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The Honolulu Advertiser
Posted on: Tuesday, February 6, 2007

COMMENTARY
Watada wasn't asked to commit unlawful acts

By Col. Thomas D. Farrell (Ret.)

Many soliders who believed the war a bad idea served anyway

Volumes have been written about Lt. Ehren Watada, whose court-martial began yesterday. He's been lionized and demonized, and the rhetoric of his supporters and his detractors has reached the outer limits of hyperbole.

What has heretofore escaped rational discussion are his claims that the war in Iraq is unlawful, that his participation in it would violate the principles of personal accountability established at Nuremberg, and that going to Iraq would effectively turn him into a war criminal. Those issues won't be addressed in his court-martial because the military judge has ruled that the legality of the war is a "political question" beyond the purview of the court. That ruling may be technically correct, but it is certainly unsatisfying.

I don't mind all that much if a lieutenant wants to protest the policies of the commander in chief, inappropriate though it is for a serving officer to do so publicly. What irks me is the implication that those of us who deployed were either too dumb to know the score, or too spineless to do the right thing. More than 2,000 citizen-soldiers from Hawai'i deployed to Iraq in 2004 and 2005. I was one of them. Permit me to make the case that those of us who went to Iraq are not war criminals.

As a matter of domestic law, the U.S. Constitution (the preservation of which is the sole reason for the existence of our armed forces) says that Congress shall have the power to declare war. When it enacted the Iraq Liberation Act of 1998, Congress made regime change in Baghdad the official policy of the United States. It explicitly authorized the use of American military forces with the "Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq" of October 2002. Lt. Watada may be right in his claim that the Bush administration bamboozled the Congress with phony claims of weapons of mass destruction and insinuations of ties between Saddam Hussein and al-Qaida, but Congress has not seen fit to repeal its resolution, or to pass new legislation forcing our withdrawal.

As a matter of international law, it may be argued that U.N. Security Council Resolution 1441 (which authorized "all means necessary") was not a green light to invade Iraq, but it is important that we note what the U.N. has done since then. Acting under Chapter VII of the U.N. Charter, the Security Council passed Resolution 1511 in October 2003, authorizing "a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq." Since then, it has repeatedly reauthorized the American-led Multi-National Force Iraq. In its most recent resolution extending the force until Dec. 31, the Security Council acted at the explicit request of the sovereign government of Iraq.

How can anyone seriously claim that our military involvement in Iraq is illegal when both Congress and the U.N. have taken the steps to authorize it, and allow it to continue to this day?

Lt. Watada argues that he has the right to make his own personal assessment, notwithstanding whatever Congress and the U.N. may do. If he's right, why not make our personal assessments about how fast is safe to drive, or how much tax is our fair share? The answer is obvious: Anarchy would prevail, and the rule of law the basis of all real freedom would cease to exist.

Lt. Watada asserts that he truly believes that the war is illegal; therefore he has an absolute duty to refuse his orders to deploy. He reminds us that the lesson of Nuremberg is that "following orders" is no excuse for unlawful acts in war.

At the Nuremberg Tribunals, the Allies prosecuted the senior political leaders of the Axis powers for launching an unlawful war under existing legal standards. There was no U.N. Charter when the Nuremberg cases were decided, but it was no stretch to find Hitler's henchmen guilty of violating international law by invading Poland, Czechoslovakia, France and the Soviet Union. However, common soldiers and their officers were never prosecuted for merely participating in the war. They were prosecuted for murdering non-combatants, abusing prisoners and other individual acts that any rational human being knows are criminal.

No one asked Lt. Watada to do any of those things. In fact, the rules of engagement in Iraq clearly prohibit these crimes. Those rules aren't just window dressing. In the rare cases where they've stepped over the line, we've prosecuted our own soldiers and Marines. We'll continue to do so.

Many of us who served in Iraq were under no illusions about the administration's corruption of intelligence to make the case for war. Quite a few of us also believed that the war was a bad idea, made worse by poor execution. We served anyway. We deployed not out of ignorance or fear but because we had promised to uphold the Constitution. It never occurred to us to place ourselves above the law.

Retired Col. Thomas D. Farrell, a Honolulu resident, served as an Army intelligence officer in Iraq from June 2005 to May 2006. He wrote this commentary for The Advertiser.