Published on Tuesday, May 3, 2005 by CommonDreams.org
US War Crimes and the Legal Case for Military Resistance
by Paul Rockwell



"Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void, and of no force." Thomas Jefferson


May 10th is a national day of action for GI resisters. A newly formed group, Courage-To-Resist, is organizing veterans, military families, and community activists in a campaign to support military objectors. Demonstrations to support sailor Pablo Paredes, who faces a court martial in San Diego May 11th, are in the making.

On December 6, 2004, Navy Petty Officer Pablo Paredes refused to board his Navy ship. In his press statements, he called attention to the intrinsic wrongs of war, the gross illegality of the invasion of Iraq, and the ongoing pattern of U.S. atrocities in Iraq. "I hope my resistance," said Pablo, "will inspire other GIs to refuse to take part in the wrongful occupation of Iraq."

Kevin Benderman is also facing a court martial at Fort Stewart, Georgia, May 11th. On January 5th, 2005, Benderman refused to deploy for a second tour of duty with his Third Infantry Army Division in Iraq. (Seventeen other soldiers from his unit went AWOL. Two tried to kill themselves). Benderman witnessed atrocities and unforgettable brutality in Iraq. "U.S. military personnel," he said, "are increasingly killing non-combatants. On my last deployment in Iraq, elements of my unit were instructed by a Captain to fire on children throwing rocks at us."

Both Paredes and Benderman are conscientious objectors to war. So far the military has refused to acknowledge their acts of conscience. Both resisters face jail time and lost of pay and benefits.

The moral justification for refusing to participate in unjust wars is not difficult to grasp. We tend to forget, however, that acts of conscience are also affirmations in the rule of law. Camilo Mejia, Stephen Funk, Jeff Paterson (Gulf War objector), Carl Webb, Abdulla Webster, Michael Hoffman, Jimmy Massey, David Blunt, Aidan Delgado, Diedra Cobb, Jeremy Hinzman, Brandon Hughey, and dozens of other war resisters are not only heroes of peace, they are vindicators of the Constitution, the U.N. Charter, Nuremberg Conventions and the Geneva Conventions as well.

American commanders promote a widespread misconception that, once American youth sign an enlistment contract, they are obligated to participate in any kind of war, whether it is based on fraud or truth, whether it is a preemptive invasion or a genuine war of self-defense. In a "voluntary military," Rumsfeld said at a recent press conference, soldiers have no right to complain.

That's preposterous. No soldier owes absolute allegiance to any military system. The prevailing doctrine of blind obedience is a fascist, not a democratic, doctrine of military service. Of course all military systems require discipline, and all operate through a chain of command. But the legal authority of command depends on adherence to the rule of law. As sailor Pablo Paredes noted recently, the U.S. Military Code of Justice says that, while soldiers are obligated to obey all legal orders, the same soldiers have a right, even a duty, to disobey illegal orders. That is the essence of the legal case for military resistance.

Once unrestrained leaders, in their lust for power and world domination, place our military system beyond domestic and international law, the obligation of soldiers to serve the military in its state of lawlessness is dissolved. Long ago Thomas Jefferson captured the spirit of legal resistance when he wrote: "Whensoever the general Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."

A Broken Covenant

It is the U.S. government, not war-resisters, that violate the covenant between soldier and the state. The ways in which the government betrays its promise to our troops are manifold.

First there is no formal declaration of war from Congress, as required by the Constitution. That may seem like a small matter. But James Madison made it clear: the legal power of military command depends on a declaration in accordance with all laws. Nor does Congress have any authority to efface the separation of powers, to transfer its solemn lawmaking obligation to the Executive branch. In the Constitution, war falls under lawmaking, not foreign policy.

In 1952 President Truman took over U.S. steel companies in order to fulfill the material needs of his undeclared war in Korea. The corporations lodged a protest, and the court quickly provided judicial review for the big corporations-the kind of review now denied American soldiers. The Court ruled that a president, whatever emergencies he declares himself, cannot take over industry or private property. Concurring, Justice Jackson wrote: "No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for military and naval establishments." (Youngstown Sheet and Tube Co. v. Sawyer, 343, U.S.)

If the Constitution protects profits of corporations from the tyranny of Presidential war, the same Constitution protects American troops from presidential abuse of power. The same law applies to both. Are the lives of American troops less sacred than corporate profits? The Fifth Amendment also applies to the war-resistance movement: "No person shall be deprived of life, liberty, or property, without due process of law." This amendment dates back to the centuries-old Magna Carta, written to stop arrogant kings from the misuse of soldiers in private wars of power and conquest. Where, then, is due process for American soldiers? Why is judicial review in wartime restricted to American corporations?

In 1866 the Supreme Court clarified the limits of military power: "The Constitution of the United States is a law for rulers of the people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence." (Ex Parte Milligan. 4.Wall, 2)

U.S. troops have no military obligations beyond the Constitution. Moreover, all military power is subject to international treaties codified by the U.S. Senate. The supremacy clause of the Constitution is clear and unequivocal: Article VI provides: "All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State contrary notwithstanding." The treaty clause reflects a profound understanding of the opinions of mankind and makes the United States an equal member of the community of nations. Perhaps history can remind us of the profound significance of the treaty supremacy clause in the Constitution, especially its relevance to soldiers. Article 4 of the Constitution of Germany's Weimar Republic was modeled on the U.S. Constitution. The Weimar Constitution provided that "the generally accepted rules of international law are to be considered as binding integral parts of the law of the German Reich." That law was designed to protect German citizens from the greed and egotism of their own leaders. It not only protected foreign countries, it protected German youth from being used in wars of aggression. We know the rest. The German judiciary caved in to fascism. It did not overthrow the Weimar Constitution. It simply ignored it, as one democratic law after another became "quaint" and obsolete.


END OF PART 1