Navy Judge finds “reasonable cause” to believe wars are illegal


Richard Moore

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Subject: Fw: Navy Judge finds "reasonable cause" to believe wars are illegal
Date: Fri, 13 May 2005 22:34:47 -0700
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Subject: Navy Judge finds "reasonable cause" to believe wars are illegal
 Navy Judge Finds War Protest Reasonable
 By Marjorie Cohn
 t r u t h o u t | Report

 Friday 13 May 2005

            "I think that the government has successfully proved that any
            service member has reasonable cause to believe that the wars
            in Yugoslavia, Afghanistan and Iraq were illegal."
-- Lt. Cmdr. Robert Klant, presiding at Pablo Paredes' court-martial

In a stunning blow to the Bush administration, a Navy judge
gave Petty Officer 3rd Class Pablo Paredes no jail time for
refusing orders to board the amphibious assault ship Bonhomme
Richard before it left San Diego with 3,000 sailors and
Marines bound for the Persian Gulf on December 6th. Lt. Cmdr.
Robert Klant found Pablo guilty of missing his ship's movement
by design, but dismissed the charge of unauthorized absence.
Although Pablo faced one year in the brig, the judge sentenced
him to two months' restriction and three months of hard labor,
and reduced his rank to seaman recruit.

"This is a huge victory," said Jeremy Warren, Pablo's lawyer.
"A sailor can show up on a Navy base, refuse in good
conscience to board a ship bound for Iraq, and receive no time
in jail," Warren added. Although Pablo is delighted he will
not to go jail, he still regrets that he was convicted of a
crime. He told the judge at sentencing: "I am guilty of
believing this war is illegal. I am guilty of believing war in
all forms is immoral and useless, and I am guilty of believing
that as a service member I have a duty to refuse to
participate in this War because it is illegal."

Pablo maintained that transporting Marines to fight in an
illegal war, and possibly to commit war crimes, would make him
complicit in those crimes. He told the judge, "I believe as a
member of the armed forces, beyond having a duty to my chain
of command and my President, I have a higher duty to my
conscience and to the supreme law of the land. Both of these
higher duties dictate that I must not participate in any way,
hands-on or indirect, in the current aggression that has been
unleashed on Iraq."

Pablo said he formed his views about the illegality of the war
by reading, listening to Democracy Now!, and
reading articles by Noam Chomsky, Chalmers Johnson, Naomi
Klein, Stephen Zunes, and Marjorie Cohn, as well as Kofi
Annan's statements that the war is illegal under the UN
Charter, and material on the Nuremberg and Tokyo tribunals.

I testified at Pablo's court-martial as a defense expert on
the legality of the war in Iraq, and the commission of war
crimes by US forces. My testimony corroborated the
reasonableness of Pablo's beliefs. I told the judge that the
war violates the United Nations Charter, which forbids the use
of force, unless carried out in self-defense or with the
approval of the Security Council, neither of which obtained
before Bush invaded Iraq. I also said that torture and inhuman
treatment, which have been documented in Iraqi prisons,
constitute grave breaches of the Geneva Conventions, and are
considered war crimes under the US War Crimes Statute. The
United States has ratified both the UN Charter and the Geneva
Conventions, making them part of the supreme law of the land
under the Supremacy Clause of the Constitution.

I noted that the Uniform Code of Military Justice requires
that all military personnel obey lawful orders. Article 92 of
the UCMJ says, "A general order or regulation is lawful unless
it is contrary to the Constitution, the laws of the United
States...." Both the Nuremberg Principles and the Army Field
Manual create a duty to disobey unlawful orders. Article 509
of Field Manual 27-10, codifying another Nuremberg Principle,
specifies that "following superior orders" is not a defense to
the commission of war crimes, unless the accused "did not know
and could not reasonably have been expected to know that the
act ordered was unlawful."

I concluded that the Iraq war is illegal. US troops who
participate in the war are put in a position to commit war
crimes. By boarding that ship and delivering Marines to Iraq -
to fight in an illegal war, and possibly to commit war crimes
- Pablo would have been complicit in those crimes. Therefore,
orders to board that ship were illegal, and Pablo had a duty
to disobey them.

On cross-examination, Navy prosecutor Lt. Jonathan Freeman
elicited testimony from me that the US wars in Yugoslavia and
Afghanistan also violated the UN Charter, as neither was
conducted in self-defense or with the blessing of the Security
Council. Upon the conclusion of my testimony, the judge said,
"I think that the government has successfully proved that any
service member has reasonable cause to believe that the wars
in Yugoslavia, Afghanistan and Iraq were illegal."

The Navy prosecutors asked the judge to sentence Pablo to nine
months in the brig, forfeiture of pay and benefits, and a bad
conduct discharge. Lt. Brandon Hale argued that Pablo's
conduct was "egregious," that Pablo could have "slinked away
with his privately-held beliefs quietly." The public nature of
Pablo's protest made it more serious, according to the chief
prosecuting officer.

But Pablo's lawyer urged the judge not to punish Pablo more
harshly for exercising his right of free speech. Pablo refused
to board the ship not, as many others, for selfish reasons,
but rather as an act of conscience, Warren said.

"Pablo's victory is an incredible boon to the anti-war
movement," according to Warren. Since December 6th, Pablo has
had a strong support network. Camilo Mejia, a former Army
infantryman who spent nine months in the brig at Fort Sill,
Oklahoma, for refusing to return to Iraq after a military
leave, was present throughout Pablo's court-martial. Tim
Goodrich, co-founder of Iraq Veterans against the War, also
attended the court-martial. "We have all been to Iraq, and we
support anyone who stands in nonviolent opposition," he said.
Fernando Suárez del Solar and Cindy Sheehan, both of whom lost
sons in Iraq, came to defend Pablo.

The night before his sentencing, many spoke at a program in
support of Pablo. Mejia thanked Pablo for bringing back the
humanity and doubts about the war into people's hearts.
Sheehan, whose son, K.C., died two weeks after he arrived in
Iraq, said, "I was told my son was killed in the war on
terror. He was killed by George Bush's war of terror on the

Aidan Delgado, who received conscientious objector status
after spending nine months in Iraq, worked in the battalion
headquarters at the Abu Ghraib prison. Confirming the Red
Cross's conclusion that 70 to 90 percent of the prisoners were
there by mistake, Delgado said that most were suspected only
of petty theft, public drunkenness, forging documents and
impersonating officials. "At Abu Ghraib, we shot prisoners for
protesting their conditions; four were killed," Delgado
maintained. He has photographs of troops "scooping their
brains out."

Pablo's application for conscientious objector status is
pending. He has one year of Navy service left. If his C.O.
application is granted, he could be released. Or he could
receive an administrative discharge. Worst case scenario, he
could be sent back to Iraq. But it is unlikely the Navy will
choose to go through this again.

<>Marjorie Cohn, a
contributing editor to t r u t h o u t, is a professor at
Thomas Jefferson School of Law, executive vice president of
the National Lawyers Guild, and the US representative to the
executive committee of the American Association of Jurists.


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Richard Moore (rkm)
Wexford, Ireland

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