Navy Judge finds "reasonable cause" to believe IRAQ war illegal

 http://www.truthout.org/docs_2005/051305X.shtml
 
 Navy Judge Finds War Protest Reasonable

    By Marjorie Cohn
    t r u t h o u t | Report
    Friday 13 May 2005

"I think that the government has successfully proved that any service
member has reasonable cause to believe that the wars in Yugoslavia,
Afghanistan and Iraq were illegal."

    -- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes'
court-martial

    In a stunning blow to the Bush administration, a Navy judge
gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing
orders to board the amphibious assault ship Bonhomme Richard before it
left San Diego with 3,000 sailors and Marines bound for the Persian Gulf
on December 6th. Lt. Cmdr. Robert Klant found Pablo guilty of missing
his ship's movement by design, but dismissed the charge of unauthorized
absence.

Although Pablo faced one year in the brig, the judge sentenced him to
two months' restriction and three months of hard labor, and reduced his
rank to seaman recruit.

    "This is a huge victory," said Jeremy Warren, Pablo's
lawyer. "A sailor can show up on a Navy base, refuse in good conscience
to board a ship bound for Iraq , and receive no time in jail," Warren
added. Although Pablo is delighted he will not to go jail, he still
regrets that he was convicted of a crime. He told the judge at
sentencing: "I am guilty of believing this war is illegal. I am guilty
of believing war in all forms is immoral and useless, and I am guilty of
believing that as a service member I have a duty to refuse to
participate in this War because it is illegal."

    Pablo maintained that transporting Marines to fight in an
illegal war, and possibly to commit war crimes, would make him complicit
in those crimes. He told the judge, "I believe as a member of the armed
forces, beyond having a duty to my chain of command and my President, I
have a higher duty to my conscience and to the supreme law of the land.
Both of these higher duties dictate that I must not participate in any
way, hands-on or indirect, in the current aggression that has been
unleashed on Iraq ."

    Pablo said he formed his views about the illegality of the
war by reading truthout.org, listening to Democracy Now!, and reading
articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes,
and Marjorie Cohn, as well as Kofi Annan's statements that the war is
illegal under the UN Charter, and material on the Nuremberg and Tokyo
tribunals.

    I testified at Pablo's court-martial as a defense expert on
the legality of the war in Iraq , and the commission of war crimes by US
forces. My testimony corroborated the reasonableness of Pablo's beliefs.
I told the judge that the war violates the United Nations Charter, which
forbids the use of force, unless carried out in self-defense or with the
approval of the Security Council, neither of which obtained before Bush
invaded Iraq . I also said that torture and inhuman treatment, which have
been documented in Iraqi prisons, constitute grave breaches of the
Geneva Conventions, and are considered war crimes under the US War
Crimes Statute. The United States has ratified both the UN Charter and
the Geneva Conventions, making them part of the supreme law of the land
under the Supremacy Clause of the Constitution.

    I noted that the Uniform Code of Military Justice requires
that all military personnel obey lawful orders. Article 92 of the UCMJ
says, "A general order or regulation is lawful unless it is contrary to
the Constitution, the laws of the United States ...." Both the Nuremberg
Principles and the Army Field Manual create a duty to disobey unlawful
orders. Article 509 of Field Manual 27-10, codifying another Nuremberg
Principle, specifies that "following superior orders" is not a defense
to the commission of war crimes, unless the accused "did not know and
could not reasonably have been expected to know that the act ordered was
unlawful."

    I concluded that the Iraq war is illegal. US troops who
participate in the war are put in a position to commit war crimes. By
boarding that ship and delivering Marines to Iraq - to fight in an
illegal war, and possibly to commit war crimes - Pablo would have been
complicit in those crimes. Therefore, orders to board that ship were
illegal, and Pablo had a duty to disobey them.

    On cross-examination, Navy prosecutor Lt. Jonathan Freeman
elicited testimony from me that the US wars in Yugoslavia and
Afghanistan also violated the UN Charter, as neither was conducted in
self-defense or with the blessing of the Security Council. Upon the
conclusion of my testimony, the judge said, "I think that the government
has successfully proved that any service member has reasonable cause to
believe that the wars in Yugoslavia , Afghanistan and Iraq were illegal."

    The Navy prosecutors asked the judge to sentence Pablo to
nine months in the brig, forfeiture of pay and benefits, and a bad
conduct discharge. Lt. Brandon Hale argued that Pablo's conduct was
"egregious," that Pablo could have "slinked away with his privately-held
beliefs quietly." The public nature of Pablo's protest made it more
serious, according to the chief prosecuting officer.

    But Pablo's lawyer urged the judge not to punish Pablo more
harshly for exercising his right of free speech. Pablo refused to board
the ship not, as many others, for selfish reasons, but rather as an act
of conscience, Warren said.

    "Pablo's victory is an incredible boon to the anti-war
movement," according to Warren . Since December 6th, Pablo has had a
strong support network. Camilo Mejia, a former Army infantryman who
spent nine months in the brig at Fort Sill , Oklahoma , for refusing to
return to Iraq after a military leave, was present throughout Pablo's
court-martial. Tim Goodrich, co-founder of Iraq Veterans against the
War, also attended the court-martial. "We have all been to Iraq , and we
support anyone who stands in nonviolent opposition," he said. Fernando
Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq ,
came to defend Pablo.

    The night before his sentencing, many spoke at a program in
support of Pablo. Mejia thanked Pablo for bringing back the humanity and
doubts about the war into people's hearts. Sheehan, whose son, K.C.,
died two weeks after he arrived in Iraq , said, "I was told my son was
killed in the war on terror. He was killed by George Bush's war of
terror on the world."
    Aidan Delgado, who received conscientious objector status
after spending nine months in Iraq , worked in the battalion headquarters
at the Abu Ghraib prison. Confirming the Red Cross's conclusion that 70
to 90 percent of the prisoners were there by mistake, Delgado said that
most were suspected only of petty theft, public drunkenness, forging
documents and impersonating officials. "At Abu Ghraib, we shot prisoners
for protesting their conditions; four were killed," Delgado maintained.
He has photographs of troops "scooping their brains out."
    Pablo's application for conscientious objector status is
pending. He has one year of Navy service left. If his C.O. application
is granted, he could be released. Or he could receive an administrative
discharge. Worst case scenario, he could be sent back to Iraq . But it is
unlikely the Navy will choose to go through this again.
    Marjorie Cohn, a contributing editor to t r u t h o u t, is
a professor at Thomas Jefferson School of Law, executive vice president
of the National Lawyers Guild, and the US representative to the
executive committee of the American Association of Jurists.