There are many kinds of betrayal in human affairs. But in the affairs of state, there is no greater act of disloyalty than to send young men and women to their deaths on the basis of fraud. No soldier should ever give a life, or take a life, for a lie.
All American ranking officers and commanders take an oath to uphold and defend the Constitution. Their oath is a solemn obligation to the American people, especially to their own troops, to abide by the law. Our men and women in uniform place great trust in their superiors. They risk their lives in the belief that they will not be used falsely, illegally, or for ill-gain.
There is no group of Americans with greater interest in the enforcement of international law than American troops themselves. Our youth pay a heavy price when their own rulers plunge them into operations beyond international law. Immediately after the Abu Ghraib scandal, the infamous, retaliatory beheadings began.
The legal status of the occupation of Iraq is not a mystery. Generals know very well that the occupation is based on lies, carried out in defiance of U.S. treaties. The Nuremberg Conventions explicitly repudiate the doctrine of pre-emptive war. The U.N. Charter, for which many of our parents and grandparents gave their lives on the battlefields of Europe, outlaws war as "an instrument of policy." Every general knows that the occupation is a "war of choice." They also know that, except for special U.N.-sanctioned interventions, defensive necessity is the sole legal basis for war. The U.S. Army Field Manual states without equivocation: "Treaties relating to the law of war have a force equal to that of laws enacted by Congress."
There is another kind of protection that is rarely acknowledged. International and humantarian laws protect us from ourselves, from what we can become when war powers are unrestrained. Laws protect combatants from being forced to commit morally repugnant acts, the kind of deeds that burden the souls of soldiers for a lifetime. "War forms its own culture," writes war-correspondent Chris Hedges. "War exposes the capacity for evil that lurks not far below the surface in all of us."
Supreme court Justice Robert Jackson, in his historic address at Nuremberg in 1945 wrote: "Any resort to war is a resort to means that are inherently criminal. War inevitably is a course of killings, assaults, deprivations of liberty, and destruction of property. An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when the war itself is illegal."
Many soldiers of conscience, who dared to speak openly about the immorality and illegality of the war, have been court-martialed and imprisoned. Their cases, dating back to 2004, raise serious doubts about the capacity of our soldiers to receive justice in our military courts. Five months prior to the Abu Ghraib scandal, a soft-spoken Army soldier named Camilo Mejia was visibly upset by the atrocities he observed during his tour of duty in Iraq. Repelled by the slaughter of civilians and the needless deaths of American GIs (all reported in Mejia's riveting combat memoir, The Road to Ar Ramadi, 2007), Camilo gathered up his courage and made formal complaints to his superiors. Commanders refused to listen and questioned his patriotism. Eventually Mejia was sentenced to a year in prison for speaking out, for telling the truth. His trial, like subsequent trials of war resisters, was a travesty of justice. Judge Col. Gary Smith ruled that evidence of the illegality of the war was inadmissible in court, that international law is irrelevant, that a soldier's only duty is to follow orders, regardless of their legality. It is a sad day in military jurisprudence when a soldier of conscience is court-martialed, not for lying, but for telling the truth; not for breaking a covenant with the military, but for upholding the rule of law in wartime. Had commanders listened to Mejia, had judges respected due process and the rule of law, the Abu Ghraib scandal that humiliated our troops might never have occurred.
Our military system is passing through a profound moral and legal crisis. A commander who knowingly orders his troops to participate in crimes against peace betrays himself and those who serve under him or her.
The time has come, it is long overdue, for American generals of conscience to break their silence. Michael T. McPhearson is Executive Director of Veterans For Peace and Ying Lee is a member of Asian Pacific Islanders Resist.