We're the Military and Airpower Guys of Jonah Goldberg of National Review Online + a stray we found wandering around looking lost. All original material JHD, BHD, JR, WT, and KA 2003-2010 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html Sat, 24 Mar 2012 15:52:22 Z Movable Type 4.12 en Copyright 2012 http://www.rssboard.org/rss-specification Every officer of the Armed Forces, at some time or another, signs a document affirming these words, then, in a formal ceremony somewhere, states them publicly (often times less the "having been appointed" bit, especially at multi-service commissioning cermonies): "I, [Johnny Shavetail], having been appointed an officer in [one of the Armed Services] of the United States, as indicated above in the grade of Second Lieutenant, do solemnly swear (or affirm) that I will support and defend the Constitution of The United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;... http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html Wed, 07 Jun 2006 06:42:17 -0600 This one gnaws at me for one simple reason. Free men choose to defend their country. Serfs are compelled to by theirs. I don't know if this is a leftist conspiracy as some suggest, or whether this is a grand scheme by the anti-war scumbags, but I for one don't want this guy in charge of our soldiers, not in Iraq, not anywhere. An officer has a moral duty to refuse orders he believes are illegal. Whether you agree with him or not, it looks like he is doing exactly that. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46253 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46253 Fri, 09 Jun 2006 01:33:59 -0600 When I was in law school at UT (and thus had lots of free time (it's not as hard as the movies make it seem) and free access to Lexis/Nexis), I did quite a bit of research into the "illegal order defense." I'm no military lawyer (I am a West Point grad and was an Armor officer), but the case law I found in 1995 (there were just a handful of cases, and no statutory language) indicated that the "illegal order defense" is wafer thin. From memory, it was only applicable if all the following applied: (i) order was issued in a war zone, (ii) order was manifestly violative of the laws of war, and (iii) execution or defiance of the order was under exigent circumstances. (Of course, I defer to any JAGs reading this....) To a clear thinker, this makes common sense--and clearly none apply to 1LT Watada. The "illegal order defense" is almost like a military/legal urban legend--I believe perpetuated by misremembered training and extrapolations from mere oaths. The sad part is that the Army rarely likes a legal fight, even if letting him off easy will hurt morale. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46240 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46240 Thu, 08 Jun 2006 18:48:55 -0600 John is right, the panel sets the punishment. As I recal the Judge can reduce, but not increase the punishment. It then goes to the General Court-martial convening authority who can also reduce, but not increase. Dismissal (oficers) Dishonorable Discharge (enlisted), life and death sentences all require an apeal proccess whether the individual wants it or not. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46209 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46209 Thu, 08 Jun 2006 09:26:02 -0600 Patrick - while you may well be right, I will be surprised if they push it to that level, when Missing Movement, Failure to Obey, and Conduct Unbecoming will be simple and relatively uncontentious charges. I don't think the leadership is going to feel compelled to bring up sedition and mutiny, I just don't. And, hot rhetoric elsewhere notwithstand, no one is going to stick a needle in this naif's arm. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46193 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46193 Thu, 08 Jun 2006 07:09:50 -0600 Having sat upon several courts, in each case the panel set the penalty. The judge approved them, but I have no idea if he could have modified them or not. Since I'm not eligible to serve on the panel, I guess I can state my preferences. I like the idea of repayment of any and all commissioning-relatedgov't emoluments received during college, and confinement at Fort Leavenworth for the duration of his enlistment obligation, termination of his commission (the court can only recommend, the stripping of a commission is an administrative process initiated based on the conviction) and a Dishonorable Discharge upon completion of his sentence. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46191 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46191 Thu, 08 Jun 2006 07:04:46 -0600 The more I think about this situation, the more convinced I am that the combination of contacting other people and insisting that the war is illegal without a federal court ruling to that effect makes his actions both sedition and mutiny. Involving others to destroy lawful civil authority makes his actions sedition. Involving others to destroy lawful military authority makes his actions mutiny. It would be instructive to hear from soldiers under his command and others who have contact with him. I would not care to write regarding his character until he is convicted, because I do not want to risk UCMJ punishment for my own self. Discussions of the character of this individual constitute a risk to good order. I do thank a very charitable and loving God for the officers I am privileged to serve with. I feel very sorry for the soldiers who had this individual assigned to command them. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46186 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46186 Thu, 08 Jun 2006 02:17:21 -0600 I think LT Watada's making a public spectacle of this whole thing will definitely work against him at trial if the Army chooses to charge him with violation of Article 133 (Conduct Unbecoming an Officer and a Gentleman). When an officer is court-martialed, the jury is composed entirely of officers. If I were the JAG prosecuter, tapes of his press conferences would be my first exhibits on this charge. I forget my UCMJ classes from OBC-I don't remember what role, if any, the jury in a court-martial has in sentencing. If the jury does have a role, I don't see those officers going easy on LT Watada. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46183 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46183 Wed, 07 Jun 2006 23:00:52 -0600 The above wasn't very clear. What I meant is that I can't respect someone who thinks it's more courageous to make a choice that results in having your feelings hurt than to do a hard thing that honor and integrity requires. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46181 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46181 Wed, 07 Jun 2006 21:38:12 -0600 is courageous. I mean, today some of the highest values espoused in many circles are "acceptance" and "feelings." In that sense, his supposed beliefs about Iraq are setting him up to be rejected, to have his feelings hurt. For some people, there could be nothing worse. Of course, I think that's a very weak kind of "courage," and I cannot respect someone who puts the opinion of his peers and his own emotions ahead of his honor and integrity.]]> http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46180 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46180 Wed, 07 Jun 2006 21:25:54 -0600 supposedly flying in the face of convention and conformity is more courageous than following conventional codes of honor that may indeed put you in a dangerous place such as the frontline of war. Bingo!]]> http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46179 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46179 Wed, 07 Jun 2006 21:18:56 -0600 in ww2, this kind would have been labeled a coward and disdained as such. He wouldn't be given the time of day. Today, it isn't really about "questionable war" that makes this so accepted today. It's because we are all now supposed to have angst. We are supposed to eschew societal values of honor and morality for the "personal" and this personal value and morality does not have to conform with societal values because we are all victims and our personal values, lack of morality or honor, is mitigated by circumstances and personal experiences. The same reasoning that is supposed to make you sympathetic to a child molester who was himself molested or a murderer who was taunted by others and "driven" to murder. This is why people say the man has "courage". supposedly flying in the face of convention and conformity is more courageous than following conventional codes of honor that may indeed put you in a dangerous place such as the frontline of war. I don't find it courageous. As for those who think it takes guts to put yourself in a position to be ridiculed by your friends, family and nation, I think it is nothing. It is a temporary and fleeting. People experience it everyday. by the way, anyone notice that they are playing "platoon" over and over again on the cable networks? http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46177 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46177 Wed, 07 Jun 2006 21:12:29 -0600 Additionally, it limits his defense team's options (but I suspect they're already thinking they're going to try the war, and the El-Tee is just going to be the US equivalent of a suicide bomber, in that he self-immolates to make his point. Aside from what SFC D added - it matters mostly in the sentencing phase, where the impact of his actions are weighed in setting punishment. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46175 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46175 Wed, 07 Jun 2006 20:16:17 -0600 ry, it doesn't matter whether he refused the orders during a CNN press conference or behind closed doors in his commander's office. Going public does not make it a bigger violation. However...if his public statements begin to include exhorting others to follow his lead, it could possibly earn him more charges, along the lines of mutiny. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46173 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46173 Wed, 07 Jun 2006 19:03:15 -0600 Okay guys lets have some fun. Ask our liberal friends if this type of action would be considered brave if our military were ordered to the Sudan and just said no. The Sudan being one of the liberals favorite whining points they would no doubt support the military members, right? http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46172 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46172 Wed, 07 Jun 2006 19:02:47 -0600 Question: if his statement hadn't gone public and he'd only just refused his orders would he be in as much trouble(both legally and with peers on the blogosphere)? Just trying to seperate the politics from the law. Does talking outside 'the office' count as an exacerbation of the action. Statutes people have been citing makes it sound like it is. But what would be the case had he not issued such a statement that went public? http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46170 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46170 Wed, 07 Jun 2006 18:29:17 -0600 I just saw 1LT Watada's video on the news. It reminds me of the "I just joined for the college money" soldiers we've all seen. I have to grudgingly admire his courage to take the stand he has. He joined the Army knowing what the consequences could be. Now it's time for him to face the consequences of violating the law, and violating the trust of the Soldiers who have served honorably under him. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46162 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46162 Wed, 07 Jun 2006 15:31:49 -0600 Although it will probably not be among the charges brought, if he talked to any of his soldiers about this he could be up for a lethal injection. If any of his troops credibly finger him for trying to get them to refuse orders, I see no problem with putting the death penalty on the table. His contact with anti-war groups makes him very susceptible for a sedition charge, assuming that the Court Martial chooses to grant standing to the anti-war groups as "any other person." Since the wording does not exclude persons not subject to the UCMJ, his seeking outside advocacy constitutes willful conspiracy to usurp lawful authority. ART. 94. MUTINY OR SEDITION (a) Any person subject to this chapter who-- (1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny; (2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or disturbance against that authority is guilty of sedition; (3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition. (b) A person who is found guilty of attempted mutiny, mutiny, sedition, or failure to suppress or report a mutiny or sedition shall be punished by death or such other punishment as a court- martial may direct. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46160 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46160 Wed, 07 Jun 2006 14:42:37 -0600 Excellent point about the consequences of military officers deciding what war they will fight and what orders from the civilian leadership they will obey. I don't think it can be emphasized enough. Calls for the military to refuse, as though this is a *good* thing, always make me wonder... if Kerry had won, would the 3/4 of the military that voted for Bush be excused from following Kerry's orders? http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46158 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46158 Wed, 07 Jun 2006 13:55:46 -0600 Interesting that a lieutenant in the UK Air Force tried a similar defense and was convicted. Lt. Kendall Smith (so I'm not surprised an officer has finally tried to do it here). I think that his case is already shakey because he makes the statement: "I refuse to watch families torn apart." The Lt in England originally tried to resign because he did not want to leave his family and my guess would be that this is Lt Watada's original purpose as well. They are saying that he tried to resign twice. so did Kendall Smith. However, Kendall Smith's reasons for resignation did not become "illegal war" until he was refused the first time. I'll wait and see, but I bet LT. Watada was not so principled the first time or two he tried to resign his commission. Having said that, some fellow was over at another military website talking about the same things "illegal war" and the UN, etc. Kendall Smith lost his bid on this subject because the courts martial would not even consider his claim of "illegal war, not sanctioned by the UN". One reason the Prosecutor gave was that England was now operating in Iraq under a UN mandate. So, they didn't even pretend to consider that defense or discuss questions of legality without UN sanction. In reality, that is what these attempts are by the defense attornies. They are trying to get the military courts to state that the war is illegal without certain mandates or cover from the UN. The officers in question may or may not come up with these reasons originally. I have wondered if they, having tried to resign under other reasons, consult an attorney, who suggests such a reason (as members of the ACLU). Understanding, if they can get anyone to support this argument, they will have a legal precedent under which any officer or soldier in the future can refuse orders to deploy for any action. thus opening up, as John points out, the undermining of the military. Finally, I commented over at the other sight that someone once said Patriotism is the last refuge of scoundrels. I would suggest that the last refuge of scoundrels is the law. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46157 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46157 Wed, 07 Jun 2006 13:54:12 -0600 HL - Thanks for the info on the differences regarding Benderman versus this case, I had wondered about that. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46155 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46155 Wed, 07 Jun 2006 12:04:13 -0600 Former Sgt Kevin Benderman got 15 months for the same thing. As an officer, LT Watada's sentence should be more severe. Another note: officer's sentenced to prison time automatically go to Ft Leavenworth, whereas for enlisted it required a sentence of 5 years + 1 day to get there. At this point I can see grounds for charging him with violations of the following articles: Art. 87, Missing Movement Art. 89, Willfully Disobeying a Superior Commissioned Officer Art. 133, Conduct Unbecoming an Officer and a Gentleman Art. 134, Conduct Prejudicial to Good Order and Discipline All have possible sentences of "shall be punished as a court-martial shall direct." Myself, I'd vote for all time remaining on his commissioning contract. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46147 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46147 Wed, 07 Jun 2006 11:21:20 -0600 "I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice." Now, every time I took that oath, my understanding of the above phrase was that if an order was contrary to the UCMJ or other existing regulations, I was bound by the oath to refuse such order. To comment on the young Lt., I believe that if the Commander-n-Chief assigns a duty to the armed forces and congress endorses such duty (as in the current conflicts) all orders given to individuals to perform these duties by their respective military leadership are then legal. Maybe I'm just a simple old retired bomb loader, but that is how I see it. ]]> http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46146 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46146 Wed, 07 Jun 2006 11:21:17 -0600 The max penalty for desertion under fire is death. Not for missing movement. He's not taking a risk like that. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46145 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46145 Wed, 07 Jun 2006 11:19:55 -0600 So, he has tried to resign his commission, hmmm. He has publicly stated his intention to disobey a lawful order. during an armed conflict. He will be on trial for his life. Max. sentence for disobeying orders in wartime: death. Will he have the courage to stand tall before the court, or will he be a weasel playing for the anti-war press? http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46144 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46144 Wed, 07 Jun 2006 11:16:19 -0600 If he did that - and admits to it - he completely dishonors himself. The oath clearly accounts for that. "...That I take this obligation freely, without mental reservation or purpose of evasion." If he were foolish enough to admit to that in a legally-admissible forum, that would be enough for me to vote to convict, without any further evidence. You don't get to assert an illegal order defense when you enlisted under false pretenses. As far as I'm concerned, you would at that point have lost your standing to make the assertion. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46142 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46142 Wed, 07 Jun 2006 10:32:49 -0600 Interesting dilemna. He became the military's beck-and-call-boy the minute he signed on the dotted line. I'm also guessing he's an ROTC grad, who never really thought he'd have to go to war. There are lots of soldiers who do things they don't want to. Hell, *I* do lots of things I don't want to, and I'm not in the military. It's a part of the job, boy. Suck it up, son. You're showing your ass to the world. Is it brave? I think not. I find it cowardly. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46141 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46141 Wed, 07 Jun 2006 10:17:00 -0600 Some fool is always trying to find new ways to ice skate up hill. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46140 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46140 Wed, 07 Jun 2006 10:12:22 -0600 When I heard this item on the radio last night, several callers pondered whether this was his goal in signing up - to reach a point where he could refuse and make a big deal. I don't buy that personally - too much effort, it would seem to me. But given the amount of support that Kevin Benderman still receives, as he sits in the Ft. Lewis stockade (even writing letters to his adoring public) - I can just imagine the anti-war crowd salivating at this junction. http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46139 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46139 Wed, 07 Jun 2006 10:04:55 -0600 greyhawk hit most of the points i wanted to score.... i'll grant the kid the courage of his convictions, evidently all learned at his father's knee. but if such was his upbringing, what-in-tarnation was he doing signing up in the first place?? "aide-de-Karpinski".... heh! http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46134 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46134 Wed, 07 Jun 2006 07:55:22 -0600 is a college tuition program, versus the more correct "has" a tuition program, and that bit of confusion has been dealt with in court before. But given the timing, if he joined with no obligation at all, one wonders if his motivation wasn't this very act in the first place. He'll find military courts less inclined to review the issues he holds so dear, and more focused on his actions, to what seems an obvious conclusion. But that bit of prison time will certainly solidify his antihero credibility.]]> http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46131 http://www.thedonovan.com/archives/2006/06/unlawful_orders_the_proving_of.html#comment-46131 Wed, 07 Jun 2006 07:29:18 -0600