Thursday, December 23, 2010

Cables, Cables, Cables; What’s Hidden Under The Tables, Abducted Laptops, The Right To Disobey Illegal Orders, Films They Don’t Want You To See…

Cables, Cables, Cables; What’s Hidden Under The Tables, Abducted Laptops, The Right To Disobey Illegal Orders, Films They Don’t Want You To See…


There is World Wide Agreement that the American War Of Occupation In Iraq is “An illegal War” in terms of The Geneva Conventions and The UN Charter. The nations and its leaders have been guilty of War Crimes for which they should be held to account and the only reason they have not been dragged before the Bar Of Justice in The Hague, is that the American people still believe FOX News and cling to the notions of “Exceptionalism”; our nation right or wrong, “One Nation Above The Law”.

And we wonder why other nations view us with contempt and detest our very existence. We support the prosecution of war criminals around the globe except for those of the UK, Israel and our own.  If that is not the most arrogant hypocritical of actions; I don’t know what is.

Since when has the pursuit of the truth become criminalized?

When someone becomes a soldier, they swear an oath to support and defend the US constitution by following “lawful” orders.

Thus, they are legally obliged by their own oath to not follow unlawful orders.

An Advisory to US Troops

A Duty to Disobey All Unlawful Orders

by Lawrence Mosqueda

What Bradley Manning did by leaking this critical information has been to uphold his oath as a soldier in the most patriotic way.

Now, compare that with how he has been raked over the coals by most of the mainstream media.

Independent journalist Dahr Jamail spent nine months reporting directly from Iraq, following the US invasion in 2003. His stories have been published by Inter Press Service, Truthout, Al-Jazeera, The Nation, The Sunday Herald in Scotland, the Guardian, Foreign Policy in Focus, Le Monde Diplomatique, the Independent, and many others. On radio as well as television, Dahr reports for Democracy Now!, has appeared on Al-Jazeera, the BBC and NPR, and numerous other stations around the globe.

Jamail is the author of two recent books: Beyond the Green Zone: Dispatches From An Unembedded Journalist (2008) and The Will To Resist: Soldiers Who Refuse To Fight in Iraq and Afghanistan (2009). He also contributed Chapter 6, “Killing the Intellectual Class,” for the book Cultural Cleansing in Iraq: Why Museums Were Looted, Libraries Burned and Academics Murdered (2010). Learn more at

Angola 3 News: On April 4, 2010, released a classified 2007 video of a US Apache helicopter in Iraq, firing on civilians and killing 11, including Reuters’ photojournalist Namir Noor-Eldeen and his driver, 40 year old Saeed Chmagh. No charges have been filed against the US soldiers involved.

In sharp contrast, a 22-year-old US Army intelligence analyst named Bradley Manning has been accused of leaking the classified video. Arrested in May and facing up to 52 years in prison for a range of charges, Manning is now being held under what lawyer/journalist Glenn Greenwald has termed “inhumane conditions.”

Manning’s support website declares that “exposing war crimes is not a crime.”

Indeed, the Nuremberg Laws, established after the horrors of WWII, declare that soldiers have a legal obligation to resist criminal wars.

Let’s please take a closer look at this issue of US war crimes.

What do you think are the strongest arguments that have been made for why US invasions of Iraq and Afghanistan are criminal?

Dahr Jamail: To be clear, while I’ve covered Iraq extensively, I’ve not covered Afghanistan. Thus, I’ll keep all my answers in the context of my expertise, that being Iraq.

That said, the US-led invasion and occupation of Iraq could not have more clearly violated international law. Even former Secretary General of the UN, Kofi Annan, said in September 2004 that the Iraq war was illegal and breached the UN Charter.

An illegal war is thus the mother of all war crimes, for from that stem all the rest. What I’ve seen in Iraq has been a parade of war crimes committed by the US military: rampant torture, collective punishment (Fallujah is an example), deliberate firing on medical workers, deliberate killing of civilians for “sport,” and countless others.

Then, there is the fact that both occupations are so clearly about control of dwindling resources and their transport routes, that the excuses given for them by the US government (both Bush and Obama) are both laughable and insulting to anyone capable of a modicum of critical thought.

A3N: How do you rate the corporate media’s coverage of the Bradley Manning story?

DJ: It’s been a farce. A classic case of “shoot the messenger.” When someone becomes a soldier, they swear an oath to support and defend the US constitution by following “lawful” orders. Thus, they are legally obliged by their own oath to not follow unlawful orders. What Manning did by leaking this critical information has been to uphold his oath as a soldier in the most patriotic way. Now, compare that with how he has been raked over the coals by most of the so-called mainstream media.

A3N: How do they address the argument that “exposing war crimes is not a crime?”

DJ: Usually they don’t, because the corporate media, and the government for that matter, avoid the words “war crime” as though they are a plague. Thus, they avoid the issue at all cost.

A3N: In your opinion, how do the corporate media present the US occupations of Iraq and Afghanistan to the US public?

DJ: With Iraq, the occupation is presented as though it was a mistake, as though the great benevolent US Empire was mistakenly mislead into the war. But since “we” are there, it is good that at least Saddam Hussein has been removed, and now of course the US has only done the best it can in a tough situation.

With Afghanistan, the occupation is presented to the public as the ongoing frontline battle against “terrorism,” while in reality, they should call Afghanistan “pipeline-istan” because it’s all about securing the access corridors for natural gas and oil pipelines from the Black Sea, through Afghanistan (the 4 main US bases there are located along the exact pipeline route) to the coast of Pakistan.

A3N: How does the corporate media narrative contrast with what you have seen first-hand in Iraq?

DJ: The difference is night and day. The whitewashing and outright lying by the corporate media is offensive to me. It is repulsive, in fact, when compared to what the reality on the ground is in Iraq. The brutality of the US military there against the civilian population would shock people. More than 1 million Iraqis have been slaughtered because of the US occupation. As you read this you can know that one in every ten Iraqis remains displaced from their homes. Can you imagine that? The US policy in Iraq has been so destructive, that one out of every ten Iraqis is currently displaced from their home, now at more than 7 years into the occupation?

A3N: Returning now to the issue of soldier resistance, what are the various reasons that anti-war soldiers give as motivation for their opposition to the occupations?

DJ: Mostly from what the soldiers see once they arrive in the occupation: the buckets of money being made by the contractors, the lack of goals for the occupation beyond generating huge amounts of profit for war contractors, and that the reasons given for the invasion/occupation were entirely false. So most seem to become anti-war when they see that they’ve been lied to, used, betrayed, and that they are putting their lives on the line so that war contractors can get richer.

A3N: What are some of the ways that anti-war soldiers in Iraq and Afghanistan have resisted?

DJ: Myriad ways. The most common, and least dramatic, is going AWOL. More than 60,000 soldiers have now taken that route since 11 September 2001. So, often, folks will go do a deployment, come back for a break, then simply not show up when it’s time for their unit to redeploy.

Some of the more interesting means of resistance I’ve found entailed doing what soldiers refer to as “search and avoid” missions. One soldier told me how they would go out to the end of their patrol route in their Humvees, find a big field, and park. They’d call in to base every hour to check in and say, “We’re fine, we’re still searching this field for weapons caches.” And they would sit there doing nothing until the time was up for their patrol, and they’d return to base. I met more and more soldiers who shared similar stories, from all over Iraq, during different times of the occupation. That’s when I realized how low morale was and how widespread different kinds of resistance had become.

Other soldiers found out how to manipulate their locator beacon on the GPS unit in the Humvees, so they’d sit and have tea with Iraqis, while someone moved their beacon around so their base thought they were patrolling.

A3N: How has US military leadership responded to this resistance?

DJ: They don’t know about much of it when it’s happening. Although there have been times when a unit has been caught doing something like the aforementioned, and they’ve broken up the unit, but that has been quite rare overall.

With AWOL troops, the military doesn’t have the manpower to send their MPs after them, so they let them go, wait for them to get a traffic ticket, for example, then the cops hand them over to the MPs who throw the AWOL soldier in the brig to await a court-martial. Then, often, the soldier is told he/she can go back to Iraq/Afghanistan, or they will be court-martialed.

A3N: In your book The Will To Resist, you document many different cases of soldiers that faced criminal charges for their opposition to US wars. We discussed Bradley Manning’s case earlier in this interview, but can you please tell us about any other recent, ongoing cases that have begun since the publication of your book in 2009? How can our readers best support these soldiers?

DJ: Most of those I followed that took place after my book was published have been completed, time served by the soldiers, and then their release into freedom from the military. Two cases of this type really stand out: Victor Agosto and Travis Bishop. Both of these men stood up and refused to be deployed, were court-martialed, served their time, and are now free.

There will be more to come as these occupations persist. A group to follow who regularly supports these resisters is Courage To Resist. They are based in Oakland and are run by Jeff Paterson, himself a resister to the first Gulf War. They do a great job of tracking resisters and what folks can do to support them. Support includes donations, but also making phone calls, writing letters, and other forms of activism.

A3N: In the months leading up to the US invasion of Iraq in 2003, the anti-war movement in the US was relatively strong, but since the invasion began, the anti-war movement seems to have lost considerable momentum and strength. On a practical level, what do you think the US anti-war movement needs in order to be re-energized and finally end these wars?

DJ: At the risk of sounding like a cynic when I feel I’m making an honest assessment, I don’t feel there will be a mass organization of an anti-war movement. We already live in a police state. What is left of the anti-war movement is completely infiltrated, and is being torn apart by sectarianism and profiteering (the peace-industrial-complex).

In addition, I feel that the main reason for the failure of the anti-war movement is that most folks involved in it still believe they can work within the system to generate change, when the system is completely corrupted already. By “system,” I mean the federal government. That apparatus is broken beyond repair, it is completely corrupted, and needs to be dissolved. Thus, any movement that seeks to work within the parameters set by the system (such as weekend permitted demonstrations, thinking you can effectively pressure your representative, etc) is doomed before it begins, because it is still playing by the rules set out by those in power. Rules guarantee never to jeopardize the loss of power by those who hold it.

Only truly radical actions, meant to subvert the system and shut it down to a point where business as usual is impossible until demands are met, are all that is left.

--Angola 3 News is a project of the International Coalition to Free the Angola 3. Our website is where we provide the latest news about the Angola 3. We are also creating our own media projects, which spotlight the issues central to the story of the Angola 3, like racism, repression, prisons, human rights, solitary confinement as torture, and more.

George Washington’s Warning!

"...avoid the necessity of those overgrown military establishments, which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to Republican Liberty."

The word "fascism" has been bandied about for so long all across the spectrum of the left that the word has lost meaning and impact. Hollering "fascist" on the Left has the same utility as barking "liberal" does on the Right - the words are spoken as universal condemnations of all political opponents. Thus, they muddy rather than clarify debate about the philosophies they represent.

Yet we must examine what has happened to politics and society in the United States since January 2001 to see just how much our national discourse is drawing parallel to the fascism that gripped Italy, Germany, Spain, and (yes) the Soviet Union during the 1930's.
In 2001, the American people were awarded, by judicial fiat, a government that in many ways is repeating the same steps that led to World War and, as Churchill put it, "the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science." If we are to sidestep a new abyss, we must recognize the disturbing similarities between 20th century fascist socio-political behaviors and the thoughts and actions of our current national leaders.

The American Heritage Dictionary defines fascism as "a system of government that exercises a dictatorship of the extreme right, typically through the merging of state and business leadership, together with belligerent nationalism." Sound familiar? Just on its surface, the Bush regime is following the above definition. Witness the parade of corporate CEOs that now populates the president's cabinet and key advisory bodies. Observe how quickly the Bushites snapped at the patriotism of anyone - anyone - who challenged their worldview.

Of course there is much more to bother us about Bush, The Republican Party, the Neo-cons and theirs corporate brethren when it comes to unnerving historical parallels. For instance, both the Nazi and Soviet regimes of the 1930's paid a great deal of attention to the Law.

Stalin had a whole new Constitution written in 1936 and proclaimed it the "most democratic in the world", which it was on the surface. Only in the details did one notice that the people were the State and the State was the Leader, so only Comrade Stalin had the "freedoms" written in the Soviet Constitution. Nevertheless, Soviet life proceeded under the new Constitution to follow the Law as it was written.

In Germany, the Nazis co-opted the judiciary before the Reichstag passed laws stripping Jewish citizens of their rights. And Chancellor Hitler was granted "emergency powers" by the democratically-elected Reichstag that he might become the Fuehrer.

In like fashion, the Bush administration  re-wrote or re-interpret laws that had afforded our citizens and non-citizens civil rights protection for almost a generation, while moving to stack our courts with judges that will uphold the "new" laws. What separates fascism from more pedestrian forms of dictatorship is its working to make the legal system a tool of state power. Score one point for the Bushites here. They are followed the script.

Next among the hallmarks of fascism is the need to have permanent enemies and scapegoats to blame for national misfortunes. In Soviet Russia, we saw an endless parade of fascists, Socialists, Trotskyites, and "reactionaries" used as justification for massive military expenditures, arrests, executions, and "re-education" camps.

Francisco Franco branded as "Communist" any group that fought his hard-right suppression of Spanish democracy. The Nazis raised scapegoating to the ultimate horror in their mass extermination facilities for Jews, gypsies, and anyone else blamed for debasing the German kultur.

Then here came the Bushites who defined Mr. Sadaam as the enemy, although Iraqis had thus far done nothing since the 1991 Gulf War to provoke the U.S. 

When Sadaam was no longer credible as the enemy, another will take his place, as he took the place of Osama Bin Laden…The Taliban!

The official scapegoats for American fascists are homosexuals, judging from the endless paranoiac screeds against their "lifestyle" that fuel the right-wing press. The Bushites walkedd delicately here, but sent their troops the message that "special rights" will not be tolerated for gay Americans--therefore persecution and discrimination against them is really okay, but don't quote us. Smirk. That is not about to end.

Which brings us to the mass media: The Nazis were pioneers in using a linkage of popular broadcasting and captive print media to spread their twisted gospel. We still acknowledge Josef Goebbels for his observation that a lie repeated often enough becomes the truth.

And so it is today, with Fox news, the Washington Times, The Standard, and other right-wing media outlets that spewed false stories and twisted statistics so that "average" tax cut amounts apply to everyone, and the University of Michigan operated a "quota" admission system. The less ideologically tilted media take the lead from these distorters.

The Rights, aided by the Republican National Committee, are modern masters of Dr. Goebbels' dictum. In order to find the facts about what is happening in our country, we increasingly must turn to the BBC and Canadian news sources. WikiLeaks has thrown these folks into a blood thirsty assassination syndrome: “The Truth Must Not Be Known”.

Churchill's chilling remark about "perverted science" referred to Nazi attempts to prove that "superhuman" and "subhuman" races existed. Nazi scientists squandered millions of marks measuring foreheads and comparing eye shapes in these efforts. Stalin's scientists attempted, at great human cost, to create a "Soviet" human model using the bogus theory that acquired physical characteristics can be passed along genetically.

Likewise, the twisted Rights trot forth "scientists" who dispute global warming despite overwhelming evidence. Administration representatives to the United Nations have scoffed at human nature and proclaim that worldwide sexual abstinence will curtail both population growth and the spread of AIDS. Again, willful ignorance of scientific truths is a prime symptom that fascism is at work in a society.

Then there is the well-known fascist preoccupation with the use of military force. The Nazi leaders could hardly wait to blood their storm troops in a real war.

 Hitler was "relieved" that the Poles decided to fight him instead of capitulating to German demands.

 Mussolini sent his forces gleefully to war against Ethiopia for no better reason than wanting to beat up a sixth-rate military power.

 The obvious allusions to the behavior of our recent  regimes in Washington would be funny if the expected outcome of their policy was not so tragic.

Twentieth-century fascism was built on "mass movements" that provided electoral muscle for the political parties that advanced the ideology.

 The Nazis had their Brownshirts, the Italians the Blackshirts, the Spanish the Falange, and the Soviets the Red Guards.

 For American fascism, the mass movement role has fallen to the Christian fundamentalists, and now the Tea Baggers,  who may be counted on to turn out loyally in elections, infiltrate local governments, undermine public education, and persecute the chosen scapegoats. In a perverse twist of history, the fundamentalist American fascist base has inoculated itself against charges of anti-semitism by unqualified support for Israel’s hard-line policy towards Palestinians. Thus, organizations such as the Anti-Defamation League, which served for over 50 years as watchdogs against fascism in our country, are suddenly taking sides with the fundamentalists.

A final, somewhat depressing observation about fascism: to fascist leaders, the masses of people they lead are disposable assets.

That offers a possible explanation why the Bush administration did not show much concern for the jobless or those whose retirements were threatened by collapsed 401Ks. It also explains Donald Rumsfeld's blithely calling Vietnam veterans "what was left" after the best and brightest found a way to dodge military service.

Of course, under fascism some people do matter.

 In Nazi Germany, Party Leaders and Industrialists were nicknamed "the Golden Pheasants" for their lavish uniforms and lifestyles.

Likewise, right-wing American corporate leaders are doing just fine, and will conceivably do even better, given Bush tax policy preserved in the name of the recent black-mailed extortion “compromise”. Meanwhile, those who perform the corporations' labor will receive less and less as their income stagnates, their benefits disappear, their jobs do not rematerialize in a faux “Economic Recovery”.

We have been led by a puppet media into accepting as fact that we are recovering from “A Great Recession”, when the reality is that we are in the midst of a skillfully manipulated “Managed Depression”. The total economic collapse of this nation’s economy remains a real possibility and the Right has positioned itself to escape no matter bread lines, homeless camps and even revolution. They will leave; their trillions will be safe abroad.

So this is what lies before us--those of us who grew up in a country that fought and defeated foreign fascism. Democracy triumphed over a dark age. Many of us thought fascism was gone forever. Now it is alive again, and in our own land. Again, we must turn to the words of Churchill:

"We have before us an ordeal of the most grievous kind. We have before us many, many long months of struggle and of suffering. You ask, what is our policy? I can say: It is to wage war, by sea, land and air, with all our might and with all the strength that God can give us; to wage war against a monstrous tyranny, never surpassed in the dark, lamentable catalogue of human crime. That is our policy. You ask, what is our aim? I can answer in one word: It is victory, victory at all costs, victory in spite of all terror, victory, however long and hard the road may be; for without victory, there is no survival."

Liberals must wage war against American fascism on the airwaves, in the print media, on the campuses, in the legislatures, the courts, the Congress, and on the streets. The war is one of ideas, perhaps guns and bombs.

The truth is our weapon, but the greatest weapon of mass destruction is our silence, and prolonged silence ushers in Revolution when conditions are finally too much to bear!


When one enlists in the United States Military, active duty or reserve, they take the following oath:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice.

National Guard enlisted members take a similar oath, except they also swear to obey the orders of the Governor of their state.

Officers, upon commission, swear to the following:

I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.

Military discipline and effectiveness is built on the foundation of obedience to orders. Recruits are taught to obey, immediately and without question, orders from their superiors, right from day-one of boot camp.

Military members who fail to obey the lawful orders of their superiors risk serious consequences. Article 90 of the Uniform Code of Military Justice (UCMJ) makes it a crime for a military member to WILLFULLY disobey a superior commissioned officer. Article 91 makes it a crime to WILLFULLY disobey a superior Noncommissioned or Warrant Officer. Article 92 makes it a crime to disobey any lawful order (the disobedience does not have to be "willful" under this article).

In fact, under Article 90, during times of war, a military member who willfully disobeys a superior commissioned officer can be sentenced to death.

Seems like pretty good motivation to obey any order you're given, right? Nope. These articles require the obedience of LAWFUL orders. An order which is unlawful not only does not need to be obeyed, but obeying such an order can result in criminal prosecution of the one who obeys it. Military courts have long held that military members are accountable for their actions even while following orders -- if the order was illegal.

"I was only following orders," has been unsuccessfully used as a legal defense in hundreds of cases (probably most notably by Nazi leaders at the Nuremberg tribunals following World War II). The defense didn't work for them, nor has it worked in hundreds of cases since.

The first recorded case of a United States Military officer using the "I was only following orders" defense dates back to 1799. During the War with France, Congress passed a law making it permissible to seize ships bound to any French Port. However, when President John Adams wrote the order to authorize the U.S. Navy to do so, he wrote that Navy ships were authorized to seize any vessel bound for a French port, or traveling from a French port. Pursuant to the President's instructions, a U.S. Navy captain seized a Danish Ship (theFlying Fish), which was en route from a French Port. The owners of the ship sued the Navy captain in U.S. maritime court for trespass. They won, and the United States Supreme Court upheld the decision. The U.S. Supreme Court held that Navy commanders "act at their own peril" when obeying presidential orders when such orders are illegal.

The Vietnam War presented the United States military courts with more cases of the "I was only following orders" defense than any previous conflict. The decisions during these cases reaffirmed that following manifestly illegal orders is not a viable defense from criminal prosecution. In United States v. Keenan, the accused (Keenan) was found guilty of murder after he obeyed in order to shoot and kill an elderly Vietnamese citizen. The Court of Military Appeals held that "the justification for acts done pursuant to orders does not exist if the order was of such a nature that a man of ordinary sense and understanding would know it to be illegal." (Interestingly, the soldier who gave Keenan the order, Corporal Luczko, was acquitted by reason of insanity).

Probably the most famous case of the "I was only following orders" defense was the court-martial (and conviction for premeditated murder) of First Lieutenant William Calley for his part in the My Lai Massacre on March 16, 1968. The military court rejected Calley's argument of obeying the order of his superiors. On March 29, 1971, Calley was sentenced to life in prison. However, the public outcry in the United States following this very publicized and controversial trial was such that President Nixon granted him clemency. Calley wound up spending 3 1/2 years under house arrest at Fort Benning Georgia, where a federal judge ultimately ordered his release.

In 2004, the military began court-martials of several military members deployed to Iraq for mistreating prisoners and detainees. Several members claimed that they were only following the orders of military intelligence officials. Unfortunately (for them), that defense won't fly. The mistreatment of prisoners is a crime under both international law, and the Uniform Code of Military Justice (see Article 93 — Cruelty and Maltreatment).
It's clear, under military law, that military members can be held accountable for crimes committed under the guise of "obeying orders," and there is no requirement to obey orders which are unlawful. However, here's the rub: A military member disobeys such orders at his/her own peril. Ultimately, it's not whether or not the military member thinks the order is illegal or unlawful, it's whether military superiors (and courts) think the order was illegal or unlawful.

Take the case of Michael New. In 1995, Spec-4 Michael New was serving with the 1/15 Battalion of the 3rd infantry Division of the U.S. Army at Schweinfurt, Germany. When assigned as part of a multi-national peacekeeping mission about to be deployed to Macedonia, Spec-4 New and the other soldiers in his unit were ordered to wear United Nations (U.N.) Helmets and arm bands. New refused the order, contending that it was an illegal order. New's superiors disagreed. Ultimately, so did the court-martial panel. New was found guilty of disobeying a lawful order and sentenced to a bad conduct discharge. The Army Court of Criminal Appeals upheld the conviction, as did the Court of Appeals of the Armed Forces.

What about an order to participate in a dangerous mission? Can the military legally order one to go on a "suicide mission?" You bet they can.

In October 2004, the Army announced that they it were investigating up to 19 members of a platoon from the 343rd Quartermaster Company based in Rock Hill, South Carolina, for refusing to transport supplies in a dangerous area of Iraq.

According to family members, some of the troops thought the mission was "too dangerous" because their vehicles were unarmored (or had little armor), and the route they were scheduled to take is one of the most dangerous in Iraq.

According to reports, these members simply failed to show up for the pre-departure briefing for the mission.

Can they be punished for this? They certainly can. An order to perform a dangerous mission is lawful, because it's not an order to commit a crime. Under current law, and the Manual for Courts-Martial, "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."

In fact, if it can be shown that one or more of the soldiers influenced others to disobey, they may find the crime of Mutiny, under Article 94 added to the list of charges. Mutiny carries the death penalty, even in "peace time."

So, to obey, or not to obey? It depends on the order. Military members disobey orders at their own risk. They also obey orders at their own risk. An order to commit a crime is unlawful. An order to perform a military duty, no matter how dangerous is lawful, as long as it doesn't involve commission of a crime.

Do Soldiers Have a Duty to Disobey Illegal Orders?

By Patrick F. McDevitt

Mr. McDevitt is an assistant professor of history at the University at Buffalo, State University of New York. He is the author of most recently MAY THE BEST MAN WIN: SPORT. MASCULINITY AND NATIONALISM IN GREAT BRITAIN AND THE EMPIRE, 1880-1935 (Palgrave Macmillan, 2004). He is currently writing a book about social justice and human rights in the Atlantic world.
Joseph Heller’s famous novel Catch-22 is based on the premise that common soldiers can never beat the system. Regardless of the rights or wrongs of the matter, when someone has to pay, it’s going to be your average GI Joe (or Jane), not the military and certainly not the civilians charged with overseeing the military.

As the courts martial of U.S. soldiers suspected of abusing prisoners in Abu Ghraib prison are conducted, we will undoubtedly be hearing a great deal about the so-called "Nuremberg defense." After the Second World War, the victorious Allied powers put dozens of Nazi officials on trial for war crimes in the German city of Nuremberg. The most common defense was that the accused were "just following orders" and therefore not personally responsible for their actions.

The most recognizable of the currently accused soldiers, Pfc. Lynndie England, trotted out the same self-justification when she told CBS news, “We think everything was justified because we were instructed to do this and to do that.”

However, the International Military Tribunal which oversaw the proceedings at Nuremberg rejected this defense, arguing that individuals had an obligation to disobey orders which violate international law.

This precedent has been enthusiastically embraced by activists ever since, who see in the rejection of the Nuremberg defense, an encouragement for civil disobedience. Martin Luther King wrote in his "Letter from a Birmingham Jail" that “one has a moral responsibility to disobey unjust laws.”

However, the Nuremberg defense –- in either its original sense or when used to justify disobeying orders or laws which an individual decides are unlawful – is a Pandora’s box for society.

Take the case of Capt. Lawrence Rockwood, a counter-intelligence officer from the U.S. Army's 10th Mountain Division, which went to Haiti in 1994. Twenty thousand U.S. military personnel were sent to help restore deposed president Jean-Bertrand Aristide and stop human rights abuses by the military regime which had toppled him three years earlier.

Rockwood believed that American inaction in the face of human rights abuses was contrary to international law. His repeated attempts to get his superiors to intervene to improve the degraded conditions of Haiti’s prisons were rebuffed and Rockwood was ordered to cease his investigation. Believing the order to cease was an unlawful one, Rockwood dressed in full battle-gear and attempted to inspect the National Penitentiary, where 85 percent of the prisoners were political prisoners.

The Haitian warden prevented Rockwood from inspecting the prison in its entirety, but even in his brief tour produced evidence of mistreatment. The intervention of the U.S. military attaché convinced Rockwood to return to base. Given the choice of resigning or facing a court martial, Rockwood chose the latter. He told the court, “I am personally responsible for carrying out international law… That is the Nuremberg principle.”

After a trial at which any discussion of human rights violations was disallowed, Rockwood was convicted of numerous offenses. He was dismissed from the army and forfeited all pay, despite the fact that all of his criticisms of the prisons were later held to be valid.

None of this bodes well for the soldiers who are facing court martial for their roles in Abu Ghraib. The U.S. military and government in general want to maintain control of the situation, not protect human rights. Few people are as forthright and impolitic as Oklahoma’s Sen. James Inhofe, who dismissed people interested in investigating what is done in our name as “humanitarian do-gooders,” but his views are clearly widely shared in the country and the current administration.

So where does it leave us as a society if we punish those who carry out unlawful orders and those who disobey unlawful orders? It’s not clear, but it is certain that even if all the accused soldiers are convicted, most of the world will see it as a cover-up as long as no senior civilian official resigns or is fired. Of course, taking responsibility for things that go wrong has not been a hallmark of this administration.

Despite President Bush’s penchant for disregarding international agreements, his virtual abandonment of the Geneva Convention is still surprising, not least of all for the precedent it sets for our own military personal when they are captured by hostile forces. How will the U.S. public react when we’re told that captured Americans are not civilian contactors or POW’s, but rather “enemy combatants” and therefore not protected by Geneva and international law?

Unfortunately for the soldiers on trial, and even more so for those Iraqis who were abused and humiliated while detained without the benefit of trial or due process, it’s unlikely that our approach to international law is going to change while the current administration is in power. We will continue to act as if international law is something for lesser countries to obey and we will continue to squander the reservoir of good will that we possessed after September 11, 2001.

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that military personnel need to obey the "lawful command of his superior officer," 891.ART.91 (2), the "lawful order of a warrant officer", 892.ART.92 (1) the "lawful general order", 892.ART.92 (2) "lawful order". In each case, military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. The moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders, especially if those orders are in direct violation of the Constitution and the UCMJ.

Research reveals some interesting points about the excuses used by war criminals following the Second World War.

Following the Nuremburg Trials, it became clear that the excuse, "I was only following orders" was an area that needed both clarification and elimination.

As a consequence, both the United States and the United Kingdom enshrined in Service Law the "Nuremburg Principle" which states that although Service personnel have an obligation to obey lawful orders from their superiors, they have both a rightand a duty to disobey illegal orders.

The United States Uniform Code of Military Justice (UCMJ) 809.ART.90 (20) states that the Serviceman is to obey the "lawful command of his superior officer." 891.ART.91 (2) states that personnel are to obey "the lawful order of a warrant officer" (subject to rank). In both cases - and in others - the emphasis is on lawful orders only. In other words, US military personnel are not required to follow orders that contravene the Laws and Constitution of the United States.

UK Service Law is far more complicated than American Law. The three Services are bound by different acts, including the Air Force (Constitution) Act 1919, the Air Force Act 1955, the Naval Discipline Act 1955, the Army Act 1955, the Military Code 1883 and the Armed Forces Act 1993. They are also bound by separate Queen's Regulations (QRs), with some articles being joint (applicable to the Royal NavyRoyal MarinesArmy and Royal Air Force equally). Under British Law, Servicemen are directed to "observe and obey all orders of Her Majesty," (see the node on the RAF Oath of Allegiance) as well as those of their senior officers. This is modified by the fact that under QRs personnel are specifically forbidden to commit any war crimesunder any circumstances. The Queen's Commission specifically requires officers to "Observe and follow such Orders and Instructions as from time to time you shall receive from Us, or any superior Officeraccording to the Rules and Discipline of War..." This is a clear indication that Officers are not to follow, ergo not to give, orders that contravene the "Rules and Discipline of War," i.e. the Geneva Conventions.

UCMJ has not been invoked often since its implementation. The first major UCMJ-related incident following Nuremburg was during inquiries and subsequent courts-martial following the My Lai Massacre of 16 March, 1968. This incident probably rates as the worst in US post-War military history. A platoon from 11th Brigade, led by First Lieutenant William Calley, herded 327 old men, women and children - even babies - from the Vietnamese hamlet of My Lai into a ditch and shot them all dead. Calley's court-martial found him guilty of premeditated murder, and sentenced him to life imprisonment (President Nixon, for unclear reasons, immediately commuted his sentence to three years of house arrest).

The various other courts-martial considered the troops' defence - that they were "only following orders" - in the light of UCMJ. Colin Powell, who was involved in the inquiry, writes in his autobiography that many of the officers and even senior NCOs- the "backbone of the armed forces" - were in many cases just filling dead men's shoes, given their rank purely because there was a requirement for someone to fill the position. Thus the argument, "I was only following orders" became difficult to prove - no-one was really sure who was competent enough to give orders, nor of the mental state (considering post-traumatic stress disorder (PTSD)) of those who followed them. Since PTSD is a mental condition, it renders people unable to assume full responsibility for their own actions.

UCMJ was invoked again during the inquiry into the Iran-Contra Affair, in 1987. Sen. Daniel Inouye of Hawaii told Lt Col Oliver North, the man who carried much of the responsibility for the Affair, that he was breaking his US Oath of Allegiance when he "blindly" followed the orders of President Ronald Reagan. In fact, referring to what Col North should have obeyed:

"The uniform code makes it abundantly clear that it must be the Lawful Orders of a superior officer. In fact it says, 'Members of the military have an obligation to disobey unlawful orders.' This principle was considered so important that we, the government of the United States, proposed that it be internationally applied in the Nuremberg Trials."

UCMJ is yet again being invoked now by some opponents of the recent conflict in Iraq, who claim that the conflict contravened the United Nations Charter, the Geneva Conventions and International Law. Similar arguments with respect to UK Service Law and Queen's Regulations are also being made.

The Nuremburg Trials proved beyond any doubt that if the excuse of "I was only obeying orders" could have a consequence as horrifying as the Holocaust it was imperative that International Law must prevent such an excuse being used and accepted ever again. Most nations signatory to the United Nations Charter also enshrine the Nuremburg Principle in their respective national law. It has doubtless prevented people since the War from following illegal orders. Despite the Nuremburg Trials being primarily a dissection of the most horrific phase in recent history, and a trial for those held responsible, they became a massive influence military law throughout much of the developed world following the War, and as long as the Nuremburg Principle is upheld it is hoped that aberrations like the My Lai Massacre remain little more than that - aberrations, isolated yet terrible events.
There's been a lot of furor lately about WikiLeaks and the US State Department documents they published (vs. stole). The United States Congress is seeking to prosecute WikiLeaks founder Julian Assange; Senator Joe Lieberman in a recent Fox News interview stated that Assange (an Australian) should be tried for American treason! He is also contemplating charges against the New York Times for bad citizenship! Do Senators now get to fabricate their own laws? Next he'll outlaw literate people - oh wait - that was Pol Pot.

Every government/police system in the world wishes to prosecute Assange for his part in publishing these documents. I bet if they had their way, the US Congress, Interpol, etc. would also want to prosecute everyone who tweets or blogs, and possibly everyone who's under the age of 25 just on principle.

According to, the average age of this, the 110th Congress is 57 years (55.9 House, 61.7 Senate). This is one of the OLDEST Congresses ever. The average Congressperson was born in 1953, when TVs had two channels, no remotes, and black & white pictures; they were teenagers before it was even possible to send telexes. They graduated from university five years before CNN was created, a decade before personal computers became commercially available, fifteen years before the fall of the Berlin Wall, and almost a quarter of a century before mobile phones were broadly available. The world's population has almost tripled since they were born.

Sadly for them, we are in the midst of the Communication Revolution. Going from the Industrial Revolution (their world) to the Information Revolution to this, the Communication Revolution, we have shifted from standardization (Ford Model T) to discoverability (Internet/Google) to transparency & immediacy. While foreign to these relicsleaders (many of whom have never even read email), the need to be transparent and expect to have anything be immediately exposed for all to see is today's reality. Keeping secrets like you did during the age of Leave it to Beaver, in a time where the latency between information capture and global distribution is measured in seconds is absurd.

History will judge you as it did McCarthy and HUAC - as a Congress unable to fathom a changing world, using its power in desperate ways to impose order, and putting its energy into holding on to the past vs. leading your country towards a brighter future.

Punctuating the 2010 US Government's reaction to this leak is their edict to all government employees instructing them NOT to read any of the WikiLeaks documents. Quoting MSNBCthe Department of Homeland Security sent out a strongly worded memo to all employees and contractors telling them that not only may they not “download or attempt to download” any of the classified WikiLeaks memos onto their computers, they also may not “discuss the content” of such “potentially classified” documents “with persons who would not otherwise be authorized access,” according to a copy of a Dec. 3 memo from the department’s Office of Chief Information Officer. NASA and the Library of Congress have blocked the WikiLeaks site from their employees.

As a Homeland Security employee put it, "So, my grandmother would be allowed to access the cables, but not me."

Remember - these same government leaders have publicly decried the Chinese Government for impeding free information flow to her citizens.

The modern world has left the aging US Congress and various government Ministries bumfuzzled.

How does one de-fuzzle? I don't think it's possible - with apologies to canines everywhere, you can't teach old dogs like Lieberman/Pelosi/etc. new tricks - they're simply too withered, and sadly too entrenched.

Giving them some credit, they do understand that the WikiLeaks episode portends an even more dangerous future - one where no secrets are safe, no back-room dealings are kept in the back room, and what happens in Vegas becomes a TV movie that everyone can watch. Their strategy is to delay that future as long as possible, not realizing that their very acts (which only serve to extend the story) are actually helping seal their fate.

That this is news to Congress is not surprising given their agedness, but it is surprising that one of the youngest (and most tech-savvy) presidents in history is behaving so much like his septuagenarian colleagues.

Or is it that the very act of joining the government not only bumfuzzles but also calcifies?
Interestingly, many in the Obama administration are in their mid-20s or older. But something seems to happen when you get into the system - it shapes you more than vice versa.

New York Times
Julian Assange, the founder of WikiLeaks, held a news conference last Friday on the grounds of Ellingham Hall estate. Articles in this series examine ...See all stories on this topic »

Julian Assange: my fate will rest in Cameron's hands if US charges me

Julian Assange said today that it would be "politically impossible" for Britain to extradite him to the United States, and that the final word on his fate ...

Assange says 'high chance' he would be killed in US jail

LONDON — WikiLeaks chief Julian Assange said in an interview published Thursday there was a "high chance" he would be killed in a US jail if he were to be ...

Michael Moore: Another WikiLeaks Cable From the Bush ...
By Michael Moore
Though nowhere near as earth-shattering as the uncovering of misdeeds in Iraq and Afghanistan, these cables provide a bizarre peek into the paranoid minds of the Bush White House when it came to the subject of one Michael Francis Moore. The Huffington Post Full Blog Feed -

WikiLeaks: Top Secret Classification Follies - The Daily Beast
By Julian Hattem
The WikiLeaks cables show the government is overstepping when it comes to classifying official secrets. Julian Hattem of the Center for Public Integrity on why it's a waste of money and credibility to hide thank-you notes.
The Daily Beast - Blogs and Stories -

Between interviewing Michael Moore and declaring her love for Shep Smith (really, who doesn't) Rachel Maddow highlighted one of the most important and least talked-about issues with the WikiLeaks cables.  Just because they're secret doesn't mean they're true.
Case in point.  Last week one of the cables revealed that according to a U.S. diplomat Michael Moore's documentary Sicko was banned from Cuban television.  Except it wasn't.  

So that cable was wrong.  And yet, as Maria Bustillos, who's penned a great piece on this at the Awl, notes:

"The appearance of this cable was greeted with joy by a number of the many right-wing journalists who detest Michael Moore; the story also appeared in The Guardian (mysteriously, only a cached copy is available (Update: And now gone; the cable itself is here)) and The Nation and on BoingBoing.

Said Michael Moore on his blog:

A fact Moore himself noted on his blog ("Traditional journalists are once again just too lazy to lift a finger, point and click their mouse to log into Nexis or search via Google, and look to see if Cuba really did "ban the film.")

And here lies the inherent problem with all this secrecy and transparency: Secrecy does not denote import or truth. Said Maddow.

But because the claim was in a secret government document that was leaked that was not supposed to see the light of day, it makes it seen like it must be true.  That it's been revealed!...It makes leaking stuff a really great way to spread disinformation. 

A Whiff of WikiLeaks? The Case of the Abducted Laptop

Carol Rose writes the On Liberty blog and is executive director of the American Civil Liberties Union of Massachusetts.

When David House, a computer programmer and U.S. citizen who lives in Cambridge, Massachusetts, returned to the U.S. from a vacation in Mexico in early November, Homeland Security agents at the airport seized his laptop, flash-drive, and video camera. There was no suggestion that House had broken any law or that his computer contained any material subject to lawful seizure.

But seven weeks later, the government still hadn’t given them back, so House and the ACLU joined forces earlier this week to send a formal letter demanding their return.

Yesterday, David’s equipment showed up in the mail. Voila!

Of course, I’m all in favor of flexing some ACLU muscle to get Homeland Security to back down from suspicionless searches. But what we really need is a system-wide fix that will stop government agents from repeatedly misusing their border authority to seize and search laptops of Americans based solely on their protected political activity.

You see, this wasn’t an isolated case. Homeland Security is making of habit of using its border authority to conduct warrantless searches of Americans leaving and reentering their own country.

Earlier this fall, the ACLU filed a lawsuit on behalf of Pascal Abidor, a 26-year-old dual French-American citizen who had his laptop searched and confiscated at the Canadian border. Abidor was travelling from Montreal to New York on an Amtrak train in May 2010 when he had his laptop searched and confiscated by Customs and Border Patrol officers. Abidor, a grad student in Islamic Studies, was questioned, handcuffed, taken off the train and kept in a holding cell for several hours before being released without charge. When his laptop was returned 11 days later, there was evidence that many of his personal files, including research, photos and chats with his girlfriend, had been searched. The ACLU sued on behalf of both Abidor and two other groups of ordinary Americans affected by warrantless searches at the border: press photographers and lawyers.

What makes the experience of David House particularly chilling is the fact that he was singled out for a warrantless search and seizure of his computer solely based on his political associations, namely, his involvement in the Bradley Manning Support Network. The network was formed to raise funds and otherwise support a legal defense for Bradley Manning, the American serviceman charged with the unauthorized disclosure of classified materials to Wikileaks.

House was targeted and his laptop seized by government agents simply because he was involved in a legal defense effort on behalf of someone that our government has locked away (in reportedly terrible conditions), and who has not yet had a fair trial.

Meanwhile, Homeland Security still hasn’t returned the laptop and cellphones seized from programmer Jacob Appelbaum at the border without a warrant last July.

As Glenn Greenwald of notes today: “This outrageous practice -- seizing and storing the electronic communications of American citizens with no charges or even any warrants -- is not confined to WikiLeaks; many legitimate American critics of the government are subjected to this repeatedly when they re-enter the country…”

Trolling through laptops in search of membership lists and contacts is particularly alarming, since it violates the right to association under the First Amendment. The U.S. Supreme Court said so -- unanimously – back in 1958, when the state of Alabama tried to force the National Association for the Advancement of Colored People (NAACP) to reveal to the names and addresses of all its members.

The unanimous Supreme Court held that forcing the NAACP and other groups to disclose membership lists would have the effect of suppressing legal associations among the group's members.

The right of everyone – especially political dissidents -- to be free from government prying without a warrant is what James Otis, the Massachusetts lawyer and mentor to John Adams, railed against in his famous speech “Writs of Assistance” back in 1761.

Preventing suspicionless searches became one of the key rallying cries of the American Revolution and the basis for our Fourth Amendment right against unreasonable government search and seizure of our personal papers and effects.

Are we truly so frightened of the WikiLeaks revelations that we are willing to give up these hard-won constitutional freedoms? If so, we’re starting to sound like the “new” Russia – where the Moscow Police chief was quoted yesterday as
saying that things like freedom of travel and defense of civil liberties may “not be practical” anymore. This statement came on the heels of another announcement: that a Moscow newspaper controlled in part by former Soviet leader Mikhail Gorbachev will join forces with WikiLeaks to expose corruption in Russia. Small world!

I, for one, don’t want America to imitate Russia when it comes to civil liberties. But we must re-assert our support for fundamental liberties or risk losing them. James Otis did it for us in 1761 and the NAACP did it again in 1958. It’s nearly 2011, and it’s our turn to stand up for freedom.

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