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Conscience and Killing in Iraq


A federal judge has issued a stay in the Army’s court martial of Lt. Eric Watada, which had been scheduled to begin tomorrow. The reason: despite Army objections the trial might violate the double-jeopardy clause of the Constitution, which apparently sometimes still applies to the military.

Watada’s case is unique. Unlike other U.S. military personnel, especially officers, Watada refused to blindly follow orders to deploy to Iraq. To do so, he maintained, would constitute the war crime of waging a war of aggression.

Since everyone agrees that Iraq never attacked the United States or even threatened to do so, there is no question but that Watada is right: In the Iraq War, the United States is the aggressor power and Iraq is the defending nation. As Watada maintains, the U.S. government has, in fact, waged a war of aggression against Iraq. The Nuremberg War Crimes Tribunal did, in fact, hold that waging a war of aggression constituted a war crime.

So, as a matter of conscience, morality, and prudence, Watada refused to participate in the invasion and occupation of Iraq. The government, in return, is prosecuting him for refusing to obey the orders of his commander in chief. The Army’s position is that while soldiers have a duty to disobey orders on the battlefield that constitute war crimes (e.g., shooting a prisoner), a soldier cannot question an order to wage a war of aggression. According to the Army, Watada violated his duty by refusing to deploy to Iraq even if by obeying such order, he was exposing himself to a Nuremberg-type war-crime charge of waging a war of aggression.

So, why is a federal judge interfering with the process? Because this is actually the second time that the Army is prosecuting Watada. At the first court-martial, the judge screwed up by granting the prosecutor’s motion for a mistrial. As I pointed out in my February 8, 2007, blog, that order of mistrial might well have meant no more prosecution of Watada because of the constitutional bar against prosecuting a person twice for the same offense. Despite the fact that the military courts have ruled against Watada on the issue (surprise, surprise), a federal civilian judge deems the issue sufficiently important to examine it himself.

Lt. Watada is one of the genuine heroes of our time. It’s truly a shame that so many other U.S. military officers take the position that they had to follow orders rather than their consciences when they agreed to participate in the killing of people who had never attacked the United States or even threatened to do so.

In a somewhat related story, on Sunday the Washington Post detailed the reactions of some of the people in the Bush administration who played important roles in the Iraq adventure. Among them was 38-year-old Meghan O’Sullivan, who served as an adviser to chief U.S. occupation administrator L. Paul Bremer. Although she has returned home, O’Sullivan continues to suffer dreams about Iraq and apparently thinks that the dreams have to do generally with the horrors of being in Iraq, where people she knew were killed. She is now asking herself what level of sacrifices, both Iraqi and American, can justify the deaths, and she mollifies herself with the idea that the possibility of “success” could ultimately justify the killings.

I have a different theory: O’Sullivan’s dreams are her conscience and subconscious telling her what she doesn’t want to acknowledge and what Eric Watada already knows: that she didn’t have the moral right to participate in the killing of even one single Iraqi, much less hundreds of thousands of them — not for democracy, not for stability, not for 9/11 revenge, not for regime change, and not for any other grandiose political reason — and that the killings of Iraqis, in fact, constitute grave sins. My hunch is that like so many others who have participating in these killings, O’Sullivan’s dreams will continue until there is acknowledgment, confession, remorse, and repentance.

While Watada is still facing the prospect of imprisonment, there’s no doubt in my mind that he’s much better off than O’Sullivan.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.