Military Justice: A World unto its Own
Robert Fantina
January 29, 2007
On June 22, 2006 Lt. Ehren Watada became the first commissioned officer to refuse deployment to Iraq. Expressing his belief that the invasion and occupation of that country are illegal and thus his participation would also be illegal, Lt. Watada stood up against the most powerful military machine in the world. He spoke forcefully against the war and as a result has been charged with ‘contempt of government officials.’
As his case dragged its way to trial, another troublesome issue was raised which demonstrates clearly the lack of justice available to soldiers within the U.S. military system. Lt. Watada was denied the opportunity of challenging the legality of the war, a point on which his refusal to deploy to Iraq was based. Military circuit judge Lt. Col. John M. Head, in his ruling, said the following:
A hearing on the ‘Nuremberg defense’ would consist of witnesses who would testify that the war in Iraq was a crime against peace, a war of aggression, and a violation of the United Nations Charter, other international law, and U.S. law. The accused would testify that his refusal to go to Iraq was based upon the belief that he would be committing war crimes because the United States was involved in a war of aggression and a crime against peace.”
The issue, Lt. Col. Head further stated, is not Lt. Watada’s motivation, but his action.
It is difficult to imagine a civil trial being considered valid if the motivation for the alleged crime were not considered. If a man kills another man, and the issue of motive is not allowed, the superficial facts may be clear. However, on closer scrutiny, if it is determined that the motive for the killing was that the victim first attacked the alleged killer, and in the ensuing fight in which the alleged killer struggled to defend himself, the victim fell to the ground, hit his head and died, a verdict of ‘not guilty’ would likely be rendered.
The judicial system within the military has as its goal not justice, but discipline and control. The military sets charges and conducts trials with that view. This concept has a long and disgraceful prominence in U.S. military history.
During the Civil War, when desertions were rampant, a soldier by the name of William Howe was charged with desertion and murder. The murder charge resulted from a midnight attempt to arrest Mr. Howe for desertion. Not knowing who was attempting to break into his home, Mr. and Mrs. Howe both fired shots, resulting in the death of one of the arresting officers. Mr. Howe’s first trial ended in conviction, which was overturned on a technicality; his second trial, also ending in conviction, was upheld despite clear issues which, had they been present in a civilian trial, would never have been tolerated. The presiding officer of the second trial had previous knowledge of the case, which, according to the rules of court-martial, is a cause for challenge. It is recognized that such knowledge could prejudice the judgment of the officer. Mr. Howe’s attorney issued that challenge, but it was rejected. Additionally, there were unresolved questions about the type of gun Mr. Howe owned and the bullet that killed the victim, as well as some confusion about Mr. Howe’s identity and that of another William Howe who was known to have deserted. That these discrepancies were unresolved did not alter the verdict. Justice, it seems, was not the goal of this travesty. On August 26, 1864, despite an appeal to President Abraham Lincoln, himself a lawyer who should have recognized the gross injustices of this trial, Mr. Howe was executed.
It is estimated that there were approximately 200,000 desertions during the Civil War; there were 141 know executions. Mr. Howe’s desertion did not in any way jeopardize the cause of the Union. It seems clear that the military needed to deter desertions by making an example of a few unfortunate soldiers. Mr. Howe’s trial, conviction and execution apparently had little to do with any reasonable concept of justice.
Eighty-one years later, as World War II raged on, an obscure young private named Eddie Slovik deserted almost as soon as he reached the battlefields of Europe. The fact that he had initially been deemed unfit for service (he had been imprisoned for a number of petty crimes in his youth), and that his desertion in no way jeopardized anyone’s life or the war effort, he was charged and convicted. This was 1944 and desertions were increasing dramatically, partly as a result of the Battle of the Bulge. The military needed an example; Mr. Slovik would serve the purpose. On January 31, 1945, he died in front of a firing squad. He was not quite 25 years old.
Of approximately 20,000 soldiers who deserted during World War II, one can only wonder why Mr. Slovik was the only one executed. If justice were the goal, even in the military’s skewed view, wouldn’t most or all of that number have been executed?
Lt. Watada, an officer, has spoken out publicly. The military cannot afford to let him do so, since his courageous stance may then be repeated by other officers. Justice is not the goal; control over the men and women in the military – their thoughts and actions – is the issue of paramount importance.
Lt. Watada’s fate will ultimately be determined by the military courts, but the court of public opinion will in all probability exonerate him. But that will not prevent a prison sentence and an ‘other than honorable’ discharge from the military. The foundations of the military justice system – a serious misnomer – must be changed to reflect the civilian justice system. Until it does, courageous soldiers like Lt. Watada will continue to be victimized by it.
As his case dragged its way to trial, another troublesome issue was raised which demonstrates clearly the lack of justice available to soldiers within the U.S. military system. Lt. Watada was denied the opportunity of challenging the legality of the war, a point on which his refusal to deploy to Iraq was based. Military circuit judge Lt. Col. John M. Head, in his ruling, said the following:
A hearing on the ‘Nuremberg defense’ would consist of witnesses who would testify that the war in Iraq was a crime against peace, a war of aggression, and a violation of the United Nations Charter, other international law, and U.S. law. The accused would testify that his refusal to go to Iraq was based upon the belief that he would be committing war crimes because the United States was involved in a war of aggression and a crime against peace.”
The issue, Lt. Col. Head further stated, is not Lt. Watada’s motivation, but his action.
It is difficult to imagine a civil trial being considered valid if the motivation for the alleged crime were not considered. If a man kills another man, and the issue of motive is not allowed, the superficial facts may be clear. However, on closer scrutiny, if it is determined that the motive for the killing was that the victim first attacked the alleged killer, and in the ensuing fight in which the alleged killer struggled to defend himself, the victim fell to the ground, hit his head and died, a verdict of ‘not guilty’ would likely be rendered.
The judicial system within the military has as its goal not justice, but discipline and control. The military sets charges and conducts trials with that view. This concept has a long and disgraceful prominence in U.S. military history.
During the Civil War, when desertions were rampant, a soldier by the name of William Howe was charged with desertion and murder. The murder charge resulted from a midnight attempt to arrest Mr. Howe for desertion. Not knowing who was attempting to break into his home, Mr. and Mrs. Howe both fired shots, resulting in the death of one of the arresting officers. Mr. Howe’s first trial ended in conviction, which was overturned on a technicality; his second trial, also ending in conviction, was upheld despite clear issues which, had they been present in a civilian trial, would never have been tolerated. The presiding officer of the second trial had previous knowledge of the case, which, according to the rules of court-martial, is a cause for challenge. It is recognized that such knowledge could prejudice the judgment of the officer. Mr. Howe’s attorney issued that challenge, but it was rejected. Additionally, there were unresolved questions about the type of gun Mr. Howe owned and the bullet that killed the victim, as well as some confusion about Mr. Howe’s identity and that of another William Howe who was known to have deserted. That these discrepancies were unresolved did not alter the verdict. Justice, it seems, was not the goal of this travesty. On August 26, 1864, despite an appeal to President Abraham Lincoln, himself a lawyer who should have recognized the gross injustices of this trial, Mr. Howe was executed.
It is estimated that there were approximately 200,000 desertions during the Civil War; there were 141 know executions. Mr. Howe’s desertion did not in any way jeopardize the cause of the Union. It seems clear that the military needed to deter desertions by making an example of a few unfortunate soldiers. Mr. Howe’s trial, conviction and execution apparently had little to do with any reasonable concept of justice.
Eighty-one years later, as World War II raged on, an obscure young private named Eddie Slovik deserted almost as soon as he reached the battlefields of Europe. The fact that he had initially been deemed unfit for service (he had been imprisoned for a number of petty crimes in his youth), and that his desertion in no way jeopardized anyone’s life or the war effort, he was charged and convicted. This was 1944 and desertions were increasing dramatically, partly as a result of the Battle of the Bulge. The military needed an example; Mr. Slovik would serve the purpose. On January 31, 1945, he died in front of a firing squad. He was not quite 25 years old.
Of approximately 20,000 soldiers who deserted during World War II, one can only wonder why Mr. Slovik was the only one executed. If justice were the goal, even in the military’s skewed view, wouldn’t most or all of that number have been executed?
Lt. Watada, an officer, has spoken out publicly. The military cannot afford to let him do so, since his courageous stance may then be repeated by other officers. Justice is not the goal; control over the men and women in the military – their thoughts and actions – is the issue of paramount importance.
Lt. Watada’s fate will ultimately be determined by the military courts, but the court of public opinion will in all probability exonerate him. But that will not prevent a prison sentence and an ‘other than honorable’ discharge from the military. The foundations of the military justice system – a serious misnomer – must be changed to reflect the civilian justice system. Until it does, courageous soldiers like Lt. Watada will continue to be victimized by it.