Paul Rockwell: The Lt. Watada Case ... A Day of Reckoning for US Courts
[Paul Rockwell is a columnist for In Motion Magazine http://www.inmotionmagazine.com.]
For Vietnam War veterans, the pending court-martial of Lt. Ehren Watada is déjà vu "all over again." Watada may be the first commissioned officer to refuse deployment to Iraq, but he is hardly the first American soldier to face trumped-up charges for denouncing U.S. aggression abroad.
It has been over 40 years since Army Pfc. James Johnson, Pvt. David Samas, and Pvt. Dennis Mora, plus dozens of other war-resisters, were court-martialed for challenging the gross illegalities of U.S. devastation in Vietnam. Few Americans remember the dark days of wartime jurisprudence, when the U.S. Supreme Court refused to hear a single challenge to the Vietnam War, and when judges deliberately and consistently ignored international law.
It is in the context of judicial abdication during the Vietnam War that the full implications of the Watada trial can be understood. Until the rulings of the '60s are overturned, there will be no justice for Lt. Watada, or for his comrades engulfed in atrocity-producing situations in Iraq.
In the mid-'60s and early '70s, American soldiers were sent to jail for refusing to commit war crimes. Dr. Howard Levy, a Green Beret dermatologist, spent two years in prison for refusing to violate his Hippocratic Oath when the Green Berets used medicine as a political tactic in Vietnam.
Vietnam Rulings Nullify The Law
In 1965 David Henry Mitchell II was convicted of willful failure to report for induction into the U.S. armed forces. In his appeal, Mitchell challenged the legality of Lyndon Johnson's war. He raised basic constitutional issues: the absence of a formal declaration of war from Congress, broken treaties, and a pattern of war crimes on the battlefield. No soldier, Mitchell argued, should ever be forced to participate in criminal policies.
Chief Judge William H. Timbers simply refused to hear the evidence. With a wave of the hand, he ruled summarily that Mitchell's claims "are wholly without merit. ...The President, as Commander-in-Chief, has always exercised the power to begin hostilities." When Mitchell's attorneys argued that, under Nuremberg, soldiers have a duty to disassociate themselves from war crimes of their government, the judge freaked out. It is, he said, "a sickening spectacle [for] a 22-year-old citizen...to assert such tommyrot." The judge argued that treaties and Geneva Conventions are "utterly irrelevant as a defense on the charge of willful refusal to report for induction." The message was clear, and a precedent was set: Even if a war is manifestly illegal, soldiers are still expected to participate. United States v. Mitchell was the first in a series of infamous cases through which American judges placed Presidential war beyond the arm of the law.
In 1966, Army Private Robert Luftig, claiming that it is unconstitutional to force Americans to participate in undeclared war, tried to block orders to ship him to the battlefield. He sued Secretary of Defense Robert McNamara.
In a facile ruling, Federal Judge Alexander Holtzoff invoked the "political question." In jurisprudence "the political question doctrine" is a way by which pro-war judges foreclose any substantive discussion of the legalities of a war. The war, Holtzoff stated, "is obviously a political question that is outside the judicial function." With "no discussion or citation to authority," the Federal Appeals Court concurred.
By 1966, the anti-war movement in the military was gaining momentum. More and more soldiers demanded the protection of the Constitution and international laws. Large rallies were held in defense of soldiers who stood up to the deceitful practices of Johnson and Robert McNamara.
The case of the Fort Hood Three became the most celebrated trial of the period. James Johnson, David Samas, and Dennis Mora -- members of the 2nd Armored division at Fort Hood -- refused orders to go to Vietnam. They never really got a chance to defend themselves in court. Federal District Judge Edward Curran refused to hear evidence of war crimes. He threw the case out. He, too, called the war a political issue beyond judicial cognizance. His ruling reeked of arrogance. He wrote:
"The suit is in reality a suit against the United States, and the United States has not consented to be sued. In addition, it is not the function of the judiciary to entertain such litigation which challenges the validity, the wisdom or the propriety of the Commander-in-Chief of the Armed Forces abroad. The issue presented involves a challenge to the conduct of not only diplomatic, but foreign affairs, over which the President is exclusively responsible."....
Read entire article at Counterpunch
For Vietnam War veterans, the pending court-martial of Lt. Ehren Watada is déjà vu "all over again." Watada may be the first commissioned officer to refuse deployment to Iraq, but he is hardly the first American soldier to face trumped-up charges for denouncing U.S. aggression abroad.
It has been over 40 years since Army Pfc. James Johnson, Pvt. David Samas, and Pvt. Dennis Mora, plus dozens of other war-resisters, were court-martialed for challenging the gross illegalities of U.S. devastation in Vietnam. Few Americans remember the dark days of wartime jurisprudence, when the U.S. Supreme Court refused to hear a single challenge to the Vietnam War, and when judges deliberately and consistently ignored international law.
It is in the context of judicial abdication during the Vietnam War that the full implications of the Watada trial can be understood. Until the rulings of the '60s are overturned, there will be no justice for Lt. Watada, or for his comrades engulfed in atrocity-producing situations in Iraq.
In the mid-'60s and early '70s, American soldiers were sent to jail for refusing to commit war crimes. Dr. Howard Levy, a Green Beret dermatologist, spent two years in prison for refusing to violate his Hippocratic Oath when the Green Berets used medicine as a political tactic in Vietnam.
Vietnam Rulings Nullify The Law
In 1965 David Henry Mitchell II was convicted of willful failure to report for induction into the U.S. armed forces. In his appeal, Mitchell challenged the legality of Lyndon Johnson's war. He raised basic constitutional issues: the absence of a formal declaration of war from Congress, broken treaties, and a pattern of war crimes on the battlefield. No soldier, Mitchell argued, should ever be forced to participate in criminal policies.
Chief Judge William H. Timbers simply refused to hear the evidence. With a wave of the hand, he ruled summarily that Mitchell's claims "are wholly without merit. ...The President, as Commander-in-Chief, has always exercised the power to begin hostilities." When Mitchell's attorneys argued that, under Nuremberg, soldiers have a duty to disassociate themselves from war crimes of their government, the judge freaked out. It is, he said, "a sickening spectacle [for] a 22-year-old citizen...to assert such tommyrot." The judge argued that treaties and Geneva Conventions are "utterly irrelevant as a defense on the charge of willful refusal to report for induction." The message was clear, and a precedent was set: Even if a war is manifestly illegal, soldiers are still expected to participate. United States v. Mitchell was the first in a series of infamous cases through which American judges placed Presidential war beyond the arm of the law.
In 1966, Army Private Robert Luftig, claiming that it is unconstitutional to force Americans to participate in undeclared war, tried to block orders to ship him to the battlefield. He sued Secretary of Defense Robert McNamara.
In a facile ruling, Federal Judge Alexander Holtzoff invoked the "political question." In jurisprudence "the political question doctrine" is a way by which pro-war judges foreclose any substantive discussion of the legalities of a war. The war, Holtzoff stated, "is obviously a political question that is outside the judicial function." With "no discussion or citation to authority," the Federal Appeals Court concurred.
By 1966, the anti-war movement in the military was gaining momentum. More and more soldiers demanded the protection of the Constitution and international laws. Large rallies were held in defense of soldiers who stood up to the deceitful practices of Johnson and Robert McNamara.
The case of the Fort Hood Three became the most celebrated trial of the period. James Johnson, David Samas, and Dennis Mora -- members of the 2nd Armored division at Fort Hood -- refused orders to go to Vietnam. They never really got a chance to defend themselves in court. Federal District Judge Edward Curran refused to hear evidence of war crimes. He threw the case out. He, too, called the war a political issue beyond judicial cognizance. His ruling reeked of arrogance. He wrote:
"The suit is in reality a suit against the United States, and the United States has not consented to be sued. In addition, it is not the function of the judiciary to entertain such litigation which challenges the validity, the wisdom or the propriety of the Commander-in-Chief of the Armed Forces abroad. The issue presented involves a challenge to the conduct of not only diplomatic, but foreign affairs, over which the President is exclusively responsible."....