CITIZENS’ HEARING ON THE
LEGALITY OF US ACTIONS IN IRAQ:
The Case of Lt. Ehren
By David Krieger
January 20, 2007
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
on the grounds that the war is illegal, a “crime against peace” as
defined in the Nuremberg Principles.
Watada has stated, “The war in Iraq
is in fact illegal. It is my obligation and my duty to refuse any
participate in this war. An order to take part in an illegal war is
itself. So my obligation is not to follow the order to go to Iraq."
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
that the issue of the legality of the war may not be raised in the
Lt. Watada. This ruling cuts out
the heart of Lt. Watada’s defense, and denies him the opportunity to
his case before the military court.
addition to challenging the legality of the war, Lt. Watada has
manner in which the war and occupation have been conducted. He has stated, “This
administration used us for rampant violations of time-tested laws
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
ultimately force them to be party to war crimes.”
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
participate in the Iraq War, nor lead the men and women assigned to his
to do what he believes is illegal.
“How,” he has asked, “could I order other men to die
for something I believe is wrong?”
implications of Lt. Watada being correct in his assessment of the war
extremely significant. Such a
finding would mean that all officers and soldiers have an obligation
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
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
rather than upon the legality of the order. By
narrowing the scope of the inquiry,
the military tramples upon international law and the Nuremberg
a second ruling, on
issues of permissible speech, the military judge found that Lt.
criticism of the war was not shielded by his First Amendment right to
speech. This means, in essence, that
though officers in the Armed Forces may be asked to give their lives
country, the truth of their assertions regarding the illegality of US
is not even a matter to be considered in charges of “conduct unbecoming
of an officer.”
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
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
believed strongly that history would judge the United States by how it
applied the Nuremberg standards to its own leaders in the
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
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.
claims about the illegality of the war.
We cannot rectify the denial of Lt. Watada’s rights in the
courts, but we can examine the truth of his claims in a public hearing.
would like to explain what this Hearing is and is not.
I will start with what it is not.
and most obviously, this is not a court of law,
and no one is on trial here.
we are not engaged in a mock trial of any
we make no claim to impartiality, only to
this is not an official hearing or commission
of the United States
government. No government agency
has convened or authorized this Hearing.
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
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.
that Lt. Watada will not receive a full and
fair trial at his court martial, inasmuch as Lt. Watada will not be
raise a Nuremberg-based defense to his contention regarding the
the war and his speech will not be protected by First Amendment rights.
that the war in Iraq may be illegal, and this issue
deserves close scrutiny, expert testimony and the full engagement of
that it is both a right and responsibility of
citizens in a democracy to oversee the actions of their government, and
holds particularly true with regard to government conduct on issues of
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
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:
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?
actions in the hostilities in Iraq
been such as to constitute a pattern of war crimes?
Does the ongoing occupation of Iraq constitute a crime against
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
Hearing will seek to answer these questions based upon the testimony
by eyewitness and expert witnesses.
At the end of the Hearing, the Panel will prepare and release a
Statement containing its findings.
The Final Statement will be sent to every member of the United
Congress. We hope that the findings
will also be widely distributed by the media throughout the country,
cause our fellow citizens to give greater consideration to the
Lt. Watada’s refusal to deploy to Iraq on grounds of illegality
presents to each of us as Americans.
act here at this Citizens’ Hearing in the belief that the testimony and
Final Statement that will be produced will provide important
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
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
and directed this war, far more than a lone Lieutenant, should be held
account for their actions under international law and the United States
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.