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Watada’s Victory Lets Military Off the Hook

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It seems like the U.S. Military might be let off the hook by a federal judge’s ruling in case of Lt. Ehren Watada. The judge has issued a preliminary injunction enjoining the military from prosecuting Watada, pending whether the military can successfully show that the prosecution of Watada would not violate the double-jeopardy clause of the Fifth Amendment.

Here is what is going on in this case and why it is so important.

At the Nuremberg War Crimes Tribunal, Nazi officials were charged with the war crime of waging a war of aggression. What that meant was that the German government had attacked and waged war against countries that had not attacked Germany.

Watada ultimately came to the realization that the U.S. government was committing the war crime for which Nazi officials had been indicted and convicted at Nuremberg, to wit: attacking a country, Iraq, that had not attacked the United States. Once he realized that, Watada refused to blindly obey orders to participate in the war crime. He refused to deploy to Iraq, both on the legal grounds arising out of the Nuremberg proceedings and the moral ground that it’s wrong to kill people, even as a soldier, in a war of aggression.

Meanwhile, the U.S. government took the same position that the German government took — that soldiers cannot refuse to participate in a war, even if it is an immoral and illegal war of aggression being waged by their ruler. Whether the war is immoral or illegal is not an issue for the soldier, claim U.S. officials. Those are issues to be decided by their commander in chief.

Interestingly, all other U.S. officers and enlisted men bought into the government’s position, sacrificing their conscience and their reasoning ability and obeying orders that required them to kill and maim people thousands of miles away from the United States—people who had never attacked the United States, including on 9/11. “Our job is to do our job,” has been the standard mindset of American officers and enlisted men participating in the killing, mayhem, and violence in Iraq, even though Iraq never attacked the United States. Equally interesting is that many Americans, including Catholic priests and Protestant ministers, have supported the actions of such soldiers knowing full well that they were participating in the type of war that had been punished at Nuremberg as a war crime.

Why didn’t they simply discharge Watada as a conscientious objector? Because the U.S. military’s rule on that issue requires the soldier to object to all wars — not just illegal wars of aggression. Thus, since Watada has no objection to defensive wars — that is, wars where a country has been attacked by another country — he would not fall within the U.S. military’s definition of conscientious objector.

So, the military went after Watada by prosecuting him in a military court martial for refusing to obey the orders of the president. After the trial had begun, the prosecutor claimed that by entering into a particular pretrial procedural stipulation, Watada had effectively admitted his guilt. It was a ludicrous argument and the judge effectively so held. That caused the prosecutor to claim surprise, which was also ludicrous, and ask for a mistrial in order to get more time to prepare his case. The judge granted the mistrial.

As I wrote at the time, by granting the prosecutor’s motion for mistrial, the judge might well have inadvertently precluded any further prosecution of Watada. Why? Because while the defendant can ask and get a mistrial in a criminal suit, the general rule is that the prosecutor cannot. The reason for this is that the Constitution bars prosecuting a person twice for the same crime. By starting the trial, Watada was placed in jeopardy of being convicted, and the granting of the prosecutor’s motion for mistrial doesn’t change that.

When the military nonetheless proceeded with its second prosecution, Watada went to a civilian federal court and asked for an injunction prohibiting the military from proceeding. Obviously, given the military’s disdain for the U.S. judicial system (a disdain perfectly reflected by the military’s establishment of its torture-and-sex abuse camp in Cuba), this “interference” must chaff military officials to no end. The judge granted the injunction pending whether the military can overcome the double-jeopardy argument.

Under the Federal Rules of Civil Procedure, the military can appeal the grant of the injunction, claiming that the federal courts should not interfere with a military prosecution. It’s an argument that could conceivably prevail since Watada could still appeal a conviction through the military-justice system all the way to the U.S. Supreme Court and, therefore, the argument would go, there’s no reason for a federal court to get involved.

Either way, my hunch is that Watada will win on double-jeopardy grounds. As the federal judge who issued the injunction pointed out, no doubt to the chagrin of U.S. military officials, the Constitution still applies to the military in this country.

So, why did I begin by saying that the federal judge’s injunction might have let the military off the hook? Because if Watada is convicted and his double-jeopardy claim rejected, when he appeals to the U.S. Supreme Court, the Court would be faced squarely with the crucial question: Are U.S. soldiers bound to obey orders to commit the war of crime of waging a war of aggression? Are they duty bound to sacrifice conscience and reason when ordered to participate in the killing of people in a war of aggression? The answer might not be one that the president and the military would like. If the Court ruled for Watada, the ruling would obviously constitute one of the biggest transformations of the principles of military service in history.

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.