A Duty to Disobey All Unlawful Orders

An Advisory to US Troops

by LAWRENCE MOSQUEDA

DOMESTIC AND INTERNATIONAL LAW

As the United States government under George Bush gets closer to attacking the people of Iraq, there are several things that the men and women of the U.S. armed forces need to
know and bear in mind as they are given orders from the Bush
administration. This information is provided for the use of the
members of the armed forces, their families, friends and supporters,
and all who are concerned about the current direction of U.S.
policy toward Iraq.

The military oath taken at the time of induction reads:

"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
the regulations and the Uniform Code of Military Justice. So
help me God"

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.

During the Iran-Contra hearings of 1987, Senator Daniel Inouye of Hawaii, a decorated World War II veteran and hero, told Lt. Col. Oliver North that North was breaking
his oath when he blindly followed the commands of Ronald Reagan.
As Inouye stated, "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-we, the government of the United States, proposed
that it be internationally applied in the Nuremberg trials."
(Bill Moyers, "The Secret Government", Seven Locks
Press; also in the PBS 1987 documentary, "The Secret Government:
The Constitution in Crisis")

Senator Inouye was referring to the Nuremberg trials in the post WW II era, when the U.S. tried Nazi war criminals and did not allow them to use the reason or excuse that they
were only "following orders" as a defense for their
war crimes which resulted in the deaths of millions of innocent
men, women, and children. "In 1953, the Department of Defense
adopted the principles of the Nuremberg Code as official policy"
of the United States. (Hasting Center Report, March-April 1991)

Over the past year there have been literally thousands of articles written about the impact of the coming war with Iraq. Many are based on politics and the wisdom of engaging
in an international war against a country that has not attacked
the U.S. and the legality of engaging in what Bush and Rumsfield
call "preemptive war." World opinion at the highest
levels, and among the general population, is that a U.S. first
strike on Iraq would be wrong, both politically and morally.
There is also considerable evidence that Bush's plans are fundamentally
illegal, from both an international and domestic perspective.
If the war is indeed illegal, members of the armed forces have
a legal and moral obligation to resist illegal orders, according
to their oath of induction.

The evidence from an international perspective is overwhelming. The United States Constitution makes treaties that are signed by the government equivalent to the "law
of the land" itself, Article VI, para. 2. Among the international
laws and treaties that a U.S. pre-emptive attack on Iraq may
violate are: · The Hague Convention on Land Warfare of
1899, which was reaffirmed by the U.S. at the 1946 Nuremberg
International Military Tribunals; · Resolution on the
Non-Use of Nuclear Weapons and Prevention of Nuclear War, adopted
UN General Assembly, Dec 12, 1980; · Convention on the
Prevention and Punishment of the Crime of Genocide; December
9, 1948, Adopted by Resolution 260 (III) A of the UN General
Assembly; · Geneva Convention relative to the Protection
of Civilian Persons in Time of War, Adopted on August 12, 1949
by the Diplomatic Conference for the Establishment of International
Conventions for the Protection of Victims of War; · Convention
on the Prohibition of Military or any Other Hostile Use of Environmental
Modification Techniques, 1108 U.N.T.S. 151, Oct. 5, 1978; ·
The Charter of the United Nations; · The Nuremberg Principles,
which define as a crime against peace, "planning, preparation,
initiation or waging of a war of aggression, or a war in violation
of international treaties, agreements, or assurances, or participation
in a common plan or conspiracy for accomplishment of any of the
forgoing." (For many of these treaties and others, see the
Yale Avalon project at www.yale.edu/lawweb/avalon/imt/imt.htm.
Also see a letter to Canadian soldiers sent by Hamilton Action
for Social Change at http://www.hwcn.org/link/hasc/letter_cf.html)

As Hamilton Action for Social Change has noted "Under the Nuremberg Principles, you have an obligation NOT to follow the orders of leaders who are preparing crimes
against peace and crimes against humanity. We are all bound by
what U.S. Chief Prosecutor Robert K. Jackson declared in 1948:
[T]he very essence of the [Nuremberg] Charter is that individuals
have intentional duties which transcend the national obligations
of obedience imposed by the individual state." At the Tokyo
War Crimes trial, it was further declared "[A]nyone with
knowledge of illegal activity and an opportunity to do something
about it is a potential criminal under international law unless
the person takes affirmative measures to prevent commission of
the crimes."

The outcry about the coming war with Iraq is also overwhelming from legal experts who have studied this in great detail.

By November of 2002, 315 law professors had signed a statement entitled "A US War Against Iraq Will Violate US and International Law and
Set...."

Other legal organizations such as the Lawyers' Committee on Nuclear Policy and the Western States Legal Foundation have written more extensive reports, such as that
by Andrew Lichterman and John Burroughs on "War is Not the
Path to Peace; The United States, Iraq, and the Need for Stronger
International Legal Standards to Prevent War." As the report
indicates "Aggressive war is one of the most serious transgressions
of international law." In fact, at the Nuremberg trials,
the issue was not just individual or collective acts of atrocities
or brutal actions but the starting of an aggressive war itself.
U.S. Supreme Court Justice Robert L. Jackson stated,

"We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we
must not allow ourselves to be drawn into a trial of the causes
of the war, for our position is that no grievances or policies
will justify resort to aggressive war. It is utterly renounced
and condemned as an instrument of policy." (August 12, 1945,
Department
of State Bulletin. )

In another report written by the same authors and also by Michael Ratner, President of the Center for Constitutional Rights, New York, and Jules Lobel, Professor of
Law at the University of Pittsburgh entitled "The United
Nations Charter and the Use of Force Against Iraq," the
authors note that:

"Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or
imminent armed attack: and when the Security Council has directed
or authorized use of force to maintain or restore international
peace and security. Neither of those circumstances now exists.
Absent one of them, U.S. use of force against Iraq is unlawful."

The authors were specifically referring to Article 51 of the UN Charter on the right to self-defense. Nothing that Iraq has done would call that provision into effect.
The report also states that:

"There is no basis in international law for dramatically expanding the concept of self-defense, as advocated in the Bush Administration's September, 2002 "National
Security Strategy" to authorize "preemptive"--really
preventive--strikes against states based on potential threats
arising from possession or development of chemical, biological,
or nuclear weapons and links to terrorism. Such an expansion
would destabilize the present system of UN Charter restraints
on the use of force. Further, there is no claim or publicly disclosed
evidence that Iraq is supplying weapons of mass destruction to
terrorist.

The Bush administration's reliance on the need for "regime change" in Iraq as a basis for use of force is barred by Article 2(4) of the UN Charter, which
prohibits "the threat or use of force against the territorial
integrity or political independence of any state." Thus
the rationales being given to the world, the American public,
and the armed forces are illegal on their face. (For a copy of
this report see www.lcnp.org/global/iraqstatement3.htm)

It is important to note that none of the authors cited thus far or to be cited have any support for Saddam Hussein or the Government of Iraq whatsoever. They and
others who do not support an illegal war in Iraq believe that
government of Saddam Hussein is corrupt, vile, and contemptible.
So is the leadership and governments of many of our "allies,"
such as Saudi Arabia and Pakistan-governments that the United
States may very well attack within the next decade. It is important
to remember that Saddam Hussein was an important "ally"
during the 1980s and that many of the weapons that may be faced
by our armed forces will bear a "Made in the USA" label.
The issue here is not the "evil' of Saddam Hussein, nor
the international community doing nothing, but an illegal march
to war by the Bush administration.

Even former House Majority Leader Dick Armey, a very conservative Republican from Texas, has warned that an "unprovoked attack against Iraq would violate international
law and undermine world support for President Bush's goal of
ousting Saddam Hussein." Armey explicitly states "If
we try to act against Saddam Hussein, as obnoxious as he is,
without proper provocation, we will not have the support of other
nation states who might do so. I don't believe that America will
justifiably make an unprovoked attack on another nation. It would
not be consistent with what we have been as a nation or what
we should be as a nation." (Chicago
Tribune, August 9, 2002, available at

Other articles demonstrating the illegality of this war can be found at here.

In addition to the violations of international laws, which have been incorporated into U.S. law, the impending attack on Iraq is a direct violation of national law as Bush
claims that he has the authority to decide whether the U.S. will
go to war or not. The U.S. Constitution is very explicit on this
point. Only the Congress has the authority to declare war, Article
1, section 8, Par. 11. Congress does not have the right to give
that power away, or to delegate that power to the president or
anyone else. The President as the "Commander in Chief"
(Article 2, section 2, Par. 1) can command the armed forces in
times of peace and war, but he does not have the authority to
declare the war or determine if that war is to occur, especially
if he is engaged in illegal conduct in violation of the Constitution
itself or his oath of office. The Constitution spells out very
clearly the responsibility of the President and his oath, "I
do solemnly swear (or affirm) that I will faithfully execute
the office of President of the United States, and will to the
best of my ability, preserve, protect and defend the Constitution
of the United States." (Article 2, section 2, Par. 8). The
President also has the primary duty to make sure "that the
laws be faithfully executed," (Article 2, section 3).

The vaguely worded resolution passed by the Congress in October was both illegal and an act of cowardice, as noted by Senator Robert Byrd of West Virginia. Byrd's remarks
were made on the floor of the Senate on October 3, 2002. In part
he said:

"The resolution before us today is not only a product of haste; it is also a product of presidential hubris. This resolution is breathtaking in its scope. It redefines
the nature of defense, and reinterprets the Constitution to suit
the will of the Executive Branch. It would give the President
blanket authority to launch a unilateral preemptive attack on
a sovereign nation that is perceived to be a threat to the United
States. This is an unprecedented and unfounded interpretation
of the President's authority under the Constitution, not to mention
the fact that it stands the charter of the United Nations on
its head."

The full texts of his remarks are well worth reading, not only on the illegality of the war but also the illegality of Congress in abandoning
its duty under the Constitution..