. If one does nothing, one leaves open the possibility that one simply chooses not to act. By making demands that can't be backed up, one advertises to all that one is incapable of acting. That's a serious problem, and one that is it hard to envision solving within the current structure of the UN. No one cares to act, but everyone would like no one else to act without their permission. The problem is that this enshrines the status quo and leaves no reasonable means for achieving effective action. When on creates a situation in which grievances are not effectively managed and action appears impossible, one does almost inevitably encounter someone who cracks and lashes out on his/her own.

Oh, and Dar - I really didn't see what you've said about Bullet. S/he's only posted a news article and discussed the legality of the war. I didn't think that that was an insult to the servicemen and women there. I have great respect for those who serve our country, and I think that Bullet does too.

Shanglan

 

[thebullet]

Dar said:
Bullet, forgive me if I am wrong, but it seems to me that you have a really poor view of American troops. You seem extremely unsupportive and very caustic when it comes to the soldier who are paid to fight and die for your freedoms.

Dar, I forgive you.

Please find any post I ever made that opposed or failed to support our troops. You can read any of the 600+ posts I've made on Literotica in the past year or two and you will find none in opposition to our troops. I have opposed the war in Iraq from the beginning. I've always felt it was an illegal war. Looks like a military judge in the Navy agrees with me.

Do you interpret this thread to be opposed to our troops? I'm sure you don't, because this thread offers no opinion about the troops, positive or negative.

What's more, I personally made no comment one way or the other about what I felt about the above mentioned incident, though I do find it rather amusing. I merely posted the article with no comment. In a later post I mentioned some of the facts stated in the article as a means of clarifying things. Again I offered no opinion about the comments.

My wife's cousin is currently fighting in Iraq. The day before yesterday he survived a morter attack. Believe me, I support him. I also wish he weren't endangering his life in this worthless war in Iraq.

Dar, it is possible to support the troops while oposing an administration that sent them to fight in a war while lying about the reasons for being there.

Our troops are at the mercy of an administration that doesn't care for them, IMHO.

Speaking of our freedoms, I think it is time for people to fight for our freedoms at home. The war in Iraq has nothing to do with our freedoms.

I kinda think it might be about oil.

 

[shereads]

Who else suspects that the reason we're about to close a bunch of military bases in the U.S. is because we expect all of our troops to remain overseas?

 

[BlackShanglan]

Who else suspects that the reason we're about to close a bunch of military bases in the U.S. is because we expect all of our troops to remain overseas?

I thought I heard on the radio that they are also closing overseas bases? I seem to recall it as a part of a discussion about where those servicemen were going, with Dept. of Def. saying "back to the US."

Shanglan

 

[thebullet]

Shereads wrote:
Who else suspects that the reason we're about to close a bunch of military bases in the U.S. is because we expect all of our troops to remain overseas?

We were sitting here watching the news about the closing of bases. My wife asked me what the real reason was to close these bases. Then my email went off and I saw your post. Eureka!!

 

[oggbashan]

In the UK, recruitment enquiries for our armed forces increase whenever we are in a shooting war. Our recruits know what they are joining.

Our armed forces have been shooting at somebody or being shot at in every year but one for the last 300 years. I think 1965 was the 'lucky' year.

The list of countries that we have fought against in that time includes almost everyone except Switzerland and Portugal.

Og

 

[Wildcard Ky]

What a completely skewed article.

Firstly, you claim that the kid was exonerated, lets look at the sentence: Seaman Pardes was found guilty of Missing movement. He was restricted, got three months of hard labor, and was reduced in rank to E-1. No, he's not actually spending all of his time in a 6x8 cell, but don't be fooled into thinking he walked away from this scott free. He can't leave the base, he lost all of his rank, and he's doing hard labor. Doesn't sound like he was exonerated to me.

You also claim that he wasn't a conscientious objector to all wars, yet it says in the article that he has applied for CO status, and is awaiting a decision from the Navy. So which is it, is he a CO, or isn't he? I'd say he is since he's applied for CO status.

The writer portrays it as a blow to the Bush administration. I don't see it. Is it a blow to the Clinton administration as well? Yugoslavia is specifically named.

If the war is truly illegal, why hasn't anyone been charged? Bush hasn't been charged over Iraq or Afghanistan. Clinton wasn't charged over Yugoslavia or Ethiopia. Could it be that <gasp> the president actually does have the power to do these things?

We are not bound BY LAW to follow the UN CHARTER concerning self defense or security council approval. It is an agreement, it is not a law. The president can LEGALLY choose not honor that agreement, just as Bush and Clinton did. Some may not like it, but it is within their LEGAL power to do so. If it weren't, someone would have been charged with a crime. It is not in violation of law.

Lastly, you COMPLETELY misrepresent what the judge said. You and the author claim that the judge said the war is illegal. Go back and read what the judge actually said.

... the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

He didn't say that they were illegal. He said that a service member has reasonable cause to believe. Huge difference. The judge never said the war is illegal, however you start a thread called It's hitting the fan: Miltary judge agrees: Iraq war is illegal

Maybe you should try to get past your bias and hatred. Apparently it skews your perceptions of what you read, and what people actually say.

 

[BlackShanglan]

In the UK, recruitment enquiries for our armed forces increase whenever we are in a shooting war. Our recruits know what they are joining.

Our armed forces have been shooting at somebody or being shot at in every year but one for the last 300 years. I think 1965 was the 'lucky' year.

The list of countries that we have fought against in that time includes almost everyone except Switzerland and Portugal.

Og

I seem to recall that the latest figures had the army missing recruitment goals by something 25% for this month. Fortunately, they've got a solution: they are closing down all recruitment offices for an internal review so that they can determine why people don't care to sign up at this particular moment in time.

I wonder what they will conclude.

 

[Guest]

Sounds to me like this judge just gave licence and precedent for mutiny.

God help us.

 

[shereads]

In the UK, recruitment enquiries for our armed forces increase whenever we are in a shooting war. Our recruits know what they are joining.

To avoid the politically unsavory issue of reinstating the draft, the U.S. has changed the rules under which our service people signed up. Reservists, who are supposed to be called on an emergency basis, have been in Iraq and Afghanistan so long that their employers can't hold their jobs for them, and some will lose their homes because their service pay isn't enough to pay the mortgage.

Americans aren't shy about signing up for military duty during wartime - At the beginning of the Iraq war, recruitment was up. Since then, with all the patriotic talk about supporting the troops, we've reduced funding to veterans' hospitals and benefits to military families. People who might otherwise have been willing to go have learned an ugly lesson about trust. Except as a last resort when jobs are scarce, what could compel someone to sign up for a term of service whose end date is meaningless, knowing how little will be done for them and their families in return? Especially for a war that pretended to be in our defense, and turned out to be based on lies?

It's shameful that there are men and women who did their duty in Afghanistan, were sent back for Iraq and have had their scheduled return to the U.S. canceled two and three times. Just so nobody in Washington will have to admit that our military is over-extended.

And we haven't even started on the countries that really do have WMD programs.

 

[SeaCat]

Sounds to me like this judge just gave licence and precedent for mutiny.

God help us.

This is much like what I was thinking.
My question is this. Does his refusing to be at his post, at the assigned time, for service in a combat theater constitute desertion?

Cat

 

[elsol]

This is much like what I was thinking.
My question is this. Does his refusing to be at his post, at the assigned time, for service in a combat theater constitute desertion?

Cat

No.

He would be AWOL as desertion carries the implication is for someone to stay away permanently.

Regardless, this is neither desertion or AWOL... he REFUSED a direct order, he didn't flee or anything like that.

Sincerely,
ElSol

 

[Wildcard Ky]

This is much like what I was thinking.
My question is this. Does his refusing to be at his post, at the assigned time, for service in a combat theater constitute desertion?

Cat

No. Desertion is someone that leaves secretly with no intention of returning. i.e. sneaking out in the middle of the night and not being in any contact with anyone.

He was found guilty of missing movement. His ship was supposed to leave (move), and he refused to get on the ship. His supervisors and the Navy knew where he was at all times, so he didn't desert.

 

[Huckleman2000]

This is an unacceptable measure of a legal war.
Consider then an attack on Great Britain by a vetoing member of the Security Council... like China.
It would be illegal for the US to come to the defense of its strongest ally because it would not be:

a) In self-defense
b) China could veto the resolution.

In fact, this disintegrates any concept of 'military allies' on a world stage.
Sincerely,
ElSol

This doesn't negate treaties of mutual defense. Under NATO, an attack on any member is considered an attack on all. Actually, it was under NATO auspices that Clinton's government justified the Bosnian intervention. Not sure exactly how, but I think it had to do with defense of our NATO allies from the encroaching war in Bosnia. The world has a bad history with wars spilling out of the Balkans.

I'd like to see the argument that led to the Judge's remark about the government making the case that all three incursions could be illegal - that must have been some pretty fancy lawyerin'!

 

[elsol]

This doesn't negate treaties of mutual defense. Under NATO, an attack on any member is considered an attack on all. Actually, it was under NATO auspices that Clinton's government justified the Bosnian intervention. Not sure exactly how, but I think it had to do with defense of our NATO allies from the encroaching war in Bosnia. The world has a bad history with wars spilling out of the Balkans.

By the definition given here... two things are required for a war to be UN legal

a) It be in self-defense.
b) It be approved by the UN Security council.

I've yet to find a 'self-defence' definition that includes someone other than oneself. Even killing to save your child would be considered in defense of 'another'.

The run-around is that it's not the US going to war but NATO, but that's simply not valid as NATO is not a country as defined in the UN Charter.

Of course, now we need to get into what is 'self-defense'; attacks on a state's citizens or an attack on the sovereign soil.

Sincerely,
ElSol

 

[elsol]

I'm actually curious as how they managed to attach Afghanistan to this one.

a) The Taliban harbored Al Queada
b) Al Queada were responsible for the attacks on US soil that killed 3000 people
c) It was reasonable to believe it would not be the only attack.

I'm missing something on the 'self-defense' thing...

Iraq... fucking hardly... but Afghanistan?

Sincerely,
ElSol