Is the War Lawful?

There is a thought-provoking interview up on Yahoo! with a U.S. Army Officer who is refusing an order to deploy to Iraq based upon his belief that the war is unjust. He has obviously given his decision a lot of thought, as evidenced by his responses to some tough questioning by the interviewer. After reading his words, I firmly believe that this gentleman is following his conscience, rather than seeking to escape the dangers of war. I do sympathize with his situation, even though I might not agree with it. However, my gut feeling is that his conscience will send him to prison.

The first issue is whether or not he will be found guilty of the charges leveled against him by the military. Of this, I have no doubt that he will be found guilty. If he is exonerated, then he will be providing others with a roadmap for skirting their military obligations. Sad to say, there may be some unscrupulous people who could use the same defense for the sole purpose of avoiding the dangers of combat. If people could pick and choose whether or not they enter a combat zone, we could end up with a situation where large groups of people end up refusing to go to war at a time when the need is greatest. This is a situation that the military will not allow.

You could say that the military already has a loophole like this through the "conscientious objector" status. However, in the era of the volunteer military, anyone who would qualify for this classification probably isn't going to be enlisting in the first place!

The second issue is whether or not someone has the right to refuse an order based upon its perceived lawfulness. The obvious answer to this question is "yes". If the order is unlawful, then the order can and should be refused. This principle was in full display during the Nuremberg Trials, where the "I was following order" defense was no defense. This is an established doctrine in US military law, so if the officer in question's order to deploy is not considered lawful, then he has every right to refuse it.

Therefore, the third issue is whether or not an order to deploy to Iraq during the current conflict is lawful or not. Reading the officer's statements in the interview, it seems to me like he is confusing "unlawful" with "I do not agree". The two are not necessarily in agreement much of the time. While I certainly do not agree with the justification for the war in Iraq, I am willing to acknowledge that it is a lawful war, according to the letter of the law. The Constitution grants the President, as Commander-In-Chief, authority over the armed forces. As a check to this power, the Constitution also grants Congress the power to "declare war". Although the Congressional authorization for the use of force may not be a true "Declaration of War" by historical standards (i.e. it does not use the phrase "Declaration of War" in the language of the legislation), a majority of Congress did authorize the current conflict, so this Constitution check on the President's power was maintained. In addition, Congress has authorized budget expenditures to carry out the war, so it has maintained its approval. Given the fact that the President and Congress followed the Constitutional formula for initiating a war, it would seem as if the war in Iraq is "lawful" by U.S. legal standards.

One argument that is brought up is the fact that the justification for the war was based upon a "lie". It has certainly come to pass that there isn't WMD present in Iraq. However, if Congress believes that there was deception on the part of the President, they are free to end the conflict and hold the President accountable (i.e. impeach and convict him). That is how the Constitution works. The President is accountable to the people through Congress and through the Electoral College. To date, neither group has done so. Until that time, we can only go by the assumption that the war is not illegal. If that is the case, I am afraid that the young officer in question should be prepared to sacrifice his freedom for his beliefs.

As a personal note, I have the utmost respect for Lt Watada. He is willing to stand up and be held accountable for what he believes in. He isn't one of these cowards who goes into hiding or runs to Canada when the going gets tough. He is willing to fight for what he believes in and accept the consequences for his actions, however wrong those consequences may be. I hope that he becomes the catalyst for the movement to declare the war unlawful through lawful means.