Testimony of Professor of International Law
Francis A. Boyle <FBoyle@Law.UIUC.edu>, of the University of Illinois,
in the case of United States vs. Lt. Ehren K. Watada.

Lt. Colonel Keith:  Okay. Mr. Seitz, the trial counselor has completed their witness list and has shown us their video footage for my consideration.  Are you prepared at this time to call your first witness?

Mr. Seitz:  Yes.  At this time, we'll call Professor Francis Boyle.

Q.   Prior to today, have you ever testified in any other judicial proceedings?

Francis A. Boyle (FAB):  Well, in terms of military proceedings, the court-martial proceedings of Marine Corps Corporal Jeff Paterson; then Captain Dr. Yolanda Huet-Vaughn, the Army; Captain Lawrence Rockwood, 10th Mountain Division; Staff Sergeant Camillo Mejia.  And then I testified many times in state and federal court, and also in foreign countries.

Q:   And have you on those occasions been qualified as an expert witness?

FAB:  Yes.  In international law and especially the laws of war.  The Field Manual 27-10, the man who drafted this for the United States Army, Professor Richard R. Baxter, was my teacher on the laws of war at Harvard Law School.  And I was his top student while I was there.

Q:   Are you knowledgeable about the United States' obligations under international law?

FAB:  Yes.  I've studied and written about them repeatedly during the last 28 years as a professor.

Q:   And in what manner does international law determine how and when the United States may wage war against another country?

FAB:  Well, Mr. Seitz, it's not just international law, it's the U.S. Army Field Manual 27-10.  Professor Baxter, who drafted this for the Army, incorporated international law directly into 27-10.  And all the rules are here.  I'm not going to go through them all.

But, basically, as drafted by Professor Baxter, 27-10 includes the Hague Conventions of 1899 and 1907, the Kellogg-Briand Peace Pact of 1928, the United Nations Charter, the Nuremberg Charter, Judgment and Principles, as well as the Tokyo War Crimes Tribunals.  Again, this was published by the Army as of 1956.  It was supplemented once.  But it is still valid and binding on troops in the field, including Lieutenant Watada.

Q:  What kinds of requirements must be met before  the United States can enter into a war?

FAB:  Well, again, the Law of Land Warfare does have a fairly extensive section on it.  But there would be two basic requirements, to boil it down in a nutshell and not get into all of it, relevant here.

One, warfare would have to be authorized by the United States Congress, pursuant to the War Powers Clause of the Constitution.

And then, secondly, unless the United States itself is attacked militarily, or its troops, it would have to be authorized by the United Nations Security Council.

Otherwise, aggressive warfare would be a Nuremberg crime against peace.  And that is stated quite clearly in the Law of Land Warfare. ... So what Professor Baxter did in the Law of Land Warfare for the Army, he simply incorporated the Nuremberg Charter and Principles directly into the Law of Land Warfare 27-10, including its notion of a crime against peace.  And you can read it right in there.  It is clearly listed as an international crime.

Q:   Did the United States comply with the appropriate procedures to obtain authorization before it invaded Iraq in 2003?

Captain Kuecker:  Colonel Keith, just for the record, at this point, I don't think any of this testimony would be relevant to the actual charges against Lieutenant Watada.  It's a nonjusticiable question, the question of whether to employ forces, based on a ruling that the witness was a witness to in Huet-Vaughn.  The Court clearly said that it's a political question whether to employ troops and is nonjusticiable in this forum.

Also, being ordered to go to Iraq in the year 2006 is a separate issue as opposed to going after Iraq is a sovereign country, is a separate issue as opposed to what did or did not happen in 2003.

Mr. Seitz:  We can certainly argue the relevance if you want to.  I understand there's an objection being made.  Given the nature of these charges, particularly the missing movement charge, an order was given to a soldier to engage in some conduct, to participate in an action which could subject him to sanctions under any of the authorities which we've provided you exhibits of, or to which Professor Boyle has alluded.  Then that individual has not only the right, but an obligation to question those orders and to determine for himself or herself whether, in carrying out those orders, he or she would be compelled to do something which is a violation of law, not just international law, but international law as incorporated, as Professor Boyle has indicated, into domestic law and into rules of engagement for the United States Army.

So it isn't as simple as saying that just because you're given an order, that you have to abide by it.  There is an obligation which is legally recognized at various different levels -- and we've given you some authorities for that -- which requires soldiers to make that determination for themselves.  And that really is the relevance.

In addition, in this case, we have a number of statements which you've seen which are attributed to Lieutenant Watada which are alleged to be contemptuous or disloyal or disrespectful.  It's our contention and certainly will be our contention at trial that those statements, if true, and if accurate commentaries as to what took place with respect to this particular war, cannot be punishable.  They are absolutely protected.  And they constitute political commentary, which is absolutely protected, because, in fact, among other reasons, they are true.  And so, for that purpose, we seek to offer evidence to demonstrate that what Lieutenant Watada had to say about the war in Iraq was not contemptuous, it was not disloyal.  It was, in fact, an accurate commentary on the history of how this war began and how it's evolved.

And to say that we're in a different position in 2006 than we were in 2003 is also an interesting issue we'd be happy to join at trial with counsel.  In our view, the situation is far more serious, worse, knowing now what we know today than what we knew back in 2003.

Lt. Colonel Keith:  Okay.  Continue, please.

Q:  So, Professor Boyle, my last question to you was, basically, in connection with the United States invasion of Iraq in 2003, did the United States go through the proper processes and meet its obligations before it engaged in that kind of military action?

FAB:  Unfortunately, the Bush administration did not.  There was no authorization for the United Nations Security Council for the United States to wage war against Iraq.  And that made it a crime against peace, which is in paragraph 498 of the Field Manual.

"Any person, whether a member of the armed forces or a civilian, who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.  Such offenses in connection with war comprise ... crimes against peace."

Professor Baxter incorporated that directly out of the Nuremberg Charter, Judgment and Principles.

Second, with respect to Congressional authorization, there was a War Powers Resolution adopted by Congress pursuant to the War Powers Resolution.  But, unfortunately, the Bush administration procured that authorization from Congress by means of fraud.  First, they lied to Congress that Iraq had weapons of mass destruction.  And, second, they lied to Congress that Iraq had connections with the terrible tragedy of September 11th.  Neither were true at the time, and this has been proven by everything in the public record since then.

This, in my opinion, as a professor that taught criminal law, constitutes a conspiracy to defraud the United States government, which is a felony.

Q:  Does the fact that Congress was induced to authorize the military exercise which led to the invasion of Iraq, does that act as a substitute for obtaining consent or approval from the United Nations?

FAB:  No.  There are two sources of approval you have to get:  Both the Security Council and Congress.  Congress has no authority to authorize a crime against peace or war of aggression.

And here I would compare what the Bush, Junior, administration, did to the Bush, Senior, administration.  The Bush, Senior, administration first obtained authorization from the Security Council, and then, second, obtained authorization from the United States Congress, to enforce that Security Council resolution.

The Bush, Junior, administration tried to get authorization from the Security Council and failed.  I regret to say the President did not even follow his father's precedent.

Q:  You heard a little discussion a minute ago about events that have ensued since 2003, and here we are in 2006.  Do you have any opinions with respect to the conduct of the war which would raise issues pertaining to whether or not the United States is conducting that war in conformity with its obligations under international and domestic law?

FAB:  Right.  Well, under the Field Manual, the same paragraph 498, also using the same language that I won't bother to repeat, says:  "Such offenses in connection with war comprise, B, crimes against humanity, and, C, war crimes." Those are the three classic Nuremberg crimes, again, which Professor Baxter directly incorporated into Field Manual 27-10.

And certainly, based on my analysis of the situation since the war started, regretfully, we have seen war crimes committed in Iraq, for example, the Abu Ghraib torture scandal, which, in my opinion, the primary responsibility for this goes to the very top of the chain of command.  This was authorized certainly by the Secretary of Defense and straight on down through the top.  And, yet, so far, the only soldiers to have been prosecuted are lower-level individuals.  And the chain of command, from Lieutenant General Sanchez straight on up, has escaped any responsibility at all.

We also have the use of cluster bombs in civilian areas.  If you were to use a cluster bomb on a tank formation or troops or something like that, in my opinion, there really is nothing illegal about that.  But if you use a cluster bomb in a city with substantial civilian presence, I think that does not comply with the laws of war.

There's also the use of depleted uranium, which violates the Geneva Protocol of 1925, which is also found in the Field Manual.  It's a war crime.  And the depleted uranium is not only poisoning Iraqis, it is poisoning our own troops.

And this goes back, actually, to Gulf War I.  There is extensive documentation on this by Major Doug Rokke, who undertook the DU investigation for the Pentagon in Gulf War I and, a very conscientious soldier, contracted Gulf War Syndrome himself.

Shock and awe to start the war -- of course, that was the Air Force, not the Army -- again, a war crime.  The wanton devastation of a city, town, or village is a Nuremberg war crime.

So, there are others that we can talk about, but I think those are the four major categories I would look at.  You have others: murders, rapes, et cetera.  You know, it seems to me the military authorities are attempting to deal with those.

But the top of the chain of command either has authorized or has certainly not dealt with those other major crimes that I see.

Q:  You have mentioned several times the Nuremberg Judgment.  How is that applicable ... how does that become enforceable in the context in which we're dealing with soldiers, and Lieutenant Watada in particular, in this period of time?

FAB:  Yes.  The United States government set up the Nuremberg Tribunal.  It was our idea.

The Nuremberg Charter is an executive agreement concluded by the President in his authority as Commander in Chief of U.S. forces.  You can find it in statutes at large.

The Nuremberg Judgment is reported in Federal Rules Decisions.  It is a valid, binding decision that applies in U.S. federal courts.  It's not a foreign decision, but it is a decision that flows from the President's authority as Commander in Chief.

And, finally, of course, Judge Baxter incorporated the principles of the Nuremberg Charter, Judgment, and Principles right here in Field Manual 27-10.  He did not attempt to write a scholarly treatise or anything, but he distilled the essence of the Nuremberg Charter, Judgment, and Principles as well as the Tokyo proceedings, and put them in 27-10, which is still valid and binding in the field 50 years later, today.  And it remains substantially the same except for one revision that has not changed any of the principles I'm discussing here today.

Q:  And also, similarly, with respect to the Geneva conventions, which has been mentioned at various different times, how do the Geneva conventions become applicable to the factual situation in which we find ourselves in this case?

FAB:  Yes, the four Geneva conventions of 1949, are treaties to which the Senate has given its advice and consent.  They are the supreme law of the land under Article VI of the United States Constitution.  And, once again, they are incorporated in haec verba, in those words precisely, right here in the Law of Land Warfare, where Judge Baxter put them, with some commentary, where necessary, where the exact words needed to be supplemented by further practice.  But they are right there in the Field Manual.  You can read the references and citations.

So, again, it's made very clear that all members of United States armed forces, especially the Army, is bound by the Geneva conventions.

Q:  And are you aware of any recent decisions in which the United States Supreme Court has emphasized the applicability of the Geneva conventions?

FAB:  Yes.  United States versus Hamdan, that just came down this summer.  As you know, the President is not a lawyer.  But, unfortunately, he got very terrible, I would say criminal, legal advice from his White House Counsel, Alberto Gonzales at that time, and his Attorney General, John Ashcroft -- Gonzales is now the new Attorney General -- that the Geneva conventions did not apply to his so-called war on terrorism.

This advice that he received from these political appointees directly contradicted the advice that was given to him by the professional military lawyers, the JAG lawyers, at the highest level, who were all of the position that the Geneva conventions must be applied by United States armed forces.  It also directly contradicted advice that the President was given by the professional international lawyers at the State Department that the Geneva conventions should apply.

Indeed, then Secretary of State Colin Powell, who, as you know, had been Chairman of the Joint Chiefs of Staff, sent a memo directly to the President, argued to the President that the Geneva conventions should be applied, must be applied.

Unfortunately, he listened to these political appointees, and we had the torture scandal at Guantanamo, which, due to the major general there, acting pursuant to orders of Secretary of Defense Rumsfeld, then went to Iraq to "Gitmo-ize" Iraq.  And then, unfortunately, we have the torture scandal in Iraq.

It is my personal opinion that if these orders had not been given by Secretary of Defense and presumably with the approval of the President, none of this scandal would have happened.

The Army's current manual for interrogation of prisoners of war is impeccable.  It was drawn up by professional JAG Corps lawyers.  I have reviewed it.  It's perfect.  There's nothing wrong with it.  And if not for these orders that were given, the Army, following standard operating procedure, would have applied the currently existing manual and none of this gross, widespread torture would have happened.

Obviously, in wartime, abuses happen, but it would have been sporadic and I think immediately repressed.  But here we had wholesale torture.  And that was Major General Miller, who was in Guantanimo, then went to Iraq, and with the consent of Lieutenant General Sanchez, proceeded to "Gitmo-ize," as he put it, Iraq.  And that was the origin of  the torture scandal in Iraq.

Torture is a grave breach of the Geneva conventions.  It's a serious war crime.  Moreover, the International Committee of the Red Cross that has supervisory jurisdiction over the Geneva conventions determined that the torture, since it appeared to be widespread and systematic in Guantanamo, Iraq, and, as you know, it also unfortunately, gravitated to Afghanistan, the Gitmo practices, since it was widespread and systematic, constituted a crime against humanity.  When you have war crimes that are widespread or systematic, they become more serious.  They become crimes against humanity.

And that, too, is found in paragraph 498 of the Field Manual, paragraph B.  Such offenses in connection with war comprise crimes against humanity.

Again, Professor Baxter took that directly from the Nuremberg Charter, Judgment and Principles.

Lt. Colonel Keith:  Let me interrupt you for a second.  Because I'm struggling with the connection between what we've just discussed in terms of Geneva convention and Guantanimo and those war crimes that you have discussed, that you have alleged have occurred and how that relates to Lieutenant Watada and his refusal to deploy.

FAB:  Colonel, let me do clarify the chain of events here.

That is, before the terrible tragedy of September 11, the Army had an interrogation manual which I had read and reviewed and was impeccable.  There was no problems at all.  It was drawn up by professional JAG Corps lawyers at the highest level, everything you would expect from JAG Corps lawyers, and no problems at all.

Then, acting pursuant to the advice of Alberto Gonzales and John Ashcroft, and rejecting the advice of Colin Powell and the JAG Corps lawyers, the President determined not to apply the Geneva conventions to al-Qaeda or Taliban.  That decision, then, not to apply the Geneva conventions was implemented on Guantanimo under Major General Miller.

Then Secretary of Defense Rumsfeld and his deputies instructed General Miller to go to Iraq, and, as he put it, to "Gitmo-ize" Iraq, to apply the same type of abusive and violative procedures in Iraq, that were applied in Guantanimo.

Again, I think if not for these orders, the Army would have followed  the basic interrogation manual and I don't believe any of these abuses would have occurred.  There would have been abuses, but not widespread, systematic, as we have seen in -- regretfully, in the news media coming out of Abu Ghraib.

Lt. Colonel Keith:  But that chain of events would have changed nothing for Lieutenant Watada in his decision not to deploy.  I mean, is that what I'm -- is that what I understand?

FAB:  Well, in the charge on missing movement, it says (reading):  "Any person subject to this chapter who, through neglect or design, misses the movement of a ship, aircraft, or movement with which he is required in the course of duty to move shall be punished as a court-martial may direct."

So it raises the question, what is the course of Lieutenant Watada's duty under these circumstances of widespread crimes against peace, crimes against humanity, and war crimes?  And, in any event, under Mullaney versus Wilbur, the government must prove beyond a reasonable doubt that Lieutenant Watada had a duty to participate in this war that is based on crimes against peace, war crimes, and crimes against humanity.

Lt. Colonel Keith:  Let me ask you one question, and that's, if we're discussing, for sake of argument, a declared war that's been declared legally through Congress and through all of those provisions that you discussed with me earlier, is it still possible, then, to have war crimes occur during those legal wars?

FAB:  Yes. That is correct, Colonel.

Lt. Colonel Keith:  So the fact that there are war crimes, in your opinion, occurring in this war, what relevance does that have to Lieutenant Watada's decision not to deploy, and the fact that, from your perspective, this war is illegal and unjust to begin with?

In other words, I'm trying to distill your argument to the basic pieces of it.  Which is, I believe, the fact that you believe that this war is unjust or illegal in that, from the beginning, there was no authorization legally to enter into it.  All of the remaining arguments in terms of war crimes, what happened at Abu Ghraib, what's been going on in Guantanimo, et cetera, are really ancillary to the fact that you're saying this war was illegal to begin it; correct?  I mean, is there any more to it?

FAB:  They're cumulative, all three grounds.  That is, under the Nuremberg Charter, Judgment, and Principles, a soldier has a right to absent himself or herself from committing international crimes.  Indeed, under certain circumstances, you have an obligation.

That was decided at the Tokyo tribunal, in dealing with high-level military officials and government officials.  But it did establish that those in command, not civilians, but those in command, have a right, if not a duty, to absent themselves from committing international crimes, meaning crimes against peace, war crimes, and crimes against humanity.

Lt. Colonel Keith:  In this circumstance, if we argue that, from your perspective, the war is illegal, does the addition of war crimes or the addition of further crimes that were conducted in the engagements of this war make it -- add anything to Lieutenant Watada's decision?

FAB:  Definitely, yes.

Lt. Colonel Keith:  In other words, does it make it worse for him to have made that decision not to go?  Does it make it easier for him to have made that decision not to go?

FAB:  I think it would make it easier, Colonel, in the sense that he would be commanding troops in the field, and he would have a special obligation as a commander to make sure that none of his troops committed war crimes.  And if they did commit war crimes, in this situation of pervasive, I would say, regretfully, war crimes going on here, he could be held criminally accountable for war crimes committed by his own troops.

That, too, is found in the Law of Land Warfare.

Lt. Colonel Keith:  But that is true for every circumstance of war when in combat; correct?

FAB:  Any commander, yes.

Lt. Colonel Keith:  Regardless of the war, he is held responsible --

FAB:  That is correct.

Lt. Colonel Keith: -- for the commitment of his troops in their -- in their execution of their duties; correct?

FAB:  That is correct.  And, unfortunately, if -- in a situation like this war, where you have, I would say, pervasive war crimes, it really raises the question of the right, if not the obligation, of Lieutenant Watada to say, "I don't want to participate in this."

And the authority for that really goes to the Tokyo War Crimes Tribunal, where that tribunal was set up by General MacArthur.  And we tried the Japanese war criminals ourselves.  It was not like Nuremberg.  That rule, that commanders, both military and civilian, have an obligation to prevent war crimes.

Lt. Colonel Keith:  But, again, I'm trying to understand your argument.  You mentioned "pervasive war crimes" several times in terms of the prosecution of this war.  Those --  those war crimes are independent actions, are they not? Or are you indicating that just the fact that had Lieutenant Watada decided to deploy to this conflict, anything he did during that conflict would be considered a war crime?  Is that the line of reasoning I understand you to be saying?

FAB:  No, I'm not saying anything he did.  The -- the problem here --

Lt. Colonel Keith:  So is it possible for him to have deployed and not committed a war crime in this circumstance?

FAB:  Well, the problem here is that we have people at the very top of the chain of command, up to and including the Secretary of Defense, authorizing war crimes.  So it would be very difficult, if not impossible, for Lieutenant Watada not to be committing war crimes.

Lt. Colonel Keith:  Would it be possible for him to have deployed in this circumstance and not commit war crimes?

FAB:  Under the circumstances of this war, if he had deployed, he would be facilitating a Nuremberg crime against peace for sure.

Lt. Colonel Keith:  So just in the -- just in the sheer fact that he deployed, he would be committing a war crime?

FAB:  He would be facilitating a Nuremberg crime against peace.

Lt. Colonel Keith:  So currently, everyone in theater, by this argument, by this reasoning, if you will, everyone in theater, in your opinion, who has deployed in support of this operation has committed a war crime just by the sheer nature of their deployment?

FAB:  No, I'm not saying that.

Lt. Colonel Keith:  Then I --

FAB:  It depends on the extent of your knowledge, judgment, and experience.

Lt. Colonel Keith:  Okay.

FAB:  And in the case of Lieutenant Watada, as I understand it -- I've only talked to him once before coming here -- he made a very extensive study of the facts and the law involved here.  And the more you know and the higher your rank, the more your responsibility.

So I'm not saying that everyone over there at all is.  Again, we're dealing with questions of criminal intent here.  They have to be proven beyond a  reasonable doubt.  And I'm certainly not saying everyone over there is facilitating a Nuremberg crime against peace.

But certainly that's the way Lieutenant Watada saw it, based on his knowledge, judgment, experience, and study.  And I agree with his conclusions.

But, again, it goes to his intent and his knowledge.

Lt. Colonel Keith:  So in that line, then, it is possible for a soldier to have deployed in this conflict and not commit a war crime?

FAB:  It is possible if that soldier had not studied anything at all about the origins of the law.

Lt. Colonel Keith:  Well, if they were ignorant of the origins of the conflict, in your opinion, is it possible that they could have deployed, could be there currently, and not have committed a war crime?

FAB:  If they had not studied any of the law or any of the facts and simply showed up, I'm not saying they are war criminals themselves, no.

Again, I still practice criminal law.  I'm not saying any member here of U.S. armed forces.  Nuremberg established also, there is no such principle as collective guilt.  Every question of guilt or innocence under war crimes is individual.  So each soldier would have to be looked at in accordance with his knowledge, judgment, and experience about what was going on.

I suspect that the vast majority of U.S. armed forces might conclude that there are no problems with deployment.  I don't know.  I haven't talked to them.

But certainly in the case of Lieutenant Watada, he is an officer.  He had an obligation to inform himself.  He was commanding, was going to be commanding troops in the field.  He did study.  He did research the facts and the law.  And he reached these conclusions.  And he is held accountable to what he knows.

And, again, paragraph 501 of the Field Manual makes that clear.

(Reading):

"Such responsibility arises directly when acts in question have been committed.  The commander is also responsible if he has actual knowledge -- or should have knowledge through reports received by him or through other means -- that troops or other persons subject to his control are about to commit or have committed a  war crime," et cetera, et cetera.

So, clearly, in this case, Lieutenant Watada had knowledge.  He had gone out, he had done his job as a conscientious officer, he had studied the facts and the law, and he had reached the conclusions that he did.

There might be other officers who haven't  engaged in the type of study that Lieutenant Watada did.  I'm not expressing any opinion about that.

Lt. Colonel Keith:  And had they not, would they therefore not be guilty of war crimes?

FAB:  Well, they're not here and I'm not expressing an opinion about them one way or the other.

But certainly in the case of Lieutenant Watada, he had studied.  And so his knowledge is higher.  And as a commander, you're charged with the knowledge that you have.

Lt. Colonel Keith:  But in the case of another lieutenant, would it be possible that they would, then, therefore be absolved of guilt for a war crime had they not studied and done the things that Lieutenant Watada had done?

FAB:  Unfortunately, that wasn't what  happened with General Yamashita in World War II.

General Yamashita was the commandant of the Philippines.  And troops subject to his control committed atrocities against United States armed forces.  There was no evidence that he had authorized it, or approved it, or anything else.  Indeed, apparently, he had issued instructions that this shouldn't happen.  Nevertheless, he was tried by a U.S. military tribunal and sentenced to death.

And he petitioned for a writ of certiorari to the United States Supreme Court.  And the Supreme Court denied the writ of certiorari on the grounds that commanders must know -- if a commander knows or should know that troops or others subject to his control either commit or are about to commit war crimes and fail to do anything about it, they are responsible.

And General Yamashita was hanged.

And that principle of law was directly incorporated into U.S. Field Manual 27-10 by Professor Baxter.

Mr. Seitz:  I have no further questions of this witness.  Thank you.

Lt. Colonel Keith:  Trial counsel?

Cross-Examination by Captain Kuecker:

Q:  You commented on your previous proceedings, the Huet-Vaughn case, the Paterson case, and Mejia.

Was your role the same in each one of those? Can you describe briefly what your role was as an expert witness.

FAB:   Yeah.  I was an expert witness, and I was not paid.  And I have not been paid for my appearance here today.

Q:  Did you -- Was your focus the same as it is here today, or did you comment on other aspects?  What was the focus of your testimony?

FAB:   Well, I covered much of the same ground here today in Huet-Vaughn, Paterson.

In the court-martial of Captain Rockwood at Fort Drum, we dealt primarily with the laws of belligerent occupation that were applicable in Haiti.  So that was somewhat more technical -- it didn't get into the origins of the war of Haiti.  We dealt with the laws of belligerent occupation.

Q:  But all of them were with regard to criminal court-martial procedures --

FAB:  Yes.

Q:  You say the -- the current mission in Iraq is illegal.

Why hasn't Congress or some other agent, body, taken --  Why does Congress continue to fund it if it's  illegal?

FAB:   Actually, in today's "New York Times," Senator Warner, the chair of the Senate Armed Services Committee and a Republican, said that, in his opinion, Congress is going to have to reexamine the War Powers Resolution authorization it has given.

Q:  But there is an authorization right now on the table that Congress is operating under?

FAB:  Right.  And I've already pointed out, and here I agree with Lieutenant Watada, that was procured by fraud.  The Bush administration lied about nonexistent weapons of mass destruction in Iraq and lied about Iraq's nonexistent connection with Afghanistan and September 11th.

Q:  In spite of all that, Congress continues to fund the mission?

FAB:  Well, when you have troops in the field fighting and dying, of course you're going to pay for them.

Q:  Who in Congress is stating the same rationale as you are with regard to --

FAB:  Congressman John Conyers.  And I believe Mr. Seitz is or will introduce the report prepared by his staff.  He's the senior ranking member of the House Judiciary Committee.

And they have produced a comprehensive report.  I read the report, the first version, as of December.  I haven't read the current version.  It just came out last week.  I was on vacation.

And I've been consulting with Congressman Conyers' office on many of these points, and providing him advice and information.

Q:  And has -- have any bills gone in front of Congress with regard to that?

FAB:  I -- you know, I can't recall. 

Q:  How about in the courts, has this issue been raised and had any success in the courts?  Federal court?

FAB:   Not that I'm aware of right now, no.

Q:  And with regard to the Huet-Vaughn case that you testified in, isn't it true that the court there --  and that's the Court of Appeals for the armed forces -- stated that it's a nonjusticiable question whether to deploy troops or not, that's a political question,  not for the courts?

FAB:   I don't recall that, no.

The issue was --  In the Army Review Board, actually, they agreed with her civilian attorney position that she was denied due process of law.  And I was there.  I regret to say, it was -- it was sort of a kangaroo court proceeding.  Her defense was completely shut down.  And the Army Review Board did agree.

Then the Court of Military Appeals reversed on the grounds that, on their reading of the record, they felt she had been given due process of law.  There might  have been some ancillary comments on the rest of it.  But the real issue was, was she afforded due process of law at the court-martial proceedings.

Q:  From that case, Huet-Vaughn here, finally, to the extent that Captain Huet-Vaughn intended to contest the legality of the decision to employ military forces  to the Persian Gulf, the evidence was irrelevant, because it pertained to a nonjusticiable political  question, citing U.S. Supreme Court, Flast v. Cohen, political questions not justiciable by federal courts.  Another appellant court, the decision to -- whether to employ United States troops is not a judicial function.

It also goes on:

"We finally turn to the military judge's instruction that quitting one's unit because of  one's conscience, religion, personal philosophies, ethical or professional considerations is not a defense."

FAB:  Well, you know, finally, at the end of the day, that's what they ruled.  But the essence of it was whether or not she was afforded due process of law at the court-martial itself.  And her complete defense was totally shut down.  She was not afforded the opportunity to have any witnesses on her behalf on substantive issues.  I was on the stand for about 30 seconds, answered one question, and was thrown off by the military judge.  Now, if you think that's fair, I think you might be living in the wrong country.  But that's my opinion.

Q:  Lieutenant Watada getting on a plane and going to Iraq, that's facilitating a war crime, just that alone?

FAB:  If he went to Iraq to facilitate a Nuremberg crime against peace, yes.

Q:  Any -- any evidence that you have heard that he would be required to do that?

FAB:   To do what?

Q:  To facilitate a Nuremberg-type offense?

FAB:   Well, my understanding is that he was going to be commanding troops, that it was a Stryker Brigade here.

Q:   So anyone who deployed with a Stryker Brigade would be facilitating a war crime?

FAB:  I didn't say that at all.  But certainly that was the conclusion that Lieutenant Watada reached, based on his study of both the facts and the law.

Q:  And you said earlier that somebody who is well  read, has studied the origins of the conflict, who would deploy over there, that alone could be a facilitator or a war crime in itself, by being there?

FAB:  I didn't say that.  What I said was that based on his study of both the facts and the law, he concluded that he had a right to absent himself from committing a Nuremberg crime against peace.  And I agree with him.

Q:  Okay.  So, in his mind, he would have been  required to do a specific act over there that would have been a Nuremberg crime?

FAB:  The war itself is a crime against peace.  In addition, again, the Field Manual makes it clear there are three different types of crimes here: crimes against peace, crimes against humanity, and war crimes.

And my understanding -- again, I only spoke with Lieutenant Watada once -- was, the objection to deploying was not participating in a crime against peace.

Second was, again, you have a chain of command here at the highest levels who apparently have either authorized or approved pervasive war crimes.

Q:  Let me ask it this way, then.  I think I understand.

Let's take a hypothetical where Lieutenant Watada, based on his study of the conflict in Iraq, says, "No.  It's unlawful.  I can't go."

Me, on the other hand, I study, study the same works, and I come to a different conclusion.

Is it your position that the military should allow Lieutenant Watada to stay here and not deploy, whereas I would have to deploy, if we just came to different conclusions?

FAB:  The Nuremberg Judgment made it quite clear that where a soldier knows to a moral certainty, as he sees it, that an order is illegal, he has to disobey that order.

Q:  And that's subjective for each individual service member?

FAB:  Yes.  It’s subjective.

Q:  Good order and discipline is important for the military, of course.  Do you agree with that?  It's a hallmark condition of --

FAB:  Sure.  My -- my father, after Pearl Harbor, enlisted in the Marine Corps.  He invaded Saipan, Tinian, and Okinawa.

Q:   So Congress and the country as a whole has a vested interest in maintaining good order and discipline within the ranks of the military?

FAB:  Yes.

Q:  Based on your philosophy, where one soldier's subjective mind can say something's illegal, so that soldier doesn't go, you don't think that would affect the good order and discipline of a unit where --

FAB:  A soldier has an obligation to disobey illegal orders.  That's very clear from Winthrop and Little v. Barreme, decided by the United States Supreme Court.  And you'll find it in Field Manual 27-10.

Q:  With regard to the Nuremberg defense that you talked about with regard to the obligation to refuse an illegal order, doesn't that -- again, to Huet-Vaughn, doesn't that apply to individual acts committed in wartime?  It does not apply to government's decision to wage war?  It's directly from the case.

FAB:  That's not what the Field Manual provides. The Field Manual provides quite clearly that the decision to wage war itself must follow both Constitutional procedures in Congress and authorization from the Security Council when -- if the United States government itself is not attacked.

Now, if Iraq had actually attacked the United States militarily, that would be a different story.  But Iraq never attacked us.  We attacked Iraq.  And that made it a crime against peace under the Nuremberg Charter, Judgment, and Principles.

And Lieutenant Watada, then, was correct to say, "I don't want to have anything to do with a crime against peace."

Q:  Isn't there a legal argument where the U.N. resolution from back in 1990 was still ongoing?

FAB:  Even the Bush administration didn't accept that argument.  And that is why, finally, they tried to get a second Security Council resolution at the beginning of 2003, and failed.

Q:  Isn't it -- isn't it true that Iraq was in breach, material breach, and there even was a U.N. resolution on that, they were in material breach of that initial resolution?

FAB:  That was for the Security Council to decide, not any state.

They did not authorize the use of military force in that resolution.

If you study Security Council resolutions  authorizing use of force -- which, by the way, President Bush, Senior, did get.  I ask the question, if President Bush, Senior, got authorization for war from the Security Council, why didn't President Bush, Junior?

And the answer is, he couldn't get it.  The President Bush, Senior, resolution authorized the U.S. government to use all necessary means to enforce that -- to expel Iraq from Kuwait.

The Bush, Junior, administration tried to get a similar authorization, and failed.  They tried twice, and failed.

Q:  That initial resolution said, "And to restore international peace and security to the area."

FAB:  It -- that resolution was limited to expelling Iraq from Kuwait, which the Bush, Senior, administration did.

And, indeed, at that point, the question was, under Bush, Senior, should the United States government go all the way to Baghdad and depose Saddam Hussein?  And President Bush, Senior, said publicly, "I did not have authorization from the Security Council to do that, and so I did not do it."

And Bush, Junior, did not have authorization, either, none.

Q:  But the 1990 resolution says, legally, he had -- though there might be a political reason not to at the time, in 1991 or whatever, but it was a political reason.  He had the legal basis for doing it based on that 1990 resolution?

FAB:  Well, he's contradicted by his own father. President Bush, Senior, specifically said that, "That Security Council resolution gave me no authority to send U.S. armed forces to Baghdad."

Q:  I just --

FAB:  It was limited.

Q:  I just read to you the authority.

FAB:  Right.  To expel Iraq from Kuwait.  That's it.

Q:  And to restore international peace and security to the area.

FAB:  Right.  With respect to the Iraqi invasion of Kuwait.

Captain Kuecker:  I have nothing further.  Thanks.

Lt. Colonel Keith:  Two quick questions, Professor.

One, who has the authority to declare this war illegal?

FAB:  Well, of course, the International Court of Justice could do so.

Lt. Colonel Keith:  Who in the United States has the authority?

FAB:  A United States federal court could do so as well.  Or the U.S. Supreme Court could do so as well.

Lt. Colonel Keith:  To declare the war illegal?

FAB:  Yes, they could.

Lt. Colonel Keith:  Had weapons of mass destruction existed and/or the tie to 9/11 been founded between Iraq and the 9/11 event, would that change your professional opinion on the conduct of this war and the legality of this war?

FAB:  No.  Because at the time in August of 2002 when the Bush, Junior, administration was making these allegations, I was involved in public debates and interviews, even with lawyers on the other side, pointing out, one, there were no weapons of mass destruction in Iraq, and anyone who had studied the situation knew that --

Lt. Colonel Keith:  I understand.  But I'm saying --

FAB: -- and, two --

Lt. Colonel Keith:  -- had there been --

FAB:  Well, there weren't.

Lt. Colonel Keith:  -- weapons of mass destruction.

FAB:  Well, that ­

Lt. Colonel Keith:  I'm asking, in your professional opinion --

FAB:  Well, there --

Lt. Colonel Keith:  -- had there been weapons of mass destruction and/or a tie to 9/11, would that change your opinion in terms of the prosecution of the war, in terms of the legality of the war?

FAB:  It would all go back to the authorization of the Security Council, which was not there, and also authorization by Congress.  And Congress, was lied to on both accounts, by weapons of mass destruction and by the tie-in to 9/11.

Lt. Colonel Keith:  Okay.

FAB:  And, by the way, those --

Lt. Colonel Keith:  Congress did authorize action, you allege --

FAB:  They ­

Lt. Colonel Keith:  -- with bad information.

FAB:  They were defrauded; right.

Lt. Colonel Keith:  Had 9/11 been tied to the Saddam Hussein regime and Congress authorized action, as they did, and a soldier such as Lieutenant Watada deployed in the early days of 1993 or the early -- early -- I'm sorry, not '97 -- 2003, excuse me --

FAB:  I understand your question; right.

Lt. Colonel Keith:  -- would that change -- would that change the prospect for you, in your mind --

FAB:  Right.  There was still --

Lt. Colonel Keith:  -- as a student of the law --

FAB:  There was still no authorization from the Security Council.

Lt. Colonel Keith:  Okay.

FAB:  Which made it a crime against peace.

And, again, compare what happened here with what President Bush, Senior, did, where he did get first authorization from the Security Council and then authorization from the United States Congress.

Lt. Colonel Keith:  No, I understand that.

So your point -- your perspective is still that even independent of that, if weapons of mass destruction had, in fact, been found or there had been a tie to 9/11, it still would be unlawful in that the U.N. hadn't resolved to do anything about it?

FAB:  The U.N. had refused twice to give President Bush, Junior, authorization to use military force against Iraq.  Twice.

He tried, and he failed twice.

Lt. Colonel Keith:  Okay.

Redirect Examination by Mr. Seitz:

Q:  First of all, if in fact there had been a tie-in between Iraq and the attack on the United States in 9/11, wouldn't that have justified the United States then, on grounds of self-defense, to have unilaterally attacked Iraq?

FAB:   Well, that's a far more complicated question.

Q:  No, I understand.

But I'm asking, I'm saying to you, again, hypothetically, if it had been shown that Iraq was involved in an attack on the United States, that would have been a sufficient basis for the United States, if it could demonstrate that, to take unilateral action on its own?

FAB:  The United States would have a right, under the Constitution and Article 51 of the U.N. Charter, to defend itself with necessary and proportionate means.

Q:  Okay.

And, secondly, if in fact there had been a determination that Iraq did have weapons of mass destruction that were threatening the United States and/or any other countries, in that situation, at least hypothetically, the United Nations might have been in a different position to act than what subsequently transpired; isn't that also true?

A.  Well, there it's useful to compare it to the Cuban Missile Crisis, where Cuba actually had weapons of mass destruction targeted on the United States, unlike Iraq.  And on missiles.

And President Kennedy refused the advice of his top advisors to attack Cuba.  And he also refused to invoke Article 51, because Cuba had not attacked the United States.

So if, under those terrible circumstances, myself having lived through the Cuban Missile Crisis and  remembering it quite well, President Kennedy did not attack Cuba, I don't understand what the legal basis was at all for President Bush, Junior, to have attacked Iraq, even if they had some weapons of mass destruction.  He should have gone to the Security Council, which he did twice, and gotten authorization, which he twice failed to do.

Q:  Now, going back to your last colloquy with Captain Kuecker, I want to just ask you, you would agree, a decision for an individual soldier under the legal authorities that you've cited is a subjective decision that has to be made individually based upon what that soldier knows?

That's what you said; correct?

FAB:  That is correct.  And that's true for all criminal law.

Q:  But that subjective decision which goes to intent and state of mind, that occurs within an objective factual situation such as the one we have here, where you have stated that there is a problem under international law with respect to the initiation of this war.  And within that objective context, Lieutenant Watada has decided that's something that he cannot participate in?

FAB:  That is correct as well.

Indeed, I -- I certainly wouldn't be here if I did not believe that the facts and the law back up what -- the conclusions that Lieutenant Watada, who is not a lawyer, reached of his own accord.

Q:  So, with respect to some other military action which has been properly authorized, if in that context some individual soldier subjectively decides for himself or herself not to participate, as Captain Kuecker correctly pointed out, that would be a problem for discipline and good order in the military, which could properly be prosecuted; isn't that fair to say?

FAB:  That's correct.

Q.  Thank you.