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Originally Posted by ubertuber
host, I'm troubled by your interpretation of the responsibility to not follow illegal orders. This is an established tenant, and as deltona couple points out, applies to the legality of an order, which is subject to court interpretation, not the morality, which is not (and indeed is the product of opinion polls, in that moral scales differ). Your interpretation is a recipe for quick anarchy. More than that, I'm flabbergasted at the idea that this legality of orders argument can be applied to directives issued by the civilian government. The idea that the military itself can declare a war "bullshit, illegal, of choice, etc" is dangerous. Down that path lies a 4 branch government - executive, legislative, judicial, and military. That is not a place any of us wish to end up (MacArthur almost put us there, and as it is we're close enough) - especially since one branch would obviously have its own guns, to go with an incorporated judicial system. How many years would it be until the military found that a war not yet authorized was essential to the national security. In this circumstance would we have entered WWII a month earlier? A year? What about the Cuban Missile Crisis? After all, if the only tool you have is a hammer, you start to look at the whole world as one giant collection of nails. Apply that to a self-directed military and consider the consequences. I think that, for all its flaws, the current system is best. The military must remain absolutely subordinate to the civilian establishment, which we at least have an indirect control over through our votes.
In fact, I think that the idea that the Iraq war is unequivocally illegal is naive. You may argue that the war has been waged in a criminal way (possibly) or that its moral or ethical basis was fundamentally flawed from the beginning (probably), but the idea that existing UN resolutions allowed for the use of force has enough traction that the idea would be tied up in any judicial proceeding for a long, long time. In this case, the legal bar may have been set far below the ethical and moral ones. That doesn't render the bars interchangeable.
P.S. Just because we haven't learned all of the lessons of the Vietnam War does not mean that we are repeating our mistakes in their entirety.
P.P.S. Nice thread willravel.
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ubertuber, I am concerned about your comments because you do not recognize that my opinions about US soldiers appropriate response to illegal orders, are parallel to US legal precedent of at least the last 60 years. US prosecutors convinced a court at Nuremberg to hang men who claimed to be "just following orders", when they committed war crimes, including what US Nuremberg prosecutors Robert Jackson and Benjamin Ferencz defined as most serious of crimes against humanity[ illegal war of aggression.
What you describe as a "recipe for quick anarchy", is the process of soldiers reasoning....on the spot, sometimes....whether what they are ordered to do, conflicts with their sworn oath.....detailed in the second quote box, below.
You leave me with the impression that there is nothing a soldier can do, in real time, to prevent a war crime from happening, or to avoid complicity, if he is ordered to participate in a plot to commit, or in commission of what he should reasonably know to be a war crime or a serious treaty violation.
Your stance seems to leave no option to avoid following orders to commit illegal acts, at the time that the opportunity to avoid or to try to prevent the commission of these acts occurs.
Let's review where soldiers currently serving in Iraq, are at. Allegedly, 80 percent of them back Mr. Bush, politically, and a majority of them believed, as recently as in Feb., 2006, that Saddam's Iraqi government aided the 9/11 hijackers or conspired with them to carry out the "airliners as missles" attacks on US domestic targets. I personally cannot respect soldiers who not only do not question their CIC...because I believe that he is a war criminal, along with other key officials in his administration, but who wholeheartedly offer their political support to him, and.....3-1/2 years into this war crime of an invasion and occupation, would still do anything that their CIC asks of them....even as they have allowed him and his psy-op propaganda machine to "fool" them into believing that the "fight" in Iraq is a bout "pay back" for 9/11, and about "fighting them over there, so we won't have to fight them here".
I see the question of supporting troops possessed of such blind loyalty and unquestioning zeal towards their criminal CIC and his hopelessly warped and disingenuous mission, as akin to "supporting" a battered wife, who keeps re-admitting her abusive husband into their dysfunctional household, only to end up back in an emergency room for more sitiches or in a dentists office to repair the teeth knocked out of her head, yet again, by her violent, abusive, partner. How many rounds of arrest of the abusive partner, release and return to the home, and succeeding episodes of assault on the "victim", would it take before you lost respect, and withdrew support from the "victim"?
I see no excuse, anymore. Where once, any soldier could point to support for war from nearly 90 percent of the American people, as a reason not to look deeper at what they were actually being ordered to do.....participate in the invasion and occupation of a distant, small, weak nation that had not attacked us, after their CIC, promised to obtain the neccessary resolution for the invasion from the UN, but then backed out of that promise, and ordered the invasion, anyway.
I'm not saying that a soldier must mutiny as a condition for my support or respect, but I do require, as a condition, after the information available 3-1/2 years into this situation is considered, and it must be considered, if for no other reason, the fact that some of our military have been to Iraq four times, and because the security situation there still deteriorates, that the "firmness" of the unquestioning political and ideological support for Bush, and the justification for the price some of our soldiers have paid....the risks that they still are taking......shoe some signs of "softening". I don't buy the excuse that the military avoids politicizing "the mission", the evidence is that this has clearly not been true.
The dissatisfaction, seen last spring by 18 former military commanders, aimed at Rumsfeld, must now be aimed where it should have rightly been aimed in the first place....squarely at Mr. Bush. So far, the biggest "mission accomplished" achievement of US soldiers in Iraq, seems to be the unification of Iraqi shi'a with their Iranian brothers. IMO. not worth American troops dying for, and past the time when at least some US soldiers should be reacting to that outcome....in the way that they vote, greet Bush when he uses them as "props" in his staged media events, and in their response to orders for 5th and 6th trips over to Iraq, and.....in their rates of enlistment, and re-enlistment!
Uber....it seems neccessary to repost an excerpt of an article that roachboy and I have both already posted on these threads, since late spet., 2006:
Quote:
http://www.tfproject.org/tfp/showpos...54&postcount=7
.....Most Americans firmly believe there is nothing the United States or its political leadership could possibly do that could equate to the crimes of Hitler's Third Reich. The Nazis are our "gold standard of evil," as author John Dolan once put it.
But the truth is that we can, and we have -- most recently and significantly in Iraq. Perhaps no person on the planet is better equipped to identify and describe our crimes in Iraq than Benjamin Ferenccz, a former chief prosecutor of the Nuremberg Trials who successfully convicted 22 Nazi officers for their work in orchestrating death squads that killed more than one million people in the famous Einsatzgruppen Case. Ferencz, now 87, has gone on to become a founding father of the basis behind international law regarding war crimes, and his essays and legal work drawing from the Nuremberg trials and later the commission that established the International Criminal Court remain a lasting influence in that realm.
Ferencz's biggest contribution to the war crimes field is his assertion that an unprovoked or "aggressive" war is the highest crime against mankind. It was the decision to invade Iraq in 2003 that made possible the horrors of Abu Ghraib, the destruction of Fallouja and Ramadi, the tens of thousands of Iraqi deaths, civilian massacres like Haditha, and on and on. Ferencz believes that a "prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation."
Interviewed from his home in New York, Ferencz laid out a simple summary of the case:
"The United Nations charter has a provision which was agreed to by the United States formulated by the United States in fact, after World War II. Its says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, 'Look, send the weapons inspectors out to Iraq, have them come back and tell us what they've found -- then we'll figure out what we're going to do. The U.S. was impatient, and decided to invade Iraq -- which was all pre-arranged of course. So, the United States went to war, in violation of the charter."
It's that simple. Ferencz called the invasion a "clear breach of law," and dismissed the Bush administration's legal defense that previous U.N. Security Council resolutions dating back to the first Gulf War justified an invasion in 2003. Ferencz notes that the first Bush president believed that the United States didn't have a U.N. mandate to go into Iraq and take out Saddam Hussein; that authorization was simply to eject Hussein from Kuwait. Ferencz asked, "So how do we get authorization more than a decade later to finish the job? The arguments made to defend this are not persuasive."
Writing for the United Kingdom's Guardian, shortly before the 2003 invasion, international law expert Mark Littman echoed Ferencz: "The threatened war against Iraq will be a breach of the United Nations Charter and hence of international law unless it is authorized by a new and unambiguous resolution of the Security Council. The Charter is clear. No such war is permitted unless it is in self-defense or authorized by the Security Council."
Challenges to the legality of this war can also be found at the ground level. First Lt. Ehren Watada, the first U.S. commissioned officer to refuse to serve in Iraq, cites the rules of the U.N. Charter as a principle reason for his dissent.
Ferencz isn't using the invasion of Iraq as a convenient prop to exercise his longstanding American hatred: he has a decades-old paper trail of calls for every suspect of war crimes to be brought to international justice. When the United States captured Saddam Hussein in December 2003, Ferencz wrote that Hussein's offenses included "the supreme international crime of aggression, to a wide variety of crimes against humanity, and a long list of atrocities condemned by both international and national laws."
Ferencz isn't the first to make the suggestion that the United States has committed state-sponsored war crimes against another nation -- not only have leading war critics made this argument, but so had legal experts in the British government before the 2003 invasion. In a short essay in 2005, Ferencz lays out the inner deliberations of British and American officials as the preparations for the war were made:
U.K. military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court (ICC) in The Hague had entered into force on July 1, 2002, with full support of the British government. Gen. Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in The Hague."
Ferencz quotes the British deputy legal adviser to the Foreign Ministry who, in the lead-up to the invasion, quit abruptly and wrote in her resignation letter: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution … [A]n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."
While the United Kingdom is a signatory of the ICC, and therefore under jurisdiction of that court, the United States is not, thanks to a Republican majority in Congress that has "attacks on America's sovereignty" and "manipulation by the United Nations" in its pantheon of knee-jerk neuroses. Ferencz concedes that even though Britain and its leadership could be prosecuted, the international legal climate isn't at a place where justice is blind enough to try it -- or as Ferencz put it, humanity isn't yet "civilized enough to prevent this type of illegal behavior." And Ferencz said that while he believes the United States is guilty of war crimes, "the international community is not sufficiently organized to prosecute such a case. … There is no court at the moment that is competent to try that crime."
As Ferencz said, the world is still a long way away from establishing norms that put all nations under the rule of law, but the battle to do so is a worthy one: "There's no such thing as a war without atrocities, but war-making is the biggest atrocity of all."
The suggestion that the Bush administration's conduct in the "war on terror" amounts to a string of war crimes and human rights abuses is gaining credence in even the most ossified establishment circles of Washington. Justice Anthony Kennedy's opinion in the recent Hamdan v. Rumsfeld ruling by the Supreme Court suggests that Bush's attempt to ignore the Geneva Conventions in his approved treatment of terror suspects may leave him open to prosecution for war crimes. As Sidney Blumenthal points out, the court rejected Bush's attempt to ignore Common Article 3, which bans "cruel treatment and torture [and] outrages upon personal dignity, in particular humiliating and degrading treatment."
And since Congress enacted the Geneva Conventions, making them the law of the United States, any violations that Bush or any other American commits "are considered 'war crimes' punishable as federal offenses," as Justice Kennedy wrote.
George W. Bush in the dock facing a charge of war crimes? That's well beyond the scope of possibility … or is it?
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Quote:
http://www.counterpunch.org/mosqueda02272003.html
February 27, 2003
A Duty to Disobey All Unlawful Orders
An Advisory to US Troops
by LAWRENCE MOSQUEDA
DOMESTIC AND INTERNATIONAL LAW
As the United States government under George Bush gets closer to attacking the people of Iraq, there are several things that the men and women of the U.S. armed forces need to know and bear in mind as they are given orders from the Bush administration. This information is provided for the use of the members of the armed forces, their families, friends and supporters, and all who are concerned about the current direction of U.S. policy toward Iraq.
The military oath taken at the time of induction reads:
"I,____________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to the regulations and the Uniform Code of Military Justice. So help me God"
The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.
During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking his oath when he blindly followed the commands of Ronald Reagan. As Inouye stated, "The uniform code makes it abundantly clear that it must be the Lawful orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we-we, the government of the United States, proposed that it be internationally applied in the Nuremberg trials." (Bill Moyers, "The Secret Government", Seven Locks Press; also in the PBS 1987 documentary, "The Secret Government: The Constitution in Crisis")
Senator Inouye was referring to the Nuremberg trials in the post WW II era, when the U.S. tried Nazi war criminals and did not allow them to use the reason or excuse that they were only "following orders" as a defense for their war crimes which resulted in the deaths of millions of innocent men, women, and children. "In 1953, the Department of Defense adopted the principles of the Nuremberg Code as official policy" of the United States. (Hasting Center Report, March-April 1991)
Over the past year there have been literally thousands of articles written about the impact of the coming war with Iraq. Many are based on politics and the wisdom of engaging in an international war against a country that has not attacked the U.S. and the legality of engaging in what Bush and Rumsfield call "preemptive war." World opinion at the highest levels, and among the general population, is that a U.S. first strike on Iraq would be wrong, both politically and morally. There is also considerable evidence that Bush's plans are fundamentally illegal, from both an international and domestic perspective. If the war is indeed illegal, members of the armed forces have a legal and moral obligation to resist illegal orders, according to their oath of induction.
The evidence from an international perspective is overwhelming. The United States Constitution makes treaties that are signed by the government equivalent to the "law of the land" itself, Article VI, para. 2. Among the international laws and treaties that a U.S. pre-emptive attack on Iraq may violate are: · The Hague Convention on Land Warfare of 1899, which was reaffirmed by the U.S. at the 1946 Nuremberg International Military Tribunals; · Resolution on the Non-Use of Nuclear Weapons and Prevention of Nuclear War, adopted UN General Assembly, Dec 12, 1980; · Convention on the Prevention and Punishment of the Crime of Genocide; December 9, 1948, Adopted by Resolution 260 (III) A of the UN General Assembly; · Geneva Convention relative to the Protection of Civilian Persons in Time of War, Adopted on August 12, 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War; · Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques, 1108 U.N.T.S. 151, Oct. 5, 1978; · The Charter of the United Nations; · The Nuremberg Principles, which define as a crime against peace, "planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements, or assurances, or participation in a common plan or conspiracy for accomplishment of any of the forgoing." (For many of these treaties and others, see the Yale Avalon project at www.yale.edu/lawweb/avalon/imt/imt.htm. Also see a letter to Canadian soldiers sent by Hamilton Action for Social Change at http://www.hwcn.org/link/hasc/letter_cf.html)
As Hamilton Action for Social Change has noted "Under the Nuremberg Principles, you have an obligation NOT to follow the orders of leaders who are preparing crimes against peace and crimes against humanity. We are all bound by what U.S. Chief Prosecutor Robert K. Jackson declared in 1948: [T]he very essence of the [Nuremberg] Charter is that individuals have intentional duties which transcend the national obligations of obedience imposed by the individual state." At the Tokyo War Crimes trial, it was further declared "[A]nyone with knowledge of illegal activity and an opportunity to do something about it is a potential criminal under international law unless the person takes affirmative measures to prevent commission of the crimes."
The outcry about the coming war with Iraq is also overwhelming from legal experts who have studied this in great detail.
By November of 2002, <a href="http://web.archive.org/web/20030201114036/http://www.the-rule-of-law.com/IraqStatement/">315 law professors had signed a statement entitled "A US War Against Iraq Will Violate US and International Law and Set a Dangerous Precedent for Violence That Will Endanger the American People."</a>
Other legal organizations such as the Lawyers' Committee on Nuclear Policy and the Western States Legal Foundation have written more extensive reports, such as that by Andrew Lichterman and John Burroughs on "War is Not the Path to Peace; The United States, Iraq, and the Need for Stronger International Legal Standards to Prevent War." As the report indicates "Aggressive war is one of the most serious transgressions of international law." In fact, at the Nuremberg trials, the issue was not just individual or collective acts of atrocities or brutal actions but the starting of an aggressive war itself. U.S. Supreme Court Justice Robert L. Jackson stated,
"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy." (August 12, 1945, <a href="http://www.lcnp.org/global/IraqLetter.htm">Department of State Bulletin.</a> )
In another report written by the same authors and also by Michael Ratner, President of the Center for Constitutional Rights, New York, and Jules Lobel, Professor of Law at the University of Pittsburgh entitled "The United Nations Charter and the Use of Force Against Iraq," the authors note that:
"Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or imminent armed attack: and when the Security Council has directed or authorized use of force to maintain or restore international peace and security. Neither of those circumstances now exists. Absent one of them, U.S. use of force against Iraq is unlawful."
The authors were specifically referring to Article 51 of the UN Charter on the right to self-defense. Nothing that Iraq has done would call that provision into effect. The report also states that:
"There is no basis in international law for dramatically expanding the concept of self-defense, as advocated in the Bush Administration's September, 2002 "National Security Strategy" to authorize "preemptive"--really preventive--strikes against states based on potential threats arising from possession or development of chemical, biological, or nuclear weapons and links to terrorism. Such an expansion would destabilize the present system of UN Charter restraints on the use of force. Further, there is no claim or publicly disclosed evidence that Iraq is supplying weapons of mass destruction to terrorist.
The Bush administration's reliance on the need for "regime change" in Iraq as a basis for use of force is barred by Article 2(4) of the UN Charter, which prohibits "the threat or use of force against the territorial integrity or political independence of any state." Thus the rationales being given to the world, the American public, and the armed forces are illegal on their face. (For a copy of this report see www.lcnp.org/global/iraqstatement3.htm)
It is important to note that none of the authors cited thus far or to be cited have any support for Saddam Hussein or the Government of Iraq whatsoever. They and others who do not support an illegal war in Iraq believe that government of Saddam Hussein is corrupt, vile, and contemptible. So is the leadership and governments of many of our "allies," such as Saudi Arabia and Pakistan-governments that the United States may very well attack within the next decade. It is important to remember that Saddam Hussein was an important "ally" during the 1980s and that many of the weapons that may be faced by our armed forces will bear a "Made in the USA" label. The issue here is not the "evil' of Saddam Hussein, nor the international community doing nothing, but an illegal march to war by the Bush administration.
Even former House Majority Leader Dick Armey, a very conservative Republican from Texas, has warned that an "unprovoked attack against Iraq would violate international law and undermine world support for President Bush's goal of ousting Saddam Hussein." Armey explicitly states "If we try to act against Saddam Hussein, as obnoxious as he is, without proper provocation, we will not have the support of other nation states who might do so. I don't believe that America will justifiably make an unprovoked attack on another nation. It would not be consistent with what we have been as a nation or what we should be as a nation." (<a href="http://commondreams.org/headlines02/0809-08.htm">Chicago Tribune, August 9, 2002</a>, available at
Other articles demonstrating the illegality of this war can be found <a href="http://deoxy.org/wc/wc-ilaw.htm%20and%20at%20www.lcnp.org/global/SCIraqletter.htm."> here.</a>
In addition to the violations of international laws, which have been incorporated into U.S. law, the impending attack on Iraq is a direct violation of national law as Bush claims that he has the authority to decide whether the U.S. will go to war or not. The U.S. Constitution is very explicit on this point. Only the Congress has the authority to declare war, Article 1, section 8, Par. 11. Congress does not have the right to give that power away, or to delegate that power to the president or anyone else. The President as the "Commander in Chief" (Article 2, section 2, Par. 1) can command the armed forces in times of peace and war, but he does not have the authority to declare the war or determine if that war is to occur, especially if he is engaged in illegal conduct in violation of the Constitution itself or his oath of office. The Constitution spells out very clearly the responsibility of the President and his oath, "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States." (Article 2, section 2, Par. 8). The President also has the primary duty to make sure "that the laws be faithfully executed," (Article 2, section 3).
The vaguely worded resolution passed by the Congress in October was both illegal and an act of cowardice, as noted by Senator Robert Byrd of West Virginia. Byrd's remarks were made on the floor of the Senate on October 3, 2002. In part he said:
"The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines the nature of defense, and reinterprets the Constitution to suit the will of the Executive Branch. It would give the President blanket authority to launch a unilateral preemptive attack on a sovereign nation that is perceived to be a threat to the United States. This is an unprecedented and unfounded interpretation of the President's authority under the Constitution, not to mention the fact that it stands the charter of the United Nations on its head."
The <a href="http://web.archive.org/web/20021011212453/byrd.senate.gov/byrd_newsroom/byrd_news_oct2002/rls_oct2002/rls_oct2002_2.html">full texts</a> of his remarks are well worth reading, not only on the illegality of the war but also the illegality of Congress in abandoning its duty under the Constitution.
MORAL CODES AND LAWS
The United States is a secular country with a great variety of religions, which are adhered to by the majority of the people. Political leaders who claim to speak in the name of God are rightfully looked upon with suspicion, whether they are foreign leaders or the president of the United States. This is especially true when the issues are those of war and peace. Nevertheless, the U.S. often blends the border on issues of Church and State, including in public oaths, such as the oath which is taken at the time of induction. This author will not claim to know the will of God, but it is valuable to examine what the religious leaders of the country are saying about this war. Virtually every major religion in the United States has come out against the Bush plans for war. Again this is not because of any support for Saddam Hussein, but rather the Bush plans do not meet any criteria for the concept of "just war." One would expect this from the religions that are respected and pacifist, but it also true from those who have supported past U.S. wars, and even have Chaplains in the service. Below is a sample of the analysis of U.S. religious leaders: ........
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