Court-martial of officer who refused to go to Iraq begins

[jillian]

Jillian, I am not trying to tick you off, but all orders are legally presumed to be lawful unless proven otherwise. Your reference for that is the Manual for Courts Martial. The civilian counterpart is that all defendents are presumed to be sane and of sound mind.

Those are the only times I know of when the burden of proof is shared by the prosecution and the defense.

Meaning. The prosecution must only prove that he did as a point of fact disobey a (presumed) lawful movement order. And, the defense is under the burden to prove the order wasn't lawful. Very thin line, and very hard to prove.

You're certainly not ticking me off. And I know the order is presumed lawful. I also understand, under military law, that in a courts martial there is a presumption of guilt and one has to prove their innocence. My understanding might be incorrect on that one. I think the parallel to the insanity defense is a very good one, for what it's worth. In each, one must admit the commission of a crime and then prove they are absolved of guilt. It is a very thin line and a huge risk for the defense since you take away from the prosecution the burden of proving the person charged committed the underlying act.

[jillian]

Yes, I understood what you said. I was rather taken by your statement "One, you're presuming it was lawful." which implied (to me at least) that it should NOT be presumed lawful...

No. I didn't mean to imply that. On the other hand, I don't know what proof they intend to offer either.

[Gunny]

I make no such assumption. I only said he had the courage of his conviction and is prepared to be punished if he's wrong. I think I also said that I expected him to be convicted.

You also made comment that it was "presumed," and something to the effect of "What if he could prove it unlawful?"

The odds of proving a movement order unlawful are astronomical. It isn't about his view of the war. It's about not obeying an order to be at a specific place at a specific time for a unit movement.

A court martial isn't like civilian court. The SJA is NOT going to allow the war to be tried in his court. He be will tried on the charges against him, and 12 of his fellow officers, all of whom probably went when they were told, are going to judge him on the charges, not his opinion of the war.

[darin]

You also made comment that it was "presumed," and something to the effect of "What if he could prove it unlawful?"

The odds of proving a movement order unlawful are astronomical. It isn't about his view of the war. It's about not obeying an order to be at a specific place at a specific time for a unit movement.

A court martial isn't like civilian court. The SJA is NOT going to allow the war to be tried in his court. He be will tried on the charges against him, and 12 of his fellow officers, all of whom probably went when they were told, are going to judge him on the charges, not his opinion of the war.

Bingo - If he belived the war unlawful, he should have refused the moment he was asked to specifically fight.

For the Record - I asked the prosecuting attorney about this same thing. He said the 'resist lawful order' defense can only be made in regards to specific actions taking place WITHIN a war - not as a means to excuse oneself from the war.

[Gunny]

You're certainly not ticking me off. And I know the order is presumed lawful. I also understand, under military law, that in a courts martial there is a presumption of guilt and one has to prove their innocence. My understanding might be incorrect on that one. I think the parallel to the insanity defense is a very good one, for what it's worth. In each, one must admit the commission of a crime and then prove they are absolved of guilt. It is a very thin line and a huge risk for the defense since you take away from the prosecution the burden of proving the person charged committed the underlying act.

There is not a presumption of guilt. Being presumed innocent until proven guilty is one of the rights of the accused in the military as it is the civil judicial system.



The skinny is that if there isn't a real good chance to convict, charges are dropped. This however, is pretty-much a slam-dunk. He refused to obey and order by missing a movement of troops. That's two counts. The burden of proof is still on the prosecution, but in this case, the proof is obvious.

His taking his case to the media and/or raving against the war in public is conduct unbecoming and officer and gentleman.

He just doesn't have much chance at all except to hope he doesn't get max'd out.

[Gunny]

Bingo - If he belived the war unlawful, he should have refused the moment he was asked to specifically fight.

For the Record - I asked the prosecuting attorney about this same thing. He said the 'resist lawful order' defense can only be made in regards to specific actions taking place WITHIN a war - not as a means to excuse oneself from the war.

True. There are specific charges for cowardice in front of the enemy, etc. Most of those DO carry the max penalty of death. His violations are administrative, and have nothing to do with a war, nor an enemy.

"Were you, Lt Watada, ordered to be at (place) at (time) on (date)?"

"I was."

"Did you report as ordered?"

"I did not."

"No further questions."

[pegwinn]

You're certainly not ticking me off. Good

And I know the order is presumed lawful. Good, we are getting somewhere.

I also understand, under military law, that in a courts martial there is a presumption of guilt and one has to prove their innocence. My understanding might be incorrect on that one. I think the parallel to the insanity defense is a very good one, for what it's worth. In each, one must admit the commission of a crime and then prove they are absolved of guilt. Good try but not quite accurate. The presumption of innocence is still there. Again, the source is the manual for courts martial.

It is a very thin line and a huge risk for the defense since you take away from the prosecution the burden of proving the person charged committed the underlying act. Actually you don't. It is a dual track. The prosecution must still prove its' case. The defendants burden of proof is to create mitigating circumstances that will allow the jury to legally overlook a factual violation. Even if the defense attempts to prove an unlawful order fail, the prosecution must still definitively prove beyond a reasonable doubt that he is guilty.

Here is a link for the manual for courts martial. It is long, but it is searchable. I hope it helps.

[Pale Rider]

The skinny is....

... he's fucked.

He'll be tried and convicted rather quickly. He'll go away, and we won't hear another word about it.

[jillian]

Here is a link for the manual for courts martial. It is long, but it is searchable. I hope it helps.

Thanks for the reference and the information. Cheers.

[Grumplestillskin]

HE was free to join an antiwar protest provided he did not do so as a soldier. IE HE cannot wear his Alphas to the protest, or make antiwar speeches critical of the President.

Generally, I think that is fair enough, too. Unless the war is, IYO, totally illegal. With Iraq it appears far from decided for some. However, what if there was indeed an illegal war. Say Bush decided to invade Mexico, with the support of the Joint Chiefs, because he thought it was a good idea?

But, I submit that those who sacrifice a portion of thier freedom to defend yours are in measureable fact better than those who don't or didn't.

I disagree. I don't measure a person by whether they served in the military or not, but by the man/woman.

Yes, if you receive an unlawful order then you are obligated to not obey it. You are obligated to take steps to correct it. However AS I mentioned above the orders are presumed lawful. If you disobey due to a belief otherwize, you must prove the case.

Fair enough. Maybe Watada will do that. It's about his only chance...

The folks we are discussing are accustomed to having to obey orders from CIC's who are not worthy. Take Bill Clinton or Jimmy Carter as an example. Your assertion that President Bush is "dedicated to neither" is something you will have to prove. Have fun.

I disagree re Carter and Clinton. They were worthy. As for Bush, I don't have to prove it, as you don't re Carter or Clinton. They are just opinions. I think Bush has lived his life with silver spoon in mouth and has hardly sacrificed anything in his privileged life. I think he (note I said think) got a cushy number in the National Guard to avoid Vietnam. And every other thing he did since then was with the help of his daddy, and even then he was hardly a raging success. He has done nothing commendable or admirable in his life other than get sober, which is not something with his upbringing and opportunity in life should wear as a badge of honour, rather they should apologise profusely for wasting a few decades in an alcoholic slumber.

You never did mention where you are from. If I understand your country of origin/residence perhaps I can better educate you.

On my opinions on going to war? Doubtful. My opinions are not based on where I am from.

[jillian]

Here is a link for the manual for courts martial. It is long, but it is searchable. I hope it helps.

Just something I wanted to add. When I said the plea took away the need to prove the underlying crime from the prosecution in both the "unlawful order" "insanity defense" types of cases, what I meant was that the defense in both cases contains an admission to the crime.

For example, when one says not guilty by reason of insanity they have admitted the act, only offered a justification that absolves them of mens rea. In the case of saying he disobeyed an unlawful order, he acknowledges that he did not obey the order, by offers a justification that would absolve him, if he were to prove it, under the military law.

[Gaffer]

First of all I would never want to serve with the SOB. He's not a leader, he's a coward. Orders are to be followed in the military unquestioned. The orders to move are simple orders. If he can't obey the move order what will happen in a combat situation? where the orders have to be followed unquestioned could mean life and death.

In combat when you have to move against an enemy position you do it in leapfrog. Half the unit lays down fire while the other half moves forward. They then lay down fire while the other half moves forward. This continues about 10 to 20 feet at a time until you overrun the position. When the unit commander orders you to move you do it, without question. What you do may save someone elses life on another part of the field. In order for everything to work orders MUST be followed to the letter and immediately. Doing so also presents the fewest casualties.

This guy needs to go to prison and when he gets out he can go be a hippie in san fransissyco. He has no business in the military.

The media wants to make this a circus and play it up as if he's some sort of victim standing up for his rights. He's just a fool.

[darin]

Sean Penn says he's a HERO!!

:vomit:

[Hagbard Celine]

It's a "volunteer" military, but voluntarily try to leave and you pay the piper!

[jillian]

Orders are to be followed in the military unquestioned.

A soldier has an obligation to disobey an illegal order. He's going to pay the piper for his decision if he gambled wrong.