Big news Thursday out of Fort Lewis -- or at any rate, big news for those of us who have been following the court-martial of LT Ehren Watada. For those not following at home, LT Watada was court-martialed for his refusal to deploy to Iraq. Watada does not deny deliberately refusing the order, and argues in his defense that the order to deploy was actually an illegal order. Unfortunately, Watada was unable to air that argument in court. The presiding officer in Watada's case, a LTC John Head, more-or-less completely undermined Watada's defense, ruling in a pre-trial motion that questions of the war's legality are nonjusticiable and hence disallowed in Watada's court-martial.
The surprise not-really-an-ending is that the case ended in a mistrial. The ruling ultimately had little to do with the issue at hand directly; the judge ruled that a pre-trial agreement between Watada and the prosecution inadvertently stipulated to Watada's guilt. As such a stipulation was not the intention of either side, LTC Head ruled that the document was invalid. The prosecution then requested a mistrial, which Head granted.
I don't actually have all that much to say about the legal wrangling involved in the mistrial decision. I'm more interested in the backstory. In my academic writing, I've argued for a position much like the one that Watada actually endorsed (if you're interested, you can find it here. A subscription is required, though.) I took up some of those themes at my regular blog haunt.
As I was preparing to give a lecture on this topic last week, I finally realized, though, what troubled me so much about LTC Head's ruling. Head drew upon an earlier precedent in banning mention of the war's legality, namely, US v New, which established that the order to deploy is nonjusticiable. The court's reasoning in that case goes something like the following:
- 1. Orders are presumed to be lawful.
2. Only obviously unlawful orders are to be refused.
3. An order is obviously unlawful if and only if a person of ordinary moral sense and understanding would take it to be unlawful.
4. A person of ordinary moral sense and understanding would not take an order to deploy to be unlawful.
5. Thus, the order to deploy is not obviously unlawful.
6. Therefore, the order to deploy ought not be refused.
I think that there is a pretty serious problem with (3). I don't at all dispute that an order is obviously unlawful if a person of ordinary moral sense and understanding would take it to be unlawful. What I do dispute is that an order is obviously unlawful only if a person of ordinary moral sense and understanding would take it to be unlawful. Suppose, just to pick a totally random example, that a national guardsman was ordered to fire his weapon at a group of anti-war protesters on a college campus in, say, I don't know, Northeast Ohio. Now it seems to me that such an order is pretty obviously unlawful. And I think that, these days, no Guardsman would ever actually obey such an order. Yet a judge dismissed charges against 8 soldiers who did just that.
In short, it's pretty hard for me to see why it is that the lawfulness of my actions should turn on whether or not most people see that the act is illegal. If I happen to be a person of extraordinary moral sense and understanding and as a result, I understand that an action is immoral, why shouldn't I be obligated to refrain from doing that act?
The US v New standard that LTC Head applied to LT Watada thus seems deeply problematic. It seems even more problematic given that there is a reasonable chance that the order to deploy to Iraq really is illegal.