[Peace-discuss] Fwd: Putting on Trial United States' War Crimes Against Iraq

[Jan & Durl Kruse]

FYI
Tonight Francis Boyle spoke at the Urbana City Council Chambers about  
the National Campaign to Impeach President Bush.   As part of the  
rationale for impeaching Bush is his administration's violation of  
the Geneva Conventions, Nuremburg Charter, Nuremburg Principles, and  
Nuremburg Judgement.  Below Dr. Boyle discusses and shares his  
testimony on behalf of Lt. Watada who is currently being  
courtmartialed because he refused to serve a second tour in Iraq.   
Even though this attachment is extremely long, about half way through  
is the verbatim testimony Dr. Boyle gave on October 17, 2006 at Fort  
Lewis in Lt. Watada's defense. Fascinating reading, giving the legal  
arguments why this war is illegal.
>
>
>
> Statement on Behalf of Lt. Ehren Watada
>
> By Francis A. Boyle
> Professor of International Law
> 7 June 2006
>
> One generation ago the peoples of the world asked themselves:
> Where were the "good" Germans? Well, there were some good Germans. The
> Lutheran theologian and pastor Dietrich Bonhoeffer was the foremost
> exemplar of someone who led a life of principled opposition to the
> Nazi-terror state even unto death.
>
> Today the peoples of the world are likewise asking themselves:
> Where are the "good" Americans? Well, there are some good Americans.
> They are getting prosecuted for protesting against illegal U.S.  
> military
> interventions and war crimes around the world. First Lieutenant Ehren
> Watada is America's equivalent to Dietrich Bonhoeffer, Vaclav Havel,
> Andrei Sakharov, Wei Jingsheng, Aung San Suu Kyi, and others.  He  
> is the
> archetypal American Hero whom we should be bringing into our  
> schools and
> teaching our children to emulate, not those wholesale purveyors of
> gratuitous violence and bloodshed adulated by the U.S. government,
> America's power elite, the mainstream corporate news media, and its
> interlocked entertainment industry.
>
> In international legal terms, the Bush Jr. administration itself
> should now be viewed as constituting an ongoing criminal conspiracy
> under international criminal law in violation of the Nuremberg  
> Charter,
> the Nuremberg Judgment, and the Nuremberg Principles, because of its
> formulation and undertaking of wars of aggression, crimes against  
> peace,
> crimes against humanity, and war crimes that are legally akin to those
> perpetrated by the former Nazi regime in Germany. As a consequence,
> American citizens and soldiers such as Lieutenant Watada possess the
> basic right under international law and the United States domestic  
> law,
> including the U.S. Constitution, to engage in acts of civil resistance
> in order to prevent, impede, thwart, or terminate ongoing criminal
> activities perpetrated by U.S. government officials in their  
> conduct of
> foreign affairs policies and military operations purported to  
> relate to
> defense and counter-terrorism. If not so restrained, the Bush Jr.
> administration could very well precipitate a Third World War.
>
>                              ***
>
> Seattle Times - Jun 7, 2006
>
> Officer at Fort Lewis calls Iraq war illegal, refuses order to go
>
> By Hal Bernton
> Seattle Times staff reporter
>
> In a rare case of officer dissent, a Fort Lewis Army lieutenant has
> refused orders to head out to Iraq this month to lead troops in  
> what he
> believes is an illegal war of occupation.
>
> 1st Lt. Ehren Watada's Stryker brigade is scheduled to make its first
> deployment to Iraq this month. His refusal to accompany these troops
> puts him at risk of court-martial and years of prison time.
>
> "I feel that we have been lied to and betrayed by this  
> administration,"
> Watada said Tuesday in a telephone interview from Fort Lewis. "It  
> is the
> duty, the obligation of every soldier, and specifically the  
> officers, to
> evaluate the legality, the truth behind every order -- including the
> order to go to war."
>
> In making his decision, Watada has reached out to peace groups,
> including clergy, students, some veterans opposed to Iraq and others.
> Some war critics are raising money for his legal defense as they  
> seek to
> galvanize broader opposition to Bush administration policy in Iraq.
>
> "There has been an outpouring of support in the Puget Sound area,"  
> said
> David Solnit, who works with the anti-war group Courage to Resist. The
> group and others are helping organize a press conference today in  
> Tacoma
> to launch the support campaign.
>
> Watada met over the weekend with Olympia peace activists, and had  
> hoped
> to attend the press conference. But after a Tuesday meeting with an  
> Army
> colonel, he was given written orders not to attend during duty hours
> between 6:30 a.m. and 5 p.m. Instead, he expects to offer a video
> statement.
>
> Watada's actions also may become a lightning rod for others in the
> debate about the Iraq war.
>
> "He has an obligation to fulfill, and it is not up to the individual
> officer to decide when he is going to deploy or not deploy," said  
> Jerry
> Newberry, a Vietnam veteran and director of communications for the
> Veterans of Foreign Wars. "Some other officer will have to go in his
> place. He needs to think about that."
>
> Watada, a member of the 3rd Brigade, 2nd Infantry Division, is unsure
> what charges he might face. But he is concerned that his decision  
> to go
> public will cause the Army to pile on numerous offenses, such as
> disobeying an order, missing a troop movement and unauthorized  
> absence.
>
> "I think they will do their best to make an example of me," Watada  
> said.
>
> Though some U.S. commissioned officers refused to deploy in the  
> Vietnam
> War and the first Gulf War, it is unclear how many -- if any -- have
> balked at deployment in the Iraq war. Pentagon officials said they had
> no such statistics available.
>
> A Fort Lewis spokesman, Joe Hitt, also had no knowledge of any other
> commissioned officer refusing to deploy. He declined to comment on
> Watada.
>
> Among the enlisted ranks at Fort Lewis, Sgt. Kevin Benderman is  
> serving
> a 15-month sentence at a base correctional facility for refusing a
> second tour of duty in Iraq. Benderman, an Army mechanic for 10 years,
> served in Iraq in 2003 but refused to board a plane for a return  
> trip in
> January 2005.
>
> There is also a much broader category of military personnel who for a
> wide range of reasons have not fulfilled their service obligations.
>
> Since the beginning of the war, more than 7,900 members of the Army,
> Navy, Marines and Air Force have deserted, a small fraction of the
> hundreds of thousands who have served. Pentagon statistics indicate  
> that
> desertions have declined as the war has progressed. They dropped from
> 3,678 in 2003, the first year of the war, to about 2,000 in 2005. The
> desertions typically involve enlisted personnel, not officers.
>
> Watada has not deserted, since he remains on post in Fort Lewis.
>
> Watada, 28, is a native of Hawaii, and an Eagle Scout who graduated  
> from
> Hawaii Pacific University with a finance degree.
>
> His father -- Robert Watada, a retired Hawaii state official -- was
> opposed to the war in Vietnam, and was able to do alternative  
> service in
> the Peace Corps in Peru.
>
> And Robert Watada said he laid out the "pros and cons" of military
> service as his son considered joining the service in the spring of  
> 2003
> as the invasion of Iraq was launched.
>
> "He knew very well of my decision not to go to Vietnam, and he had to
> make his own decision to join the Army," Robert Watada said. "It was
> very noble. He felt like he wanted to do his part for his country."
>
> After the younger Watada enlisted, he was sent to officer-training
> school in Georgia. Watada said he supported the war at that time  
> because
> he believed Iraq had weapons of mass destruction.
>
> "I had my doubts," he said. "But I felt like the president is our
> leader, and he won't betray our trust, and he would know what he was
> talking about, and let's give him the benefit of the doubt." Over the
> past year, his feeling changed as he read up on the war and became
> convinced that there was "intentional manipulation of intelligence" by
> the Bush administration.
>
> In January, Watada told his commanders that he believed that the  
> war was
> unlawful, and therefore, so were his deployment orders. He did not,
> however, consider himself a conscientious objector, since he was  
> willing
> to fight in wars that were justified, legal and in defense of the
> nation.
>
> Watada was told that he could submit his resignation, but that the  
> Army
> would recommend disapproval. That resignation was rejected in May, he
> said.
>
> In a court-martial proceeding, Watada, who has retained civilian
> counsel, said he would try to mount a case about the legality of  
> the war
> under international law and American law. But he is aware that a
> military court might not allow him to make that case.
>
> Peace activists say they hope more military personnel will refuse  
> to go
> war.
>
> "We plan a national campaign to try to make sure that he is not  
> punished
> for what he is doing," Solnit said.
>
> [Seattle Times reporter Alex Fryer contributed to this story.]
>
> Copyright (c) 2005 The Seattle Times Company
>
>
> VERBATIM
>
> PROCEEDINGS OF AN ARTICLE 32(B) INVESTIGATION
>
> in the case of
>
> United States vs. Lt. Ehren K. Watada,
>
> Headquarters and Headquarters Company, I Corps,
>
>
>
> Building 2027B, Fort Lewis, WA 98433
>
>
>
> 17 August 2006, 9:08 a.m.
>
>
>
> Reporter's Transcript of Audio Recording of Proceedings
>
>
> PERSONS PRESENT:
>
> LTC Mark Keith
> Investigating Officer
>
> CPT Daniel Kuecker
> Trial Counsel
>
> CPT Scott Van Sweringen
> Assistant Trial Counsel
>
> CPT Mark Kim
> Assistant Defense Counsel
>
> Mr. Eric Seitz
> Defense Counsel
>
> SSG Richard M. Goldstein
> Reporter
>
> 1LT Ehren K. Watada
> Accused
>
> . . . .
>
> LT. COLONEL KEITH:  Okay. Mr. Seitz, the trial counselor has completed
> their witness list and has shown us their video footage for my
> consideration.  Are you prepared at this time to call your first
> witness?
>
> MR. SEITZ:  Yes.  At this time, we'll call Professor Francis Boyle.
>
> . . . .
>
> Q. Prior to today, have you ever testified in any other judicial
> proceedings?
>
> A. Well, in terms of military proceedings, the court-martial  
> proceedings
> of Marine Corps Corporal Jeff Paterson; then Captain Dr. Yolanda
> Huet-Vaughn, the Army; Captain Lawrence Rockwood, 10th Mountain
> Division; Staff Sergeant Camillo Mejia.  And then I testified many  
> times
> in state and federal court, and also in foreign countries.
>
> Q. And have you on those occasions been qualified as an expert  
> witness?
>
> A. Yes.  In international law and especially the laws of war.  The  
> Field
> Manual 27-10, the man who drafted this for the United States Army,
> Professor Richard R. Baxter, was my teacher on the laws of war at
> Harvard Law School.  And I was his top student while I was there.
>
> . . . .
>
> Q. Are you knowledgeable about the United States' obligations under
>          international law?
>
> A. Yes.  I've studied and written about them repeatedly during the  
> last
> 28 years as a professor.
>
> Q. And in what manner does international law determine how and when  
> the
> United States may wage war against another country?
>
> A. Well, Mr. Seitz, it's not just international law, it's the U.S.  
> Army
> Field Manual 27-10.  Professor Baxter, who drafted this for the Army,
> incorporated international law directly into 27-10.  And all the rules
> are here.  I'm not going to go through them all.
>
> But, basically, as drafted by Professor Baxter, 27-10 includes the  
> Hague
> Conventions of 1899 and 1907, the Kellogg-Briand Peace Pact of  
> 1928, the
> United Nations Charter, the Nuremberg Charter, Judgment and  
> Principles,
> as well as the Tokyo War Crimes Tribunals.  Again, this was  
> published by
> the Army as of 1956.  It was supplemented once.  But it is still valid
> and binding on troops in the field, including Lieutenant Watada.
>
> Q. What kinds of requirements must be met before the United States can
> enter into a war?
>
> A. Well, again, the Law of Land Warfare does have a fairly extensive
> section on it.  But there would be two basic requirements, to boil it
> down in a nutshell and not get into all of it, relevant here.
>
> One, warfare would have to be authorized by the United States  
> Congress,
> pursuant to the War Powers Clause of the Constitution.
>
> And then, secondly, unless the United States itself is attacked
> militarily, or its troops, it would have to be authorized by the  
> United
> Nations Security Council.
>
> Otherwise, aggressive warfare would be a Nuremberg crime against  
> peace.
>  And that is stated quite clearly in the Law of Land Warfare. . . . So
> what Professor Baxter did in the Law of Land Warfare for the Army, he
> simply incorporated the Nuremberg Charter and Principles directly into
> the Law of Land Warfare 27-10, including its notion of a crime against
> peace.  And you can read it right in there.  It is clearly listed  
> as an
> international crime.
>
> Q. Did the United States comply with the appropriate procedures to
> obtain authorization before it  invaded Iraq in 2003?
>
> CAPTAIN KUECKER:  Colonel Keith, just for the record, at this point, I
> don't think any of this testimony would be relevant to the actual
> charges against Lieutenant Watada.  It's a nonjusticiable question,  
> the
> question of whether to employ forces, based on a ruling that the  
> witness
> was a witness to in Huet-Vaughn.  The Court clearly said that it's a
> political question whether to employ troops and is nonjusticiable in
> this forum.
>
> Also, being ordered to go to Iraq in the year 2006 is a separate issue
> as opposed to going after Iraq is a sovereign country, is a separate
> issue as opposed to what did or did not happen in 2003.
>
> . . . .
>
> MR. SEITZ:  We can certainly argue the relevance if you want to.  I
> understand there's an objection being made.  Given the nature of these
> charges, particularly the missing movement charge, an order was  
> given to
> a soldier to engage in some conduct, to participate in an action which
> could subject him to sanctions under any of the authorities which  
> we've
> provided you exhibits of or to which Professor Boyle has alluded.   
> Then
> that individual has not only the right, but an obligation to question
> those orders and to determine for himself or herself whether, in
> carrying out those orders, he or she would be compelled to do  
> something
> which is a violation of law, not just international law, but
> international law as incorporated, as Professor Boyle has indicated,
> into domestic law and into rules of engagement for the United States
> Army.
>
> So it isn't as simple as saying that just because you're given an  
> order,
> that you have to abide by it.  There is an obligation which is legally
> recognized at various different levels -- and we've given you some
> authorities for that -- which requires soldiers to make that
> determination for themselves.  And that really is the relevance.
>
> In addition, in this case, we have a number of statements which you've
> seen which are attributed to Lieutenant Watada which are alleged to be
> contemptuous or disloyal or disrespectful.  It's our contention and
> certainly will be our contention at trial that those statements, if
> true, and if accurate commentaries as to what took place with  
> respect to
> this particular war, cannot be punishable.  They are absolutely
> protected.  And they constitute political commentary, which is
> absolutely protected, because, in fact, among other reasons, they are
> true.  And so, for that purpose, we seek to offer evidence to
> demonstrate that what Lieutenant Watada had to say about the war in  
> Iraq
> was not contemptuous, it was not disloyal.  It was, in fact, an  
> accurate
> commentary on the history of how this war began and how it's evolved.
>
> And to say that we're in a different position in 2006 than we were in
> 2003 is also an interesting issue we'd be happy to join at trial with
> counsel.  In our view, the situation is far more serious, worse,  
> knowing
> now what we know today than what we knew back in 2003.
>
> . . . .
>
> LT. COLONEL KEITH:  Okay.  Continue, please.
>
> BY MR. SEITZ:
>
> Q. So, Professor Boyle, my last question to you was, basically, in
> connection with the United States invasion of Iraq in 2003, did the
> United States go through the proper processes and meet its obligations
> before it engaged in that kind of military action?
>
> A. Unfortunately, the Bush administration did not. There was no
> authorization for the United Nations Security Council for the United
> States to wage war against Iraq.  And that made it a crime against
> peace, which is in paragraph 498 of the Field Manual.
>
> "Any person, whether a member of the armed forces or a civilian, who
> commits an act which constitutes a crime under international law is
> responsible therefor and liable to punishment. Such offenses in
> connection with war comprise" a -- "crimes against peace."
>
> Professor Baxter incorporated that directly out of the Nuremberg
> Charter, Judgment and Principles.
>
> Second, with respect to Congressional authorization, there was a War
> Powers Resolution adopted by Congress pursuant to the War Powers
> Resolution.  But, unfortunately, the Bush administration procured that
> authorization from Congress by means of fraud.  First, they lied to
> Congress that Iraq had weapons of mass destruction.  And, second, they
> lied to Congress that Iraq had connections with the terrible  
> tragedy of
>  September 11th.  Neither were true at the time, and this has been
> proven by everything in the public record since then.
>
> This, in my opinion, as a professor that taught criminal law,
> constitutes a conspiracy to defraud the United States government,  
> which
> is a felony.
>
> Q. Does the fact that Congress was induced to authorize the military
> exercise which led to the invasion of Iraq, does that act as a
> substitute for obtaining consent or approval from the United Nations?
>
> A. No.  There are two sources of approval you have to get:  Both the
> Security Council and Congress.  Congress has no authority to  
> authorize a
> crime against peace or war of aggression.
>
> And here I would compare what the Bush, Junior, administration, did to
> the Bush, Senior, administration.  The Bush, Senior, administration
> first obtained authorization from the Security Council, and then,
> second, obtained authorization from the United States Congress, to
> enforce that Security Council resolution.
>
> The Bush, Junior, administration tried to get authorization from the
> Security Council and failed.  I regret to say the President did not  
> even
> follow his father's precedent.
>
> Q. You heard a little discussion a minute ago about events that have
> ensued since 2003, and here we are in 2006.  Do you have any opinions
> with respect to the conduct of the war which would raise issues
> pertaining to whether or not the United States is conducting that  
> war in
> conformity with its obligations under international and domestic law?
>
> A. Right.  Well, under the Field Manual, the same paragraph 498, also
> using the same language that I won't bother to repeat, says:  "Such
> offenses in connection with war comprise, B, crimes against humanity,
> and, C, war crimes." Those are the three classic Nuremberg crimes,
> again, which Professor Baxter directly incorporated into Field Manual
> 27-10.
>
> And certainly, based on my analysis of the situation since the war
> started, regretfully, we have seen war crimes committed in Iraq, for
> example, the Abu Ghraib torture scandal, which, in my opinion, the
> primary responsibility for this goes to the very top of the chain of
> command.  This was authorized certainly by the Secretary of Defense  
> and
> straight on down through the top.  And, yet, so far, the only soldiers
> to have been prosecuted are lower-level individuals.  And the chain of
> command, from Lieutenant General Sanchez straight on up, has  
> escaped any
> responsibility at all.
>
> We also have the use of cluster bombs in civilian areas.  If you  
> were to
> use a cluster bomb on a tank formation or troops or something like  
> that,
> in my opinion, there really is nothing illegal about that. But if you
> use a cluster bomb in a city with substantial civilian presence, I  
> think
> that does not comply with the laws of war.
>
> There's also the use of depleted uranium, which violates the Geneva
> Protocol of 1925, which is also found in the Field Manual.  It's a war
> crime.  And the depleted uranium is not only poisoning Iraqis, it is
> poisoning our own troops.
>
> And this goes back, actually, to Gulf War I. There is extensive
> documentation on this by Major Doug Rokke, who undertook the DU
> investigation for the Pentagon in Gulf War I and, a very conscientious
> soldier, contracted Gulf War Syndrome himself.
>
> Shock and awe to start the war -- of course, that was the Air  
> Force, not
> the Army -- again, a war crime.  The wanton devastation of a city,  
> town,
> or village is a Nuremberg war crime.
>
> So, there are others that we can talk about, but I think those are the
> four major categories I would look at. You have others: murders,  
> rapes,
> et cetera. You know, it seems to me the military authorities are
> attempting to deal with those.
>
> But the top of the chain of command either has authorized or has
> certainly not dealt with those other major crimes that I see.
>
> Q. You have mentioned several times the Nuremberg Judgment.
>
> How is that applicable -- How does that become enforceable in the
> context in which we're dealing with soldiers, and Lieutenant Watada in
> particular, in this period of time?
>
> A. Yes.  The United States government set up the Nuremberg  
> Tribunal.  It
> was our idea.
>
> The Nuremberg Charter is an executive agreement concluded by the
> President in his authority as Commander in Chief of U.S. forces.  You
> can find it in statutes at large.
>
> The Nuremberg Judgment is reported in Federal Rules Decisions.  It  
> is a
> valid, binding decision that applies in U.S. federal courts.  It's  
> not a
> foreign decision, but it is a decision that flows from the President's
> authority as Commander in Chief.
>
> And, finally, of course, Judge Baxter incorporated the principles  
> of the
> Nuremberg Charter, Judgment, and Principles right here in Field Manual
> 27-10.  He did not attempt to write a scholarly treatise or anything,
> but he distilled the essence of the Nuremberg Charter, Judgment, and
> Principles as well as the Tokyo proceedings, and put them in 27-10,
> which is still valid and binding in the field 50 years later, today.
> And it remains substantially the same except for one revision that has
> not changed any of the principles I'm discussing here today.
>
> Q. And also, similarly, with respect to the Geneva conventions, which
> has been mentioned at various different times, how do the Geneva
> conventions become applicable to the factual situation in which we  
> find
> ourselves in this case?
>
> A. Yes, the four Geneva conventions of 1949, are treaties to which the
> Senate has given its advice and consent.  They are the supreme law of
> the land under Article VI of the United States Constitution.  And,  
> once
> again, they are incorporated in haec verba, in those words precisely,
> right here in the Law of Land Warfare, where Judge Baxter put them,  
> with
> some commentary, where necessary, where the exact words needed to be
> supplemented by further practice.  But they are right there in the  
> Field
> Manual.  You can read the references and citations.
>
> So, again, it's made very clear that all members of United States  
> armed
> forces, especially the Army, is bound by the Geneva conventions.
>
> Q. And are you aware of any recent decisions in which the United  
> States
> Supreme Court has emphasized the applicability of the Geneva
> conventions?
>
> A. Yes.  United States versus Hamdan, that just came down this summer.
> As you know, the President is not a lawyer.  But, unfortunately, he  
> got
> very terrible, I would say criminal, legal advice from his White House
> Counsel, Alberto Gonzales at that time, and his Attorney General, John
> Ashcroft -- Gonzales is now the new Attorney General -- that the  
> Geneva
> conventions did not apply to his so-called war on terrorism.
>
> This advice that he received from these political appointees directly
> contradicted the advice that was given to him by the professional
> military lawyers, the JAG lawyers, at the highest level, who were  
> all of
> the position that the Geneva conventions must be applied by United
> States armed forces.  It also directly contradicted advice that the
> President was given by the professional international lawyers at the
> State Department that the Geneva conventions should apply.
>
> Indeed, then Secretary of State Colin Powell, who, as you know, had  
> been
> Chairman of the Joint Chiefs of Staff, sent a memo directly to the
> President, argued to the President that the Geneva conventions  
> should be
> applied, must be applied.
>
> Unfortunately, he listened to these political appointees, and we  
> had the
> torture scandal at Guantanamo, which, due to the major general there,
> acting pursuant to orders of Secretary of Defense Rumsfeld, then  
> went to
> Iraq to "Gitmo-ize" Iraq.  And then, unfortunately, we have the  
> torture
> scandal in Iraq.
>
> It is my personal opinion that if these orders had not been given by
> Secretary of Defense and presumably with the approval of the  
> President,
> none of this scandal would have happened.
>
> The Army's current manual for interrogation of prisoners of war is
> impeccable.  It was drawn up by professional JAG Corps lawyers.  I  
> have
> reviewed it.  It's perfect.  There's nothing wrong with it.  And if  
> not
> for these orders that were given, the Army, following standard  
> operating
> procedure, would have applied the currently existing manual and  
> none of
> this gross, widespread torture would have happened.
>
> Obviously, in wartime, abuses happen, but it would have been sporadic
> and I think immediately repressed.  But here we had wholesale torture.
> And that was Major General Miller, who was in Guantanimo, then went to
> Iraq, and with the consent of Lieutenant General Sanchez, proceeded to
> "Gitmo-ize," as he put it, Iraq.  And that was the origin of  the
> torture scandal in Iraq.
>
> Torture is a grave breach of the Geneva conventions.  It's a  
> serious war
> crime.  Moreover, the International Committee of the Red Cross that  
> has
> supervisory jurisdiction over the Geneva conventions determined  
> that the
> torture, since it appeared to be widespread and systematic in
> Guantanamo, Iraq, and, as you know, it also unfortunately,  
> gravitated to
> Afghanistan, the Gitmo practices, since it was widespread and
> systematic, constituted a crime against humanity. When you have war
> crimes that are widespread or systematic, they become more serious.
> They become crimes against humanity.
>
> And that, too, is found in paragraph 498 of the Field Manual,  
> paragraph
> B.  Such offenses in connection with war comprise crimes against
> humanity.
>
> Again, Professor Baxter took that directly from the Nuremberg Charter,
> Judgment and Principles.
>
> LT. COLONEL KEITH:  Let me interrupt you for a second.  Because I'm
> struggling with the connection between what we've just discussed in
> terms of Geneva convention and Guantanamo and those war crimes that  
> you
> have discussed, that you have alleged have occurred and how that  
> relates
> to Lieutenant Watada and his refusal to deploy.
>
> THE WITNESS:  Colonel, let me do clarify the chain of events here.
>
> That is, before the terrible tragedy of September 11, the Army had an
> interrogation manual which I had read and reviewed and was impeccable.
> There was no problems at all.  It was drawn up by professional JAG  
> Corps
> lawyers at the highest level, everything you would expect from JAG  
> Corps
> lawyers, and no problems at all.
>
> Then, acting pursuant to the advice of Alberto Gonzales and John
> Ashcroft, and rejecting the advice of Colin Powell and the JAG Corps
> lawyers, the President determined not to apply the Geneva  
> conventions to
> al-Qaeda or Taliban.  That decision, then, not to apply the Geneva
> conventions was implemented on Guantanamo under Major General Miller.
>
> Then Secretary of Defense Rumsfeld and his deputies instructed General
> Miller to go to Iraq, and, as he put it, to "Gitmo-ize" Iraq, to apply
> the same type of abusive and violative procedures in Iraq, that were
> applied in Guantanamo.
>
> Again, I think if not for these orders, the Army would have followed
> the basic interrogation manual and I don't believe any of these abuses
> would have occurred.  There would have been abuses, but not  
> widespread,
> systematic, as we have seen in -- regretfully, in the news media  
> coming
> out of Abu Ghraib.
>
> LT. COLONEL KEITH:  But that chain of events would have changed  
> nothing
> for Lieutenant Watada in his decision not to deploy.  I mean, is that
> what I'm -- is that what I understand?
>
> . . . .
>
> A. Well, in the charge on missing movement, it says (reading):  "Any
> person subject to this chapter who, through neglect or design, misses
> the movement of a ship, aircraft, or movement with which he is  
> required
> in the course of duty to move shall be punished as a court-martial may
> direct."
>
> So it raises the question, what is the course of Lieutenant Watada's
> duty under these circumstances of widespread crimes against peace,
> crimes against humanity, and war crimes?  And, in any event, under
> Mullaney versus Wilbur, the government must prove beyond a reasonable
> doubt that Lieutenant Watada had a duty to participate in this war  
> that
> is based on crimes against peace, war crimes, and crimes against
> humanity.
>
> LT. COLONEL KEITH:  Let me ask you one question, and that's, if we're
> discussing, for sake of argument, a declared war that's been declared
> legally through Congress and through all of those provisions that you
> discussed with me earlier, is it still possible, then, to have war
> crimes occur during those legal wars?
>
> THE WITNESS:  Yes. That is correct, Colonel.
>
> LT. COLONEL KEITH:  So the fact that there are war crimes, in your
> opinion, occurring in this war, what relevance does that have to
> Lieutenant Watada's decision not to deploy, and the fact that, from  
> your
> perspective, this war is illegal and unjust to begin with?
>
> In other words, I'm trying to distill your argument to the basic  
> pieces
> of it.  Which is, I believe, the fact that you believe that this  
> war is
> unjust or illegal in that, from the beginning, there was no
> authorization legally to enter into it.  All of the remaining  
> arguments
> in terms of war crimes, what happened at Abu Ghraib, what's been going
> on in Guantanamo, et cetera, are really ancillary to the fact that
> you're saying this war was illegal to begin it; correct?  I mean, is
> there any more to it?
>
> THE WITNESS:  They're cumulative, all three grounds.  That is,  
> under the
> Nuremberg Charter, Judgment, and Principles, a soldier has a right to
> absent himself or herself from committing international crimes.   
> Indeed,
> under certain circumstances, you have an obligation.
>
> That was decided at the Tokyo tribunal, in dealing with high-level
> military officials and government officials.  But it did establish  
> that
> those in command, not civilians, but those in command, have a  
> right, if
> not a duty, to absent themselves from committing international crimes,
> meaning crimes against peace, war crimes, and crimes against humanity.
>
> LT. COLONEL KEITH:  In this circumstance, if we argue that, from your
> perspective, the war is illegal, does the addition of war crimes or  
> the
> addition of further crimes that were conducted in the engagements of
> this war make it -- add anything to Lieutenant Watada's decision?
>
> THE WITNESS:  Definitely, yes.
>
> LT. COLONEL KEITH:  In other words, does it make it worse for him to
> have made that decision not to go?  Does it make it easier for him to
> have made that decision not to go?
>
> THE WITNESS:  I think it would make it easier, Colonel, in the sense
> that he would be commanding troops in the field, and he would have a
> special obligation as a commander to make sure that none of his troops
> committed war crimes.  And if they did commit war crimes, in this
> situation of pervasive, I would say, regretfully, war crimes going on
> here, he could be held criminally accountable for war crimes committed
> by his own troops.
>
> That, too, is found in the Law of Land Warfare.
>
> LT. COLONEL KEITH:  But that is true for every circumstance of war  
> when
> in combat; correct?
>
> THE WITNESS:  Any commander, yes.
>
> LT. COLONEL KEITH:  Regardless of the war, he is held responsible --
>
> THE WITNESS:  That is correct.
>
> LT. COLONEL KEITH:  -- for the commitment of his troops in their -- in
> their execution of their duties; correct?
>
> THE WITNESS:  That is correct.  And, unfortunately, if -- in a  
> situation
> like this war, where you have, I would say, pervasive war crimes, it
> really raises the question of the right, if not the obligation, of
> Lieutenant Watada to say, "I don't want to participate in this."
>
> And the authority for that really goes to the Tokyo War Crimes  
> Tribunal,
> where that tribunal was set up by General MacArthur.  And we tried the
> Japanese war criminals ourselves.  It was not like Nuremberg.  That
> rule, that commanders, both military and civilian, have an  
> obligation to
> prevent war crimes.
>
> LT. COLONEL KEITH:  But, again, I'm trying to understand your  
> argument.
>                        You mentioned "pervasive war crimes" several
> times in terms of the prosecution of this war.  Those --  those war
> crimes are independent actions, are they not? Or are you indicating  
> that
> just the fact that had Lieutenant Watada decided to deploy to this
> conflict, anything he did during that conflict would be considered  
> a war
> crime?  Is that the line of reasoning I understand you to be saying?
>
> THE WITNESS:  No, I'm not saying anything he did. The -- the problem
> here --
>
> LT. COLONEL KEITH:  So is it possible for him to have deployed and not
> committed a war crime in this circumstance?
>
> THE WITNESS:  Well, the problem here is that we have people at the  
> very
> top of the chain of command, up to and including the Secretary of
> Defense, authorizing war crimes.  So it would be very difficult, if  
> not
> impossible, for Lieutenant Watada not to be committing war crimes.
>
> LT. COLONEL KEITH:  Would it be possible for him to have deployed in
> this circumstance and not commit war crimes?
>
> THE WITNESS:  Under the circumstances of this war, if he had deployed,
> he would be facilitating a Nuremberg crime against peace for sure.
>
> LT. COLONEL KEITH:  So just in the -- just in the sheer fact that he
> deployed, he would be committing a war crime?
>
> THE WITNESS:  He would be facilitating a Nuremberg crime against  
> peace.
>
> LT. COLONEL KEITH:  So currently, everyone in theater, by this  
> argument,
> by this reasoning, if you will, everyone in theater, in your opinion,
> who has deployed in support of this operation has committed a war  
> crime
> just by the sheer nature of their deployment?
>
> THE WITNESS:  No, I'm not saying that.
>
> LT. COLONEL KEITH:  Then I --
>
> THE WITNESS:  It depends on the extent of your knowledge, judgment,  
> and
> experience.
>
> LT. COLONEL KEITH:  Okay.
>
> THE WITNESS:  And in the case of Lieutenant Watada, as I understand it
> -- I've only talked to him once before coming here -- he made a very
> extensive study of the facts and the law involved here.  And the more
> you know and the higher your rank, the more your responsibility.
>
> So I'm not saying that everyone over there at all is.  Again, we're
> dealing with questions of criminal intent here.  They have to be  
> proven
> beyond a  reasonable doubt.  And I'm certainly not saying everyone  
> over
> there is facilitating a Nuremberg crime against peace.
>
> But certainly that's the way Lieutenant Watada saw it, based on his
> knowledge, judgment, experience, and study.  And I agree with his
> conclusions.
>
> But, again, it goes to his intent and his knowledge.
>
> LT. COLONEL KEITH:  So in that line, then, it is possible for a  
> soldier
> to have deployed in this conflict and not commit a war crime?
>
> THE WITNESS:  It is possible if that soldier had not studied  
> anything at
> all about the origins of the law.
>
> LT. COLONEL KEITH:  Well, if they were  ignorant of the origins of the
> conflict, in your opinion, is it possible that they could have  
> deployed,
> could be there currently, and not have committed a war crime?
>
> THE WITNESS:  If they had not studied any of the law or any of the  
> facts
> and simply showed up, I'm not saying they are war criminals  
> themselves,
> no.
>
> Again, I still practice criminal law.  I'm not saying any member  
> here of
> U.S. armed forces.  Nuremberg established also, there is no such
> principle as collective guilt.  Every question of guilt or innocence
> under war crimes is individual.  So each soldier would have to be  
> looked
> at in accordance with his knowledge, judgment, and experience about  
> what
> was going on.
>
> I suspect that the vast majority of U.S. armed forces might conclude
> that there are no problems with deployment.  I don't know.  I haven't
> talked to them.
>
> But certainly in the case of Lieutenant Watada, he is an officer.  He
> had an obligation to inform himself.  He was commanding, was going  
> to be
> commanding troops in the field.  He did study.  He did research the
> facts and the law.  And he reached these conclusions.  And he is held
> accountable to what he knows.
>
> And, again, paragraph 501 of the Field Manual makes that clear.
>
> (Reading):
>
> "Such responsibility arises directly when acts in question have been
> committed.  The commander is also responsible if he has actual
> knowledge or should have knowledge through reports received by him or
> through other means that troops or other persons subject to his  
> control
> are about to commit or have committed a  war crime," et cetera, et
> cetera.
>
> So, clearly, in this case, Lieutenant Watada had knowledge.  He had  
> gone
> out, he had done his job as a conscientious officer, he had studied  
> the
> facts and the law, and he had reached the conclusions that he did.
>
> There might be other officers who haven't engaged in the type of study
> that Lieutenant Watada did.   I'm not expressing any opinion about  
> that.
>
> LT. COLONEL KEITH:  And had they not, would they therefore not be  
> guilty
> of war crimes?
>
> THE WITNESS:  Well, they're not here and I'm not expressing an opinion
> about them one way or the other.
>
> But certainly in the case of Lieutenant Watada, he had studied.   
> And so
> his knowledge is higher.  And as a commander, you're charged with the
> knowledge that you have.
>
> LT. COLONEL KEITH:  But in the case of another lieutenant, would it be
> possible that they would, then, therefore be absolved of guilt for  
> a war
> crime had they not studied and done the things that Lieutenant Watada
> had done?
>
> THE WITNESS:  Unfortunately, that wasn't what happened with General
> Yamashita in World War II.
>
> General Yamashita was the commandant of the Philippines.  And troops
> subject to his control committed atrocities against United States  
> armed
> forces. There was no evidence that he had authorized it or approved it
> or anything else.  Indeed, apparently, he had issued instructions that
> this shouldn't happen. Nevertheless, he was tried by a U.S. military
> tribunal and sentenced to death.
>
> And he petitioned for a writ of certiorari to the United States  
> Supreme
> Court.  And the Supreme Court denied the writ of certiorari on the
> grounds that commanders must know -- if a commander knows or should  
> know
> that troops or others subject to his control either commit or are  
> about
> to commit war crimes and fail to do anything about it, they are
> responsible.
>
> And General Yamashita was hanged.
>
> And that principle of law was directly incorporated into U.S. Field
> Manual 27-10 by Professor Baxter.
>
> MR. SEITZ:  I have no further questions of this witness.  Thank you.
>
> LT. COLONEL KEITH:  Trial counsel?
>
>
> ++++++++++++
>
>
> CROSS-EXAMINATION
>
> BY CAPTAIN KUECKER:
>
> Q. You commented on your previous proceedings, the Huet-Vaughn  
> case, the
> Paterson case, and Mejia.
>
> Was your role the same in each one of those? Can you describe briefly
> what your role was as an expert witness.
>
> A.  eah.  I was an expert witness, and I was not paid.  And I have not
> been paid for my appearance here today.
>
> Q. Did you --  Was your focus the same as it is here today or did you
> comment on other aspects?  What was the focus of your testimony?
>
> A. Well, I covered much of the same ground here today in Huet-Vaughn,
> Paterson.
>
> In the court-martial of Captain Rockwood at Fort Drum, we dealt
> primarily with the laws of belligerent occupation that were applicable
> in Haiti. So that was somewhat more technical -- it didn't get into  
> the
> origins of the war of Haiti.  We dealt with the laws of belligerent
> occupation.
>
> Q.   But all of them were with regard to criminal court-martial
> procedures, --
>
> A. Yes.
>
> Q. You say the -- the current mission in Iraq is illegal.
>
> Why hasn't Congress or some other agent, body, taken --  Why does
> Congress continue to fund it if it's  illegal?
>
> A. Actually, in today's "New York Times," Senator Warner, the chair of
> the Senate Armed Services Committee and a Republican, said that, in  
> his
> opinion, Congress is going to have to reexamine the War Powers
> Resolution authorization it has given.
>
> Q. But there is an authorization right now on the table that  
> Congress is
> operating under?
>
> A. Right.  And I've already pointed out, and here I agree with
> Lieutenant Watada, that was procured by fraud.  The Bush  
> administration
> lied about nonexistent weapons of mass destruction in Iraq and lied
> about Iraq's nonexistent connection with Afghanistan and September  
> 11th.
>
> Q. In spite of all that, Congress continues to fund the mission?
>
> A. Well, when you have troops in the field fighting and dying, of  
> course
> you're going to pay for them.
>
> Q. Who in Congress is stating the same rationale as you are with  
> regard
> to --
>
> A. Congressman John Conyers.  And I believe Mr. Seitz is or will
> introduce the report prepared by his staff.  He's the senior ranking
> member of the House Judiciary Committee.
>
> And they have produced a comprehensive report. I read the report, the
> first version, as of December.  I haven't read the current  
> version.  It
> just came out last week.  I was on vacation.
>
> And I've been consulting with Congressman Conyers' office on many of
> these points and providing him advice and information.
>
> Q. And has -- have any bills gone in front of Congress with regard to
> that?
>
> A. I -- you know, I can't recall.
>
> Q. How about in the courts, has this issue been raised and had any
> success in the courts?  Federal court?
>
> A. Not that I'm aware of right now, no.
>
> Q. And with regard to the Huet-Vaughn case that you testified in,  
> isn't
> it true that the court there --  and that's the Court of Appeals  
> for the
> armed forces -- stated that it's a nonjusticiable question whether to
> deploy troops or not, that's a political question,  not for the  
> courts?
>
> A. I don't recall that, no.
>
> The issue was --  In the Army Review Board, actually, they agreed with
> her civilian attorney position that she was denied due process of law.
> And I was there.  I regret to say, it was -- it was sort of a kangaroo
> court proceeding.  Her defense was completely shut down.  And the Army
> Review Board did agree.
>
> Then the Court of Military Appeals reversed on the grounds that, on
> their reading of the record, they felt she had been given due  
> process of
> law.  There might  have been some ancillary comments on the rest of  
> it.
> But the real issue was, was she afforded due process of law at the
> court-martial proceedings.
>
> Q. From that case, Huet-Vaughn here, finally, to the extent that  
> Captain
> Huet-Vaughn intended to contest the legality of the decision to employ
> military forces to the Persian Gulf, the evidence was irrelevant,
> because it pertained to a nonjusticiable political question, citing  
> U.S.
> Supreme Court, Flast v. Cohen, political questions not justiciable by
> federal courts. Another appellant court, the decision to -- whether to
> employ United States troops is not a judicial function.
>
> It also goes on:
>
> "We finally turn to the military judge's instruction that quitting  
> one's
> unit because of  one's conscience, religion, personal philosophies,
> ethical or professional considerations is not a defense."
>
> A. Well, you know, finally, at the end of the day, that's what they
> ruled.  But the essence of it was whether or not she was afforded due
> process of law at the court-martial itself.  And her complete defense
> was totally shut down.  She was not afforded the opportunity to  
> have any
> witnesses on her behalf on substantive issues. I was on the stand for
> about 30 seconds, answered one question, and was thrown off by the
> military judge.  Now, if you think that's fair, I think you might be
> living in the wrong country.  But that's my opinion.
>
> Q. Lieutenant Watada getting on a plane and going to Iraq, that's
> facilitating a war crime, just that alone?
>
> A. If he went to Iraq to facilitate a Nuremberg crime against peace,
> yes.
>
> Q. Any -- any evidence that you have heard that he would be  
> required to
> do that?
>
> A. To do what?
>
> Q. To facilitate a Nuremberg-type offense?
>
> A. Well, my understanding is that he was going to be commanding  
> troops,
> that it was a Stryker Brigade here.
>
> . . . .
>
> Q.  So anyone who deployed with a Stryker Brigade would be  
> facilitating
> a war crime?
>
> A. I didn't say that at all.  But certainly that was the conclusion  
> that
> Lieutenant Watada reached, based on his study of both the facts and  
> the
> law.
>
> Q. And you said earlier that somebody who is well read, has studied  
> the
> origins of the conflict, who would deploy over there, that alone could
> be a facilitator or a war crime in itself, by being there?
>
> A. I didn't say that.  What I said was that based on his study of both
> the facts and the law, he concluded that he had a right to absent
> himself from committing a Nuremberg crime against peace. And I agree
> with him.
>
> Q. Okay.  So, in his mind, he would have been required to do a  
> specific
> act over there that would have been a Nuremberg crime?
>
> A. The war itself is a crime against peace.  In addition, again, --
> Again, the Field Manual makes it clear there are three different types
> of crimes here: crimes against peace, crimes against humanity, and war
> crimes.
>
> And my understanding -- again, I only spoke with Lieutenant Watada  
> once
> -- was, the objection to deploying was not participating in a crime
> against peace.
>
> Second was, again, you have a chain of command here at the highest
> levels who apparently have either authorized or approved pervasive war
> crimes.
>
> Q.   Let me ask it this way, then.  I think I understand.
>
> Let's take a hypothetical where Lieutenant Watada, based on his  
> study of
> the conflict in Iraq, says, "No.  It's unlawful.  I can't go."
>
> Me, on the other hand, I study, study the same works, and I come to a
> different conclusion.
>
> Is it your position that the military should allow Lieutenant  
> Watada to
> stay here and not deploy, whereas I would have to deploy, if we just
> came to different conclusions?
>
> A. The Nuremberg Judgment made it quite clear that where a soldier  
> knows
> to a moral certainty, as he sees it, that an order is illegal, he  
> has to
> disobey that order.
>
> Q. And that's subjective for each individual service member?
>
> A. Yes.  It's subjective.
>
> Q. Good order and discipline is important for the military, of course.
> Do you agree with that?  It's a hallmark condition of --
>
> A. Sure.  My -- my father, after Pearl Harbor, enlisted in the Marine
> Corps.  He invaded Saipan, Tinian, and Okinawa.
>
> Q. So Congress and the country as a whole has a vested interest in
> maintaining good order and discipline within the ranks of the  
> military?
>
> A. Yes.
>
> Q. Based on your philosophy, where one soldier's subjective mind  
> can say
> something's illegal, so that soldier doesn't go, you don't think that
> would affect the good order and discipline of a unit where --
>
> A. A soldier has an obligation to disobey illegal orders.  That's very
> clear from Winthrop and Little v. Barreme, decided by the United  
> States
> Supreme Court.  And you'll find it in Field Manual 27-10.
>
> Q. With regard to the Nuremberg defense that you talked about with
> regard to the obligation to refuse an illegal order, doesn't that --
> again, to Huet-Vaughn, doesn't that apply to individual acts committed
> in wartime?  It does not apply to government's decision to wage war?
> It's directly from the case.
>
> A. That's not what the Field Manual provides. The Field Manual  
> provides
> quite clearly that the decision to wage war itself must follow both
> Constitutional procedures in Congress and authorization from the
> Security Council when -- if the United States government itself
> is not attacked.
>
> Now, if Iraq had actually attacked the United States militarily, that
> would be a different story.  But Iraq never attacked us.  We attacked
> Iraq.  And that made it a crime against peace under the Nuremberg
> Charter, Judgment, and Principles.
>
> And Lieutenant Watada, then, was correct to say, "I don't want to have
> anything to do with a crime against peace."
>
>
> Q. Isn't there a legal argument where the U.N. resolution from back in
> 1990 was still ongoing?
>
> A. Even the Bush administration didn't accept that argument.  And that
> is why, finally, they tried to get a second Security Council  
> resolution
> at the beginning of 2003, and failed.
>
> Q. Isn't it -- isn't it true that Iraq was in breach, material breach,
> and there even was a U.N. resolution on that, they were in material
> breach of that initial resolution?
>
> A. That was for the Security Council to decide, not any  state.
>
> They did not authorize the use of military force in that resolution.
>
> If you study Security Council resolutions authorizing use of force --
> which, by the way, President Bush, Senior, did get.  I ask the  
> question,
> if President Bush, Senior, got authorization for war from the Security
> Council, why didn't President Bush, Junior?
>
> And the answer is, he couldn't get it.  The President Bush, Senior,
> resolution authorized the U.S. government to use all necessary  
> means to
> enforce that -- to expel Iraq from Kuwait.
>
> The Bush, Junior, administration tried to get a similar authorization,
> and failed.  They tried twice, and failed.
>
> Q. That initial resolution said, "And to restore international  
> peace and
> security to the area."
>
> . . . .
>
> A. It -- that resolution was limited to expelling Iraq from Kuwait,
> which the Bush, Senior, administration did.
>
> And, indeed, at that point, the question was, under Bush, Senior,  
> should
> the United States government go all the way to Baghdad and depose  
> Saddam
> Hussein.  And President Bush, Senior, said publicly, "I did not have
> authorization from the Security Council to do that, and so I did  
> not do
> it."
>
> And Bush, Junior, did not have authorization, either, none.
>
> Q. But the 1990 resolution says, legally, he had -- though there might
> be a political reason not to at the time, in 1991 or whatever, but it
> was a political reason.  He had the legal basis for doing it based on
> that 1990 resolution?
>
> A. Well, he's contradicted by his own father. President Bush, Senior,
> specifically said that, "That Security Council resolution gave me no
> authority to send U.S. armed forces to Baghdad."
>
> Q. I just --
>
> A. It was limited.
>
> Q. I just read to you the authority.
>
> A. Right.  To expel Iraq from Kuwait.  That's it.
>
> Q. And to restore international peace and security to the area.
>
> A. Right.  With respect to the Iraqi invasion of Kuwait.
>
> CAPTAIN KUECKER:  I have nothing further. Thanks.
>
> LT. COLONEL KEITH:  Two quick questions, Professor.
>
> One, who has the authority to declare this war illegal?
>
> THE WITNESS: Well, of course, the International Court of Justice could
> do so.
>
> LT. COLONEL KEITH:  Who in the United States has the authority?
>
> THE WITNESS:  A United States federal court could do so as well.   
> Or the
> U.S. Supreme Court could do so as well.
>
> LT. COLONEL KEITH:  To declare the war illegal?
>
> THE WITNESS:  Yes, they could.
>
> LT. COLONEL KEITH:  Had weapons of mass destruction existed and/or the
> tie to 9/11 been founded between Iraq and the 9/11 event, would that
> change your professional opinion on the conduct of this war and the
> legality of this war?
>
> THE WITNESS:  No.  Because at the time in August of 2002 when the  
> Bush,
> Junior, administration was making these allegations, I was involved in
> public debates and interviews, even with lawyers on the other side,
> pointing out, one, there were no weapons of mass destruction in Iraq,
> and anyone who had studied the situation knew that, --
>
> LT. COLONEL KEITH:  I understand.  But I'm saying --
>
> THE WITNESS:  -- and, two, --
>
> LT. COLONEL KEITH:  -- had there been --
>
> THE WITNESS:  Well, there weren't.
>
> LT. COLONEL KEITH:  -- weapons of mass destruction.
>
> THE WITNESS:  Well, that -
>
> LT. COLONEL KEITH:  I'm asking, in your professional opinion, --
>
> THE WITNESS:  Well, there --
>
> LT. COLONEL KEITH:  -- had there been weapons of mass destruction  
> and/or
> a tie to 9/11, would that change your opinion in terms of the
> prosecution of the war, in terms of the legality of the war?
>
> THE WITNESS:  It would all go back to the authorization of the  
> Security
> Council, which was not there, and also authorization by Congress.  And
> Congress, was lied to on both accounts, by weapons of mass destruction
> and by the tie-in to 9/11.
>
> LT. COLONEL KEITH:  Okay.
>
> THE WITNESS:  And, by the way, those --
>
> LT. COLONEL KEITH:  Congress did authorize action, you allege --
>
> THE WITNESS:  They -
>
> LT. COLONEL KEITH:  -- with bad information.
>
> THE WITNESS:  They were defrauded; right.
>
> LT. COLONEL KEITH:  Had 9/11 been tied to the Saddam Hussein regime  
> and
> Congress authorized action, as they did, and a soldier such as
> Lieutenant Watada deployed in the early days of 1993 or the early --
> early -- I'm sorry, not '97 -- 2003, excuse me, --
>
> THE WITNESS:  I understand your question; right.
>
> LT. COLONEL KEITH:  -- would that change -- would that change the
> prospect for you, in your mind, --
>
> THE WITNESS:  Right.  There was still --
>
> LT. COLONEL KEITH:  -- as a student of the law --
>
> THE WITNESS:  There was still no authorization from the Security
> Council.
>
> LT. COLONEL KEITH:  Okay.
>
> THE WITNESS:  Which made it a crime against peace.
>
> And, again, compare what happened here with what President Bush,  
> Senior,
> did, where he did get first authorization from the Security Council  
> and
> then authorization from the United States Congress.
>
> LT. COLONEL KEITH:  No, I understand that.
>
> So your point -- your perspective is still that even independent of
> that, if weapons of mass destruction had, in fact, been found or there
> had been a tie to 9/11, it still would be unlawful in that the U.N.
> hadn't resolved to do anything about it?
>
> THE WITNESS:  The U.N. had refused twice to give President Bush,  
> Junior,
> authorization to use military force against Iraq.  Twice.
>
> He tried, and he failed twice.
>
> LT. COLONEL KEITH:  Okay.
>
>
> +++++++++
>
>
> REDIRECT EXAMINATION
>
> BY MR. SEITZ:
>
> Q. First of all, if in fact there had been a tie-in between Iraq  
> and the
> attack on the United States in 9/11, wouldn't that have justified the
> United States then, on grounds of self-defense, to have unilaterally
> attacked Iraq?
>
> A. Well, that's a far more complicated question.
>
> . . . .
>
> Q. No, I understand.
>
> But I'm asking, I'm saying to you, again, hypothetically, if it had  
> been
> shown that Iraq was involved in an attack on the United States, that
> would have been a sufficient basis for the United States, if it could
> demonstrate that, to take unilateral action on its own?
>
> A. The United States would have a right, under the Constitution and
> Article 51 of the U.N. Charter, to defend itself with necessary and
> proportionate means.
>
> Q. Okay.
>
> And, secondly, if in fact there had been a determination that Iraq did
> have weapons of mass destruction that were threatening the United  
> States
> and/or any other countries, in that situation, at least  
> hypothetically,
> the United Nations might have been in a different position to act than
> what subsequently transpired; isn't that also true?
>
> A. Well, there it's useful to compare it to the Cuban Missile Crisis,
> where Cuba actually had weapons of mass destruction targeted on the
> United States, unlike Iraq.  And on missiles.
>
> And President Kennedy refused the advice of his top advisors to attack
> Cuba.  And he also refused to invoke Article 51, because Cuba had not
> attacked the United States.
>
> So if, under those terrible circumstances, myself having lived through
> the Cuban Missile Crisis and  remembering it quite well, President
> Kennedy did not attack Cuba, I don't understand what the legal  
> basis was
> at all for President Bush, Junior, to have attacked Iraq, even if they
> had some weapons of mass destruction. He should have gone to the
> Security Council, which he did twice, and gotten authorization,  
> which he
> twice failed to do.
>
> Q. Now, going back to your last colloquy with Captain Kuecker, I  
> want to
> just ask you, you would agree, a decision for an individual soldier
> under the legal authorities that you've cited is a subjective decision
> that has to be made individually based upon what that soldier knows?
>
> That's what you said; correct?
>
> A. That is correct.  And that's true for all criminal law.
>
> Q. But that subjective decision which goes to intent and state of  
> mind,
> that occurs within an objective factual situation such as the one we
> have here, where you have stated that there is a problem under
> international law with respect to the initiation of this war.  And
> within that objective context, Lieutenant Watada has decided that's
> something that he cannot participate in?
>
> A. That is correct as well.
>
> Indeed, I -- I certainly wouldn't be here if I did not believe that  
> the
> facts and the law back up what -- the conclusions that Lieutenant
> Watada, who is not a lawyer, reached of his own accord.
>
> Q. So with respect to some other military action which has been  
> properly
> authorized, if in that context some individual soldier subjectively
> decides for himself or herself not to participate, as Captain Kuecker
> correctly pointed out, that would be a problem for discipline and good
> order in the military, which could properly be prosecuted; isn't that
> fair to say?
>
> A. That's correct.
>
> Q. Thank you.