Again, military tribunals are up against the Nuremberg principles — refuse to obey orders to commit war crimes. Again, they prefer to throw the book at an officer to make an example, rather than rise to the challenge.
Watada – Iraq
First Lieutenant Lt. Ehren Watada, from Hawaii, publicly criticized Bush and called the Iraq conflict illegal, refusing to accompany his Stryker brigade in June. He will be court-martialed next month in Fort Lewis, WA, for missing a troop movement and conduct unbecoming an officer.
A military judge has ruled that Watada’s “illegal war” defense is a political question outside the authority of a military court to consider.
Watada’s lawyer said the ruling guaranteed a conviction on the charge of missing a troop movement and would make it hard to defend Watada against four charges of conduct unbecoming an officer, based on the officer’s public statements.
Levy – Vietnam
In the Vietnam era, among soldiers of conscience the most prominent was Capt. Howard Brett Levy, M.D. This is his story.
Upon completion of his medical training in Brooklyn, dermatologist Howard Levy was driven by the draft into the Army while Vietnam was escalating. He was sent to Fort Jackson, SC, where he ran a clinic. While there, he helped out in neighboring counties in the Black voter registration drive.
The Yankee’s voter-registration activities angered white Southerners in the Army. He was flagged.
At some point the Army assigned some Green Beret guys to me and I was supposed to train them in some aspect of dermatology. I did that for a number of months… The more I got to know them, the more upsetting some of their stories became. … I said, “I don’t really want you in the clinic, so let’s not make a big fuss about it, but I want you to leave.” And they did. Each month a new guy would come and I’d give him the same spiel. That went on for a number of months.
It violated Dr. Levy’s medical ethics to train soldiers to use medicine as another propaganda tool, a reward for friendliness from Vietnamese villagers.
That strikes me as illegitimate because it can be taken away as easily as it can be given.
More on the ethical dilemmas of medical personnel in the military here.
Charged
In 1966, when he had only another two or three months in the Army, he was charged with (1) promoting “disloyalty and disaffection” among soldiers — for encouraging Black soldiers to refuse to serve in Vietnam because it was a racist war, and (2) for refusing to obey a written order to teach dermatology to Green Berets.
Court Martial – Nuremberg Rule
Presiding Law Officer, Col. Earl Brown (a former dean of Columbia Law who died in 2004) opened another possible exit:
Now the defense has intimated that special forces aidmen are being used in Vietnam in a way contrary to medical ethics. My research on the subject discloses that perhaps the Nuremberg Trials and the various post war treaties of the United States have evolved a rule that a soldier must disobey an order demanding that he commit war crimes, or genocide, or something to that nature.
The disobedience charge would be dropped if Levy could prove that by obeying the order to teach dermatology to Special Forces, he would be aiding in the commission of atrocities.
The medical ethics and Nuremberg principle defenses attracted reporters from 38 news organizations to Fort Jackson. Time reported an array of sympathetic doctors testified in his support, such as Benjamin Spock. Capt. Levy’s defense counsel, including ACLU luminary Charles Morgan, Jr., then director of the ACLU’s Southern Regional Office, were given one extra day for the Nuremberg-related defense. In a hearing before the presiding law officer alone, they offered the testimony of three witnesses, a list of thirty-eight others available, as well as 4,000 articles describing war crimes in Vietnam. A brief was submitted from noted international law professors.
The presiding law officer drew back, simply sweeping aside the defense. He said there was no evidence the Special Forces would use medical training in crimes against humanity.
Capt. Levy was found guilty in June 1967 and sentenced to three years hard labor in Leavenworth. In two months, veterans and civilians marched in New York to demand Levy’s release.
On his fourth try, in August, 1969, with two weeks before the expiration of his [amended] sentence Justice Douglas granted him bail of $1,000. By November, 1969, Levy was participating in an anti-war “conference” at a coffee-house in Killeen called the Oleo Strut, which Fort Hood GI’s had turned into an anti-war headquarters for what was then called the GI Movement.
U.S. Supreme Court Opinion
Capt. Levy’s appeals took time. In June, 1974, shortly before the end of the conflict in Vietnam, the U.S. Supreme Court issued its opinion in Parker v. Levy — another of Rehnquist’s shameful outcome-driven numbers. Not surprisingly, the Court upheld the validity of the UCMJ and of Levy’s court martial conviction. Of course, by then, Levy was long gone from Leavenworth.
Justices Stewart, Douglas, and Brennan dissented angrily, arguing that the UCMJ general articles, under which Levy had been convicted, were so meaningless that they should not be used to send anyone to prison. They found no disloyalty in Levy’s opposition to the war, a “viewpoint shared by many American citizens.”
The Nuremberg principles were not even considered.
Fortunately, Dr. Levy survived Leavenworth and retained his devotion to service of the poor. In 1972 he was awarded the Ethical Humanist Award by the New York Society for Ethical Culture (in 1998 the award went to Senators Feingold and McCain for their finance campaign reform commitment). Today, Dr. Levy is Associate Professor of Clinical Dermatology at the Weill Cornell Medical College in New York City. He practices in the Bronx at the Lincoln Medical and Mental Health Center.
Today, it’s another court martial, another defense rooted in Nuremberg, another presiding law officer guaranteeing conviction with a pre-trial ruling limiting evidence. Deja vu. Stopping a war ain’t easy.