[NYTr] Boyle Testimony on War's Illegality: Lt Watada Art.32 Hearing

[All the News That Doesn't Fit]

[The Article 32 hearing was held on August 17, 2006. A complete
transcript in .PDF format is available here:
http://thankyoult.org/images/stories/pub/watada-art32.pdf

For an overview of dates, incidents, other references, see the
entry at Wikipedia (but double-check their accuracy!) here:
http://en.wikipedia.org/wiki/Ehren_Watada ]


sent by Francis Boyle - Oct 6, 2007

posted at US Labor Against the War
http://www.uslaboragainstwar.org/article.php?id=12046&printsafe=1


Testimony of Professor of International Law Francis A. Boyle, 
of the University of Illinois, on illegality of Iraq Invasion 
United States vs. Lt. Ehren K. Watada (Article 32 hearing)

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?

Francis A. Boyle (FAB):  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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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.

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?

FAB:  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 ... 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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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 Guantanimo 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.

FAB:  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 Guantanimo 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 Guantanimo.

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?

FAB:  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?

FAB:  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 Guantanimo, 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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  Any commander, yes.

Lt. Colonel Keith:  Regardless of the war, he is held responsible --

FAB:  That is correct.

Lt. Colonel Keith: -- for the commitment of his troops in their -- in
their execution of their duties; correct?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  No, I'm not saying that.

Lt. Colonel Keith:  Then I --

FAB:  It depends on the extent of your knowledge, judgment, and
experience.

Lt. Colonel Keith:  Okay.

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  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.

FAB:   Yeah.  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?

FAB:   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 --

FAB:  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?

FAB:   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?

FAB:  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?

FAB:  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 --

FAB:  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?

FAB:  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?

FAB:   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?

FAB:   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."

FAB:  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?

FAB:  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?

FAB:   To do what?

Q:  To facilitate a Nuremberg-type offense?

FAB:   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?

FAB:  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?

FAB:  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?

FAB:  The war itself is a crime against peace.  In addition, 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?

FAB:  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?

FAB:  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 --

FAB:  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?

FAB:  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 --

FAB:  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.

FAB:  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?

FAB:  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?

FAB:  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."

FAB:  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?

FAB:  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 --

FAB:  It was limited.

Q:  I just read to you the authority.

FAB:  Right.  To expel Iraq from Kuwait.  That's it.

Q:  And to restore international peace and security to the area.

FAB:  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?

FAB:  Well, of course, the International Court of Justice could do so.

Lt. Colonel Keith:  Who in the United States has the authority?

FAB:  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?

FAB:  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?

FAB:  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 --

FAB: -- and, two --

Lt. Colonel Keith:  -- had there been --

FAB:  Well, there weren't.

Lt. Colonel Keith:  -- weapons of mass destruction.

FAB:  Well, that ­

Lt. Colonel Keith:  I'm asking, in your professional opinion --

FAB:  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?

FAB:  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.

FAB:  And, by the way, those --

Lt. Colonel Keith:  Congress did authorize action, you allege --

FAB:  They ­

Lt. Colonel Keith:  -- with bad information.

FAB:  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 --

FAB:  I understand your question; right.

Lt. Colonel Keith:  -- would that change -- would that change the
prospect for you, in your mind --

FAB:  Right.  There was still --

Lt. Colonel Keith:  -- as a student of the law --

FAB:  There was still no authorization from the Security Council.

Lt. Colonel Keith:  Okay.

FAB:  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?

FAB:  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?

FAB:   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?

FAB:  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?

FAB:  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?

FAB:  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?

FAB:  That's correct.

Q.  Thank you. 

[end]