Fw: Courage-to-Resist

----- Original Message -----
From: "Tom Cahill"
To:
Sent: Thursday, May 05, 2005 8:52 AM
Subject: Courage-to-Resist

>
> US War Crimes and the Legal Case for Military Resistance
>
> By Paul Rockwell
>
> CommonDreams.org
>
> Tuesday 03 May 2005
>
> "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.
>
> The Geneva Conventions are not the only humanitarian laws that are
> becoming quaint in the United States.
>
> The Nuremberg Conventions and the U.N. Charter, among a host of
> treaties, are also laws of our land. They uphold the sovereignty of
> nations. They affirm the principle that human rights are measured by one
> yardstick. There are no privileged super-states. The honor and legitimacy
> of military service depends on these laws in respect to war and peace.
> Under the U.N. Charter, except for rare Security Council resolutions,
> defensive necessity is the sole basis for legal war. Outside of genuine
> self-defense, war is aggression. It represents the supreme crime, a "crime
> against peace." Nor is self-defense an elastic, discretionary concept. In
a
> war of self-defense, there must be an armed attack, so demonstrably
> imminent that there is no alternative to force.
>
> Outside defensive necessity, American troops have no obligation to
> serve in war. At least in theory, international law protects soldiers from
> being turned into agents of aggression, mere cannon fodder for greed and
> world domination. It is one thing for Marines, or army reservists or
> sailors to risk life in defense of their country under attack. It is quite
> another to take innocent lives in other countries in order to placate
> corporate lust for power and profit.
>
> Massive War Crimes Spawn Resistance
>
> The enlistment contract, the very relationship between soldiers and
> military service, must be re-examined in the light of what the world has
> learned about monstrous and systematic war crimes in Iraq, sanctioned
> brutality that goes far beyond the scandals at Abu Ghraib.
>
> The pattern of U.S. atrocities in Iraq provide not only motivation,
but
> the legal basis for military resistance. When war crimes are systematic,
> especially when they are intrinsic to the imperial nature of invasion,
> resistance is justified.
>
> The mounting evidence from Iraq-testimony about raided hospitals,
> "wanton destruction of towns and villages," U.S. cluster-bomb shrapnel
> buried in the flesh of children, babies deformed by depleted uranium,
farms
> and markets destroyed by 500-pound bombs-establishes what many Americans
do
> not want to face: that the highest leaders of our land are violating
almost
> every international agreement relating to the rules of war. The forcible
> transfer of populations from their homes and towns; collective reprisals
> against civilians in cities where resistance flourished; mass roundups and
> imprisonment of non-combatants; the destruction of crops; the placing of
> prisoners in the line of fire; the shooting of unarmed prisoners at
> demonstrations; the use of heinous weapons that are indiscriminate and
> cause unnecessary suffering; constant, predictable checkpoint killing of
> civilians; the use of economic sanctions leading to death and
malnutrition;
> the destruction of hospitals and mosques; the killing of opposition
> journalists; the sacking of museums and cultural artifacts under the eye
of
> the Occupying power; pillage (the selling-off of Iraqi property); the
> rewriting of domestic laws in the occupied territory; shooting disabled
> prisoners (army units are trained in "dead-checking", a war crime);
> torture, rendition (proxy torture); assassinations and summary
> executions-these are just some of the major crimes of planning and
> calculation. The commonplace violations of the Geneva Conventions cannot
be
> reduced to isolated acts of unrestrained individual soldiers. The great
war
> crimes in Iraq are not crimes of passion; they are crimes of policy and
> calculation.
>
> In the annals of collective terror and reprisal, the U.S. siege of
> Fallujah, a city leveled by U.S. air power, ranks with the fascist bombing
> of Guernica in Spain in 1937.
>
> Prior to the onslaught against Fallujah, U.S. commanders drove nearly
> 200,000 Fallujans out of their own city, bereft of housing, food and
water.
> Those who remained in their homes were trapped in a rain of death. The
> siege began with an attack on the Fallujah general hospital. Injured
> patients were forced out of their beds. Doctors were prevented from
> treating, even reporting, casualties. Today Fallujah is a wasteland.
Robert
> Worth in the New York Times reports, in the aftermath of the bombing
> campaign: "Cars sit on the roofs of buildings. Lamp posts lie at odd
> angles. Fire has blackened the face of building after building." No type
of
> building-mosques, homes, medical facilities-was exempt from aerial
> destruction. Five-hundred pound bombs are utterly indiscriminate in their
> effects. A 1,000-pound bomb obliterated the city's rail station, a
transfer
> point for all Iraq. Another strike turned a small hospital into rubble.
> Mosques were assaulted. Entire neighborhoods were flattened. Fires raged
> throughout residential communities. American commanders openly declared
> that Fallujah needed to be "taught a lesson."
>
> The people of Fallujah were murdered in their own homes, their own
> streets, their own hospitals and mosques-in their own homeland. They were
> not threatening any one else's soil. Unlike their invaders, they never
> possessed nuclear weapons. Unlike the CIA, they never aided Osama Bin
> Laden. They possessed no air force, no satellite systems, no anti-aircraft
> weapons, not even bullet-proof vests. Fallujah had no modern means of
> self-defense against industrial war and foreign aerial bombardment.
>
> If the ruin of Fallujah is not a war crime, power is all, there is no
> law, and the very concept of crime is meaningless.
>
> The United States is not a fascist country. There are major
differences
> between the current decay of American law and morals and the
unprecedented,
> unique horrors of the Third Reich. But the evidence from Iraq should give
> us pause: American leaders and commanders are carrying out
> policies-torture, mass collective reprisals, wanton destruction of
> cities-for which Nazi commanders were executed after due process at
> Nuremberg. The Nuremberg Tribunal explicitly repudiated the very doctrine
> which President Bush champions today-preemptive war. The Nazi defendants
at
> Nuremberg cited the concept of preventative war to justify the German
> invasion of Norway. The judges wisely rejected their defense. They ruled
> that a war of choice is a crime against peace.
>
> How can American civilians provide genuine support for their troops?
It
> is impossible to support the troops while supporting the commander who
> betrayed the troops. Yet it is inappropriate for civilians, in their
> position of privilege, to tell soldiers how to behave. We cannot tell our
> troops to disobey orders. Sailors and Marines, and Army reservists have to
> make their own decisions according to their own situation and conscience.
>
> Soldiers deserve our empathy. They are trapped in atrocity-producing
> situations. It's easy to lecture them about the laws of war, but if they
> refuse to carry out illegal policies, they face severe reprisals. And if
> they follow immoral and illegal orders, they are filled with shame, a
> burden which they may repress and carry for life.
>
> When Marine Sgt. Massey refused to continue killing innocent
civilians,
> his commanders ostracized him and treated him with contempt. When Army
> Reservist Aidan Delgado, a witness to multiple war crimes at Abu Ghraib,
> spoke out, his own commanders took away his body armor, putting his life
at
> risk. The American military has reached a point where soldiers are
> imprisoned for telling the truth and upholding the law. Camilo Mejia
> refused to participate in the commission of war crimes. He spent nine
> months in jail. No soldier should ever be forced to choose between his own
> self-preservation and his moral faith.
>
> While we do not encourage soldiers to disobey orders, we must be
> thankful that our warriors of peace-Camilo, Pablo, Kevin, Jimmy, Michael,
> Jeremy and hundreds of others-are defending our Constitution, promoting
> human rights and the sacredness of life. Understanding the legal case for
> resistance, we can join our soldiers of conscience on May 10th, a national
> day of resistance.
>
> ------------------------------------------------------------------------
>
> For information on demonstrations go to: CourageToResist.org.
>
> Paul Rockwell is a columnist for In Motion Magazine.
>
> | t r u t h o u t | FYI | issues | environment | labor | women | health |
> voter rights | multimedia | donate | contact | subscribe |
>
>
>
>
>
>