From the June 2005 Idaho Observer:
Navy judge paves way for honest conscientious objectors
Government proves recent U.S. wars "illegal in Paredes decision
The draft is coming. I think we all can feel it: The Bush administration has the U.S. committed in a direction that will require a lot of American bodies to put on uniforms. For the first time in U.S. military history, a military judge has ruled in a manner indicating that soldiers, seamen and aviators have cause to believe fighting for the Bush administration is tantamount to a war crime. The story below has set a precedent and should be read by every American eligible for the pending draft (or their firends and family).
by Marjorie Cohn for t r u t h o u t
"I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
~Lt. Cmdr. Robert Klant, presiding judge at Pablo Paredes’ court-martial
SAN DIEGO (Friday 13 May 2005)—In a stunning blow to the Bush administration, a Navy judge gave Petty Officer 3rd Class Pablo Paredes no jail time for refusing orders to board the amphibious assault ship Bonhomme Richard before it left San Diego with 3,000 sailors and Marines bound for the Persian Gulf on December 6th.
Lt. Cmdr. Robert Klant found Pablo guilty of missing his ship’s movement by design, but dismissed the charge of unauthorized absence. Although Pablo faced one year in the brig, the judge sentenced him to two months’ restriction and three months of hard labor, and reduced his rank to seaman recruit.
"This is a huge victory," said Jeremy Warren, Pablos’ lawyer. "A sailor can show up on a Navy base, refuse in good conscience to board a ship bound for Iraq, and receive no time in jail," Warren added.
Although Pablo is delighted he will not go to jail, he still regrets that he was convicted of a crime. He told the judge at sentencing: "I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that, as a service member, I have a duty to refuse to participate in this war because it is illegal."
Pablo maintained that transporting Marines to fight in an illegal war, and possibly to commit war crimes, would make him complicit in those crimes. He told the judge, "I believe as a member of the armed forces, beyond having a duty to my chain of command and my president, I have a higher duty to my conscience and to the supreme law of the land. Both of these higher duties dictate that I must not participate, in any way, hands-on or indirect, in the current aggression that has been unleashed on Iraq."
Pablo said he formed his views about the illegality of the war by reading truthout.org, listening to Democracy Now!, and reading articles by Noam Chomsky, Chalmers Johnson, Naomi Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi Annan’s statements that the war is illegal under the UN Charter—and material on the Nuremberg and Tokyo tribunals.
I testified during the sentencing hearing at Pablo’s court-martial as a defense expert on the legality of the war in Iraq, and the commission of war crimes by U.S. forces. My testimony corroborated the reasonableness of Pablo’s beliefs. I told the judge that the war violates the United Nations Charter, which forbids the use of force, unless carried out in self-defense or with the approval of the Security Council, neither of which were obtained before Bush invaded Iraq. I also said that torture and inhuman treatment, which have been documented in Iraqi prisons, constitute grave breaches of the Geneva Conventions, and are considered war crimes under the U.S. War Crimes Statute. The United States has ratified both the UN Charter and the Geneva Conventions, making them part of the supreme law of the land under the Supremacy Clause of the Constitution.
I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...."
Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that, "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."
I concluded that the Iraq war is illegal. U.S. troops who participate in the war are put in a position to commit war crimes. By boarding that ship and delivering Marines to Iraq—to fight in an illegal war, and possibly to commit war crimes—Pablo would have been complicit in those crimes. Therefore, orders to board that ship were illegal, and Pablo had a duty to disobey them.
On cross-examination, Navy prosecutor Lt. Jonathan Freeman elicited testimony from me that the U.S. wars in Yugoslavia and Afghanistan also violated the UN Charter, as neither was conducted in self-defense or with the blessing of the Security Council. Upon the conclusion of my testimony, the judge said, "I think that the government has successfully proved that any service member has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
The Navy prosecutors asked the judge to sentence Pablo to nine months in the brig, forfeiture of pay and benefits, and a bad conduct discharge. Lt. Brandon Hale argued that Pablo’s conduct was "egregious," that Pablo could have "slinked away with his privately-held beliefs quietly." The public nature of Pablo’s protest made it more serious, according to the chief prosecuting officer.
But Pablo’s lawyer urged the judge not to punish Pablo more harshly for exercising his right of free speech. Pablo refused to board the ship not, as many others, for selfish reasons, but rather as an act of conscience, Warren said.
"Pablo’s victory is an incredible boon to the anti-war movement," according to Warren. Since December 6, 2004, Pablo has had a strong support network. Camilo Mejia, a former Army infantryman who spent nine months in the brig at Fort Sill, Oklahoma, for refusing to return to Iraq after a military leave, was present throughout Pablo’s court-martial.
Tim Goodrich, co-founder of Iraq Veterans against the War, also attended the court-martial. "We have all been to Iraq, and we support anyone who stands in nonviolent opposition," he said.
Fernando Suárez del Solar and Cindy Sheehan, both of whom lost sons in Iraq, came to defend Pablo.
The night before his sentencing, many spoke at a program in support of Pablo. Mejia thanked Pablo for bringing back the humanity and doubts about the war into people’s hearts. Sheehan, whose son, K.C., died two weeks after he arrived in Iraq, said, "I was told my son was killed in the war on terror. He was killed by George Bush’s war of terror on the world."
Aidan Delgado, who received conscientious objector status after spending nine months in Iraq, worked in the battalion headquarters at the Abu Ghraib prison. Confirming the Red Cross’s conclusion that 70 to 90 percent of the prisoners were there by mistake, Delgado said that most were suspected only of petty theft, public drunkenness, forging documents and impersonating officials. "At Abu Ghraib, we shot prisoners for protesting their conditions; four were killed," Delgado maintained.
He has photographs of troops "scooping their brains out."
Pablo’s application for conscientious objector status is pending. He has one year of Navy service left. If his C.O. application is granted, he could be released. Or he could receive an administrative discharge. Worst case scenario, he could be sent back to Iraq. But it is unlikely the Navy will choose to go through this again.
Marjorie Cohn, a contributing editor to
t r u t h o u t, is a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.
t r u t h o u t is a daily digest of some of the most important current events happening in the world today. Go to www.truthout.org and subscribe to the email list.
The problem with recruiters
Though a variety of electronic, print and verbal sources, it is plain to see that all four branches of the military are desperately seeking warm bodies to fill uniforms. The stories of how they lie to our children are simply shocking.
Cindy Sheehan: They promised her son a position as a chaplain’s assistant, and that he would never be asked to leave the country or see combat. He was shipped out and killed within two weeks of landing in Iraq.
Recorded message: A recruiter tells a young man to be sure to make his appointment or a warrant will be issued for his arrest.
College student: "Recruiters show up young, looking good, driving nice cars, telling us that the economy sucks, there aren’t any good jobs and that we will never get anywhere. But, if we join up to serve in Iraq, we can have a nice car, money in our pockets, free healthcare and a free ride to a college degree. Most kids are pretty aware that prospects are few and may think that a couple years of military service might be the ticket. Of course, getting killed and being used as a human guinea pig are never mentioned."
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