Monday, February 12, 2007

Now for something entirely different

C'mon Spotty, tell us another story about Mac Hammond, or maybe about Father Seamus and Marcus and Michele Bachmann. Please?

Well not today, grasshopper. Boys and girls, we have something very serious to talk about.

What could be more serious than if Michele Bachmann gets exorcised?

Spot will admit that is serious, but you'll just have to be patient, grasshopper. Can you do that?

I guess so, Spotty.

Good, because today Spot wants to talk about war crimes. Have any of you heard of First Lieutenant Ehren Watada?

Isn't he the first officer to be court martialed in the Iraq war for refusing to be deployed to Iraq? He was charged with "missing movement" with his unit.

That's exactly right, grasshopper. He refused to go on the grounds that the order to deploy was illegal because the whole war was illegal. Of course, this made the military brass pretty nervous. There is the prospect of a serious breakdown in military discipline if garden-variety soldiers get to make judgments about the legality of a war they are ordered to fight. There is also perhaps some risk for the soldier, as we will see in a moment.

A mistrial was declared in the Lieutenant's court martial last week. It was declared after the proceeding had begun, and over the defense's objection; it probably precludes retrying Lieutenant Watada on double jeopardy grounds. What happened is a fascinating bit of courtroom intrigue. It gets a little technical here, so sit up straight and listen carefully, boys and girls.

The prosecution—and frankly the military judge, too—thought that they had the Lieutenant right where they wanted him. The prosecution and the defense entered into a "fact stipulation" that seemed to admit all of the elements of the infraction of "missing movement." The judge asked the defendant several times if he really, really wanted to admit to all the facts. Watada said "yup" while maintaining the illegality of the order. Now the judge had ruled that the order to deploy to Iraq was legal, and he had ruled that no defense witnesses would be permitted to testify about the legality of the order, i.e., the legality of the war.

Oh Spotty! The Lieutenant cooked his own goose!

No grasshopper; he did not. He and his defense lawyer were very smart. After the prosecution had put in its whole case, Watada's counsel disclosed that the defense would be "reasonable mistake of fact or law" and requested an instruction to the panel (like a jury) to that effect. If you are reasonably mistaken about a fact or the law, boys and girls, it goes to whether you had the requisite state of mind for the commission of the offense.

It began to dawn on the judge that maybe the case was not so airtight after all. He zigged and zagged tried to get the prosecution to reopen its case and to get the defendant to abandon the fact stipulation. No dice. The judge then declared a mistrial, and as Spot mentioned, the defense objected. Since it doesn't look like the defense did anything prejudicial before the panel, it is entitled to claim double jeopardy if the military attempts to try Watada again.

Watada had a good lawyer! That was a great story Spotty!

We're not done yet, grasshopper.

We're not? Darn.

Sorry. Let's consider for a moment the judge's ruling that the order was legal. International law divides consideration of war criminality into two branches: Jus ad Bellum and Jus in Bello:

Under international law, there are two distinct ways of looking at war—the reasons you fight and how you fight. In theory, it is possible to break all the rules while fighting a just war or to be engaged in an unjust war while adhering to the laws of armed conflict. For this reason, the two branches of law are completely independent of one another.

Jus ad Bellum is the branch that deals with the legal cause of the war: was taking up arms justified for some reason, or was it simply aggressive war—the ultimate war crime according to the Nuremberg Court. Jus in Bello deals with the day-to-day stuff: rape, pillage, that sort of thing. Spot thinks what happened here is that people got their Juses all balled up.

Soldiers who are captured on the battlefield are entitled to prisoner of war status and to be released at the conclusion of hostilities, whether they killed or harmed enemy soldiers or not, as long as they did not commit any war crimes. That's provided in the Third Geneva Convention. But what if we imposed on the individual soldier the burden of determining Jus ad Bellum as well as Jus in Bello? It would mean that every soldier who took up arms in the Wehrmacht in WWII was a war criminal. It would also mean that every American flier shot down over North Vietnam might be treated as a war criminal since the North Vietnamese considered the US to be the aggressors.

Spot says this is dangerous territory for the individual soldier to tread. Spot yields to no one in his view about the lack of justification for the war against Iraq. But he says that neither trials of prisoners of war (the low level ones, anyway) nor a court martial of a junior officer is the place to try the legality of the war itself.

Update: It would be possible to allow Jus ad Bellum illegality arguments as a defense to a court martial, but not as a reason to prosecute low level military personnel for Jus ad Bellum crimes. But it seems logically inconsistent to Spot.

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