The Case of Lt. Ehren Watada
By David Krieger
Panel Chair
January 20, 2007
This Citizens’ Hearing was convened to examine the legality of US actions in Iraq.  We were prompted and inspired in this effort by the actions of Lt. Ehren Watada, who refused orders to deploy to Iraq on the grounds that the war is illegal, a “crime against peace” as defined in the Nuremberg Principles.  
Lt. Watada has stated, “The war in Iraq is in fact illegal. It is my obligation and my duty to refuse any orders to participate in this war. An order to take part in an illegal war is unlawful in itself. So my obligation is not to follow the order to go to Iraq."  
We believe that Lt. Watada’s contentions about the illegality of the war deserve a full and fair hearing.  Unfortunately, this has been made impossible at his court martial, since the military judge has already ruled that the issue of the legality of the war may not be raised in the defense of Lt. Watada.  This ruling cuts out the heart of Lt. Watada’s defense, and denies him the opportunity to make his case before the military court. 
            In addition to challenging the legality of the war, Lt. Watada has challenged the manner in which the war and occupation have been conducted.  He has stated, “This administration used us for rampant violations of time-tested laws banning torture and degradation of prisoners of war.  Though the American soldier wants to do right, the illegitimacy of the occupation itself, the policies of this administration and the rules of engagement of desperate field commanders will ultimately force them to be party to war crimes.”
            It is Lt. Watada’s deeply held conviction that as an officer in the United States  Army, who has sworn to uphold the Constitution of the United States, he cannot follow orders to participate in the Iraq War, nor lead the men and women assigned to his command to do what he believes is illegal.  “How,” he has asked, “could I order other men to die for something I believe is wrong?”
            The implications of Lt. Watada being correct in his assessment of the war are extremely significant.  Such a finding would mean that all officers and soldiers have an obligation under the Nuremberg Charter and Principles, the United States Constitution and US military regulations to refuse orders to participate in this war.  Further, this finding would have repercussions that could implicate individuals at the highest levels of the US government in the same crimes tried at Nuremberg after World War II: crimes against the peace; war crimes and crimes against humanity. 
           The fourth of the Nuremberg Principles says that superior orders are not a defense to the commission of an illegal act.  This is echoed in US Army Field Manual 27-10.  The military court, however, intends to focus only on whether or not the order was obeyed, rather than upon the legality of the order.  By narrowing the scope of the inquiry, the military tramples upon international law and the Nuremberg Principle of individual accountability.
In a second ruling, on issues of permissible speech, the military judge found that Lt. Watada’s criticism of the war was not shielded by his First Amendment right to free speech.  This means, in essence, that though officers in the Armed Forces may be asked to give their lives for their country, the truth of their assertions regarding the illegality of US actions is not even a matter to be considered in charges of “conduct unbecoming of an officer.”
            The combination of the military judge’s rulings in the Watada case makes it virtually impossible for Lt Watada to obtain legal relief in a military court.  These rulings also make a mockery of the Nuremberg Charter and the Nuremberg Principles established by the United Nations International Law Commission following the Nuremberg Tribunals.  The military judge’s ruling would certainly be repugnant to US Supreme Court Justice Robert Jackson, who was the chief prosecutor for the United States at the Nuremberg Tribunal.  Jackson believed strongly that history would judge the United States by how it applied the Nuremberg standards to its own leaders in the future.
“We must never forget,” Jackson said, “that the record on which we judge these defendants today is the record on which history will judge us tomorrow.  To pass these defendants a poisoned chalice is to put it to our own lips as well.”
            What makes this Citizens’ Hearing critically important is that it provides a forum for testimony relevant to Lt. Watada’s refusal to deploy and his statements on the illegality of the Iraq War.  It is our intention, as citizens of a democracy, to give a full and fair hearing to Lt. Watada’s claims about the illegality of the war.  We cannot rectify the denial of Lt. Watada’s rights in the military courts, but we can examine the truth of his claims in a public hearing.
            I would like to explain what this Hearing is and is not.  I will start with what it is not. 
First, and most obviously, this is not a court of law, and no one is on trial here. 
Second, we are not engaged in a mock trial of any person. 
Third, we make no claim to impartiality, only to truth.
Fourth, this is not an official hearing or commission of the United States government.  No government agency has convened or authorized this Hearing. 
            The authority for this Hearing stems from the power vested in citizens in a democracy to become informed, speak out and play a role in the process of determining national policy.  This is a Citizens’ Hearing; one organized and composed of citizens – those in whom the foundational power of the state vests in a democracy.  The impetus for the Citizens’ Hearing evolved from three principal concerns. 
First, that Lt. Watada will not receive a full and fair trial at his court martial, inasmuch as Lt. Watada will not be able to raise a Nuremberg-based defense to his contention regarding the illegality of the war and his speech will not be protected by First Amendment rights.
Second, that the war in Iraq may be illegal, and this issue deserves close scrutiny, expert testimony and the full engagement of the public. 
Third, that it is both a right and responsibility of citizens in a democracy to oversee the actions of their government, and this holds particularly true with regard to government conduct on issues of war and peace.
            This Citizens’ Hearing will be conducted in the manner of a hearing held before a committee of the Congress.  It will be a hearing that seeks to elicit evidence, reach conclusions, and make these conclusions known to a broader public.  Over the next two days the Panel of this Citizens’ Hearing will receive testimony related to the legality of US actions in Iraq.  Specifically, this Hearing will focus on the following questions:
1. Is the war in Iraq an illegal war of aggression, causing the invasion of Iraq by the United States and the “coalition of the willing” to constitute a crime against peace?
2. Have US actions in the hostilities in Iraq been such as to constitute a pattern of war crimes?
3. Does the ongoing occupation of Iraq constitute a crime against humanity?
4. Does a member of the United States Armed Forces have a duty under the Nuremberg Principles, the US Constitution and US military regulations to refuse to follow an order to participate in an illegal war?
            This Hearing will seek to answer these questions based upon the testimony provided by eyewitness and expert witnesses.  At the end of the Hearing, the Panel will prepare and release a Final Statement containing its findings.  The Final Statement will be sent to every member of the United States Congress.  We hope that the findings will also be widely distributed by the media throughout the country, and will cause our fellow citizens to give greater consideration to the challenge that Lt. Watada’s refusal to deploy to Iraq on grounds of illegality presents to each of us as Americans. 
            We act here at this Citizens’ Hearing in the belief that the testimony and Final Statement that will be produced will provide important information and conclusions relevant not only to the court martial of Lt. Watada, but additionally to all members of the Armed Forces and to every American citizen.  If the war and occupation are found to be illegal and in violation of the United States Constitution, then each of us as a citizen bears some portion of responsibility.  If this is, in fact, the finding and citizens choose to accept this responsibility, then the leaders who initiated and directed this war, far more than a lone Lieutenant, should be held to account for their actions under international law and the United States Constitution. 
            I declare this Citizens’ Hearing open.  We on the Panel pledge to seek the truth and to act with justice. 
            David Krieger is President of the Nuclear Age Peace Foundation.  He was a member of the Jury of Conscience of the World Tribunal on Iraq held in Istanbul in July 2005.