Amerasia Journal 33:3 (2007): 73-94

From Heart Mountain to : Lieutenant Watada and a Long Line of Resistance

Eric K. Yamamoto and Ashley Kaho’omino’aka Kaiao Obrey

The American people have to stand up. . .and if they are against what is happening. . .they have to be willing to sacrifice to stop it. It is our country.1 Prologue: History Repeats A historic day. Two generations of Japanese Americans. Key players in political struggles, separated by sixty years, meeting virtually. First Lieutenant Ehren Watada is a third-generation Japa- nese American who refused military orders to deploy to Iraq. He talks by video conference2 with second generation Japanese Americans Frank Emi and Yosh Kuromiya, leaders of the World War II Japanese American internee draft resistance. Watada is traversing their path of solitary protest. The setting is apt. The resisters speak from their homes, sharing a sense of family and cultural identity—bonds forged across time and space by race and moral conscience. An espe- cially appropriate meeting. For Watada, these men guide and inspire. For Emi and Kuromiya, Watada recalls the power and pain of resistance. In keeping with his 1940s leadership in the Heart Moun- tain, Wyoming internment camp, Emi guides the conversation. He counsels Watada about the stark difficulties of political re- sistance, as a father would counsel a son, sharing experiences, noting differences, yet finding common ground. They speak of two different wars in two dissimilar times. Yet the essence of the

Eric K. Yamamoto is Professor of Law, William S. Richardson School of Law, University of . Ashley Kaho’omino’aka Kaiao Obrey is a student at the William S. Rich- ardson School of Law, University of Hawaii.

73 74 Amerasia Journal 2007 cans in internment camps without charges or trial, or charges without camps internment in cans Ameri Japanese innocent 120,000 over of detention authorized Roosevelt Delano Franklin President fears, public to sponding munist Control Act, punishingsubversivesfortheirspeech. suspicionradicalism.of In addition, the government detained over 5,000 workers on mere strikes. labor domestic quell violently to Communism about da Scare,” AttorneyGeneral A.Mitchell Palmer deployed propagan morethan 2,000 war dissenters. prosecutionof the to leadingutterance” seditious ofprohibition “blanket a became It draft.military World againstits Warand I dissentersCongress’responseto was 1917 Espionageof TheAct review.judicial without civilians 13,000 about of imprisonment ham Lincoln suspended the writ of habeas corpus, resulting in the government.the of cism criti prohibited which Act, the and U.S., the to threat a deemed he that non-citizen any deport to unilaterally Adams John Presidentauthorized which Act,Friends Alien the enacted start.”overstatedfromthe of. . .national security, only to discover later that those claims were thatwe tend to sacrifice civil liberties too quickly based on claims security.national of name the in libertiescivil nessed a recurring pattern of executive branch abuses of American resist orders amounting to international crimes of war. to dutylegal and moral militaryordershis obeycoexists with to and imprisonment because of his stance that as an his duty his actofmoralconscience: commitment and willingness to face government punishment for and yourpeers;bewillingtosacrifice. America middle from criticism hard draws stand your if even and power government overwhelming with collide you if even story is the same: stand up for what you strongly believe is right, After the attack on Pearl Harbor on December 7, 1941, re 1941, 7, December on Harbor Pearl on attack the After Over the last century the ever-evolving has wit discharge dishonorable Watadaknowingly. faces smiles He and courageousactofyourentire career. man honorable most the is military sacrifice your a Nonetheless, face. prospect could shameful most the be may charge dis Dishonorable consequences. those .and bear . to willing consequences. were possible the of aware well were [Y]ou The soft-spoken Kuromiya acknowledges pride for Watada’s 10 6 And later, Congress enacted the Com the later,enacted And Congress During the Civil War,Civil the During President Abra 5 For instance, in 1798, the Federaliststhe1798, instance, in For 8 In 1919 to 1920, during the “Red 3

4 “History teaches“History 12 effectively effectively 11 -

------9 7

From Heart Mountain to Iraq 75 ------He The 16 13 He had had He 17 Watada also learned that Watada 19 volunteered to join the army army the join to volunteered

attacks, the Bush Administra

had

Later in 2007, a federal court is

20 shows that history albeit repeats, in . 14 He had trained with Stryker vehicle combat Hawai‘i native Lieutenant Watada took a sol a took Watada Lieutenant native Hawai‘i 18 15 His education came at a steep price. For Watada’s stand As the truth emerged, Watada’s desire to protect the coun In response to 9/11, Watada 9/11, to response In becoming an officer and missing troop movement. He faces up to six years in military prison. His first court-martial ended in a mistrial in February 2007 injunction halting sued a any preliminary further military court- turned out to be an unprovoked war of aggression—a war that made the U.S. a for target retaliation. he could be held accountable for an illegal war that deaths of innocent civilians. led to the against the the Iraq military war, charged him with conduct un lieved George W. lieved Bush George whenW. the President said that a pre-emp tive war against Iraq was necessary because Iraq supported the 9/11 attacks and because Saddam Hussein controlled weapons of mass destruction. try remained. But his motivation changed. He learned that the President’s administration lied about the justification for what “out of a desire payingto protect $800 our for country,” a medi asthma. childhood despite qualified he prove to test cal served honorably as an officer for over four years, including a full tour in Korea. teams and volunteered to fight in . And he had be War Resisters: Acts of Moral Conscience Conscience Moral of Acts Resisters: War Watada Ehren par [him] make would “participation his that 2006 in Concerned crimes,” war to ty itary stand against Bush President and military leadership. deploying him to Iraq. to obey military orders publicly refused far-reaching subversion of American civil liberties—including warrantless domestic surveillance of political dissidents and in definite incarceration of American “enemy combatants.” the under liberties civil of curtailment tinged racially President’s mantle of national security haunts its present. America’s past forms. differing branding them all disloyal on account of race. Recently, in re sponse to the September 11, 2001 tion not only declared war againstAfghanistan and Iraq, it also initiated the screening and secret detention of Arab Americans, immigration of enforcement hidden and selective the accelerated laws against Arab immigrants and Muslims, and triggered the 76 Amerasia Journal 2007 ternees’ support. ternees’ in roused and liberties civil American the of deprivation harsh questionable.” legally and unfair,was “it because draft immoral military unjust, the fought It rights. civil American Japanese of restoration the supporting male internees. of draft the against resistance the spearhead intern to and Mountain camp ment Heart the at (FPC) Committee Play Fair form the help to forward stepped nevertheless He draft. military without therightsEmioncepossessedasaU.S.citizen. him at Heart Mountain. family’s business for six percent of its value and had imprisoned his sell to Emi California-raised Southern the forced had ment question.” stupid very “a asked remarked, he government, U.S. The allegiance? an renouncesuch he could allegiance to Japan. He never had an allegiance to Japan, so how Frank renouncingdocument American loyalty government a sign refusedto Emi Japanese generation second interned, While Frank Emi, Yosh Kuromiya, and the Heart Mountain Resisters the U.S.bytransgressing domesticandinternationallaws. sometimes entails fighting government officials when they harm Japanese American voices advocating that one’s duty to America repeats: a few risking much to protect the rights of many; strong and Kuromiya (age eighty-four). For these three resisters, history 2007 Watada speaks to Heart Mountain resisters Emi (age ninety) and imprisonment. prosecution criminal resistance—federal their for price harsh a WestCoast. the on people of race entire an cerated incar discriminatorily government American the while war a fight to call draft U.S. the refused but States United the towards loyalty proclaimed resisters, draft Mountain Heart the ternees, in citizen U.S. these internment, Japanese American the During race. their of account on indefinitely imprisoned it men of tion conscrip its in power government U.S. of abuse the protested Worldwho War II during Americans Japanese were him before double jeopardy. against right constitutional his violate would retrial a that claim his resolved court the Watada until against proceedings martial As a married man with children, Emi was not eligible for the In important ways, Watada walks their walk. That is why in few the Among traveled. less far path a Watada chosen has 27 The FPC professed loyalty to the U.S. in part by 21 29

To stop the spreading protests, Wyoming’s Wyoming’s protests, spreading the stop To 25 There, his wife bore a son into a world 28 The group’s circulars revealed the the revealed circulars group’s The 24 The U.S. govern U.S. The 22 They paid paid They 26 23

------From Heart Mountain to Iraq 77 ------In 31 But the judge denied them 41 36 34 the resisters attempted to argue the “[i]f they are truly loyal American Federal Judge Eugene Rice convicted convicted Rice Eugene Judge Federal 40 38 30 33 Additionally, Kennedy presumed the in 37 At trial, 39

42 The Court of Appeals tersely affirmed, stating that the that stating affirmed, tersely Appeals of Court The 43 They viewed their acts as patriotic efforts to uphold the If he acceded to the military draft, he would be complicit 32 Judge Kennedy found the sixty-three resisters guilty of draft resisters Judge Kennedy found the sixty-three The U.S. attorney indicted Kuromiya and sixty-two other in other sixty-two and Kuromiya indicted attorney U.S. The Yosh Yosh Kuromiya also fought the draft while imprisoned at These defendant-resisters argued that they did not engage 35 illegality of the internment itself. the chance. evasion. racist who set the tone for the trial by addressing theas, resisters“You Jap boys.” ternees’ loyalty to Japan: citizens they should. . .embrace the opportunity to discharge. . .duties of citizens by offering themselves in the cause of our na tional defense.” in the government’s denial of due process and equal protection. “A citizen who will accept bad government without protest is not a good citizen,” he explained. ternees for resisting the draft itself. From the outset, Blake Kennedy voiced Judgeantipathy toward Kuromiya and the oth T. ers. The resisters found Judge Kennedy to be a self-professed Heart Mountain. The internment wrenched him away from art studies at Pasadena Junior College. His dreams of becoming a graphic illustrator turned into a fight toregain rights as a U.S. citizen. Kuromiya joined the FPC at age twenty-one to reclaim the rights of ordinary “citizens enjoying the us.” freedoms denied Court of Appeals overturned the resisters’ convictionsconsidering from becausejury the “prevented instructions jury judge’s the the ‘evade to Nisei Mountain’s Heart urged ever FPC the whether the that belief good-faith a of out it refusing to opposed .as . draft. con illegally to people as applied unconstitutional was law draft race.” their of account on fined applying selective service laws to people incarcerated based on race. equal to right Americans’ Japanese establish Constitution—to U.S. citizens. U.S. as treatment pris in federal years to four them sentenced and leaders FPC the Circuit the Tenth of years incarceration, one-and-a-half After on. U.S. Attorney indicted Emi and six others for conspiring to coun to conspiring for others six and Emi indicted Attorney U.S. sel, aid, and abet Heart Mountain’s draft-age Japanese Ameri the draft. cans in evading in a “guileful and stealthy avoidance of the duty to serve.” of legality the test to men young interned encouraged they stead, 78 Amerasia Journal 2007 the President, Congress, and military violated Due Process and and Process Due violated military and Congress, President, the In exclusion. and curfew American Japanese WorldWar II the of constitutionality the to challenge their for resisters, solitary of Yasui, Minoru and Hirabayashi, Gordon matsu, the of welfare Japanese people.” the risked they but lives, own their risked only not resisters] .[The . group. whole the against but people active the against only not and retaliates government the government, the defy you JACL’s “If JACL warned, a member office, national “troublemakers.” and “agitators” them branded internment, the to acquiescence American Japanese supported which (JACL), League Citizens American Japanese the of national office The others. as well as Americans Japanese cism—by American soldiers dating back to World War II.” Watada criticized for disrespecting also “a groups legacy of military service by Japanese American Japanese other Nine go.” to refused nobody .But . for.there were we hell the what know didn’t we and Korea, to WarVeterans,“Wewent Korean come famous.” to get his fellow soldiers killed so that he can save himself and be called him a “coward” and a “traitor.” His actions will “only serve dereliction of duty. A founder of Militaryof Familieshim accusedpost-9/11 and army Voicethe join to choice deliberate of Victory laws. conduct of the war likely violated both domestic and international government’stheinitiation and war: the truthabouthidden the peers his because he—along with many Americans—hadlearned doing isnodifferent.” were“I’m they correct.”What that later years many shown was Heart the that knows He Mountain resisters faced “ostracization and imprisonment, but it path. their traverses now Watada A Common Path Less Traveled ter theendofwar. af 1946—long until others the and Kuromiya incarcerated then debt.” this “cancel not did camps ternment in in confinement that and did” citizen other any that [their] country to service military same the “owed defendant-resisters Korematsu That same JACL had earlier harshly criticized Fred Kore Fred criticized harshly earlier had JACL same That criti fierce faced had too, resisters, Mountain Heart The with Iraq to plane transport the board to refused Watada 47 Yet criticismWatada’sharshCriticspointedfollowed.to v. 48 According to the head of the Japanese American ntd States United 52

45 46 , 55 Fred Korematsu asserted that that asserted Korematsu Fred 44 The government government The 50

51 53 Echoing the the Echoing another set set another 54 49 - - - - -

From Heart Mountain to Iraq 79 ------Hi 59 also backed for Watada While the veterans on the frontlines frontlines the on veterans the While and I knew about no WMD. I was 64 65 Gordon Hirabayashi submitted to ar Minoru Yasui, who had volunteered 56 57 , , The Asian American Vietnam Veterans Veterans for Veterans Peace 62

63 and mother, Carolyn Ho, who traveled the country United States United States 61 v. v. v. v. —there had been no genuine military necessity. —there So did his father, Robert Watada, an early 58 60 Even up into. . .2005, I had doubts about what was going on. I knew about Abu Ghraib, the than earlier go to willing and mission the of convinced still with. unit I was currently Second, as an officer ofWatada the U.S.consistently Army, Amidst the swirling rhetoric about Watada’s patriotism, two patriotism, Watada’s about rhetoric swirling the Amidst In counterbalance to the recent criticism, many rallied be Yasui stances. The Asian American Vietnam Veterans Organization sup Organization Veterans Vietnam American Asian The stances. reason. this for Watada port mat risked too, sacrifice—Watada, ultimate lives—the their risked reputation. lifetime and liberty value—his special of ters serve his country. to desired against the War, againstand the War, his anti-war stance. things emerged. First, in important respects, positionWatada’s is broadly consistent with the patriotic stance of many Japanese II—a willingness to American War stand veterans during World for the principles of American democracy under trying circum hind Watada. The JACL Chapter voiced vigorous sup vigorous voiced Chapter Honolulu JACL The Watada. hind port. opponent, to lobby for her son. Organization. American Civil Liberties Union, Iraq Veterans purposely violated the curfew order to test its constitutionality. The Supreme Court affirmed his conviction. forty Significantly, years after the fact, federal courts vacated the convictions of Ko rematsu, Hirabayashi, and findingYasui, a “manifest injustice” because the U.S. War and Justice Departments had defrauded the court in their cases by destroying and fabricating dence key evi rest to test the constitutionality of the racially designated military military designated racially the of constitutionality the test to rest the that finding violation, curfew his affirmed Court The curfew. curfew was an appropriate defense measure for safeguardingAmerica from disloyal American citizens of Japanese ancestry. In race, of account on discharged later was and military U.S. the for Equal Protection constitutional guarantees by interning 120,000 divided A trial. or charges without Americans Japanese innocent Supreme Court sided with the government, ruling that the ex clusion leading order to the internment was justified by military necessity and therefore did not violate the constitution. In rabayashi 80 Amerasia Journal 2007 anti-Semitic mass extermination of five million Jews during during Jews million II. five WarWorld of extermination mass anti-Semitic Nazi’s the of horror the from emerged Charter Nuremberg The Nuremberg Principles refuse militaryorders heconsidersviolativeofhumanrights. to duty officer’s an established that principles rights human II law. domestic and and continued fighting of the contravenes international initiation that America’s belief his in Watada stance his grounds An Officer’s “Duty to Disobey Unlawful Orders” al principle. resistingconstitution of matter a as service military involuntary principles), while the Heart Mountain resisters, as civilians, were Nuremberg of applicability the (hence choice by officer military acted U.S. differ,Watadaa that however,is situations unlawfully. in Their the that belief a and conscience moral in grounded been have government the against struggles their that in similar military orders, Watada citedNuremberg. obedience of duty blind a owed he officer military a as that truth.”realizethe we from the start, Watada observed, “We don’t pick and choose when however, altered thewayheacteduponthatdesire. conduct, its and war the for justification the of dissembling ing In this respect Watada and the Heart Mountain resisters are resisters Mountain Heart Watadathe respect and this In around theworld. and people Iraqi the upon wrought have we devastation the see you when Especially policy,”foreign can excuse. no Ameri that’s of part not we’re “Well, that, saying and told are we whatever with along going simply Just there. out soldier ery ev to applies it and applies, [Nuremberg] believe certainly I better known have should he that criticism to Responding the inceptionofthiswarbutthrough itsconduct. hindsight, people have learned there was deception not only in started to think about. . .what I was being ordered to do. . . [I]n And that was deeply shocking and disturbing, and that’s why I perceived.or told simply was I what to opposed as happening really was what of aware became I leader, a as responsibility my was it as myself, .educate . to. started I when only was It New knowledge about the Bush Administration’s wide-rang 71 The Holocaust atrocities shocked the world’s world’s the shocked atrocities Holocaust The 70 He cites Nuremberg—the post-World Warpost-World Nuremberg—the cites He 69 67 And further responding to the challengethe responding furtherto And 66 - - 68 to to - - From Heart Mountain to Iraq 81 ------

82 Jack 80 Jackson Through 76 81 Drawing upon Drawing 83 If validated, this defense, combined with combined defense, this validated, If and crimes against humanity. 79 75 emerged as a pathbreaking response. response. as a pathbreaking emerged 78 73 and prosecutions, though viewed by some critics as 72 war crimes, Jackson advocated, and the world has since come to ac 74 77 This linkage undergirded the conviction of ArmyU.S. Lieu To hold these individuals accountable for violations gross of To Robert H. Jackson, Associate Justice of the U.S. Supreme villagers—mostly women, children, infants, and elderly. soldiers Thealso gangraped Vietnamese women. Calley defended orders. superior to response a as atrocities these Nuremberg principles, however, the military judge instructed defense. In doing so, the Nuremberg Tribunal “pierced the veil of sovereignty of ” and, for the first to human rights. linked personal accountability time, directly tenant William Calley for the massacre of hundreds of civilians during the Vietnam AmericanWar. soldiers shot 500 innocent just following orders. following just account one no leave would immunity, sovereign of defense the able—both the heads of state and the subordinates who carried out their orders would get away with murder—literally. cannot organized modernly as “[s]ociety that cogently argued son tolerate so broad an area of official irresponsibility.” conviction of Nazi officials, Jackson entombed the the Tribunal’s . human rights, Jackson successfully the shredded defense of “su perior orders.” Nazi military and political leaders attempted to undermine criminal charges against them by claiming that Hit ler commanded them to commit the horrific crimes—they were accountability—that individuals are responsible for their actions, for actions, their responsible are individuals accountability—that “the end to aimed Jackson orders. superior following when even severe suffer defendants domestic where anachronism,” ultimate or initiate who officials countries’ while murders, for punishment scale during war go unpun massive a on crimes similar condone ished. under crimes justify cannot authorization law domestic that cept, Court, served as chief prosecutor for the Nuremberg Tribunal’s reflect tribunal the to approach His officers. military Nazi of trial coalesced principles Those principles. rights human emerging ed against crimes crimes: basic three of recognition international into peace, personal of precept the in officials Nazi against charges grounded conscience, and nations everywhere sought answers and assur ances. Who should be held responsible for these warHow crimes?could they be prevented in the future? Charter The Nuremberg “victor’s justice,” 82 Amerasia Journal 2007 level military and “not those above in the chain of command.” of chain the in abovethose “not andmilitary level order,direct ByTaguba lower onlyinvestigatedprisoners. Iraqi Taguba’snio official investigation torture Ghraib the into Abu of andcrimes against humanity. Thiswas confirmed Gen.by Anto them in secret prisons abroad, cansare the aggressors.” orJapanese aggression,” Watada says. “In this war we the Ameri crimeagainst peace. tiating an “Iraq war of aggression,” the United States committed a committed acrimeofaggression underinternationallaw. Several observers thereforewar. suggest that the Bush administration the sanctioned never Council Security The Iraq. invaded U.S. the when destruction mass of weapons no found had and inspection their through midway were U.N. the from inspectors Weapons U.S. the to threat imminent an constitute not did and Council. U.N. Security the by authorized armed force against another country only in self-defense or when aggression. These Nuremberg principlesare keytoWatada’s stance. Watada in Light of Nuremberg act ordered wasunlawful.” the that know to expected been have reasonably not could and know not “did accused the unless crimes, war committing orders.unlawful disobey to duty officer’s an articulating morespecifically in ples ventions. forth generally in the Charter affirming hislifesentence. and defense orders superior Calley’s rejected properly jury the defense. a knew Calley that determined it if that jury court-martial the Cast in this light, Watadalight, this in Cast ini in that asserting in others joins of wars and peace the against crimes bars Charter U.N. The able thatbehavior. en and condone forcesto it soldiers then and constitution, the into incorporated has it that laws [international] and treaties own its violates that government the a have we defend and to constitution, oath an take military the in We laws. own its and principles own its violated government States United The Indeed, the United States endorses Nuremberg principles set that the orders were illegal, “superior orders” would fail as 87 84 The U.S. Army Field Manual embraces these princi these embraces Manual Field Army U.S. The 91 The Court of Military Review agreed, finding that that finding agreed, Review Military of Court The More specifically, the Charter permits the use of use the permits Charter the specifically, More 88 Following superior orders is not a defense to defense a not ordersis superior Following 94 90 This is “not a WWIIfight “notagainstaThisis German 89 95 In torturing captives and incarcerating 85

96 the U.S. is engaging in war crimes 92 Iraq had not invaded had not Iraq 86 and Geneva Con actually actually 93

- 97 - - - - -

From Heart Mountain to Iraq 83 ------For

100 103 In Watada’s 99 to allow the Heart Mountain

of the Iraq war and therefore the therefore and war Iraq the of

101

barred Watada from showing the reasonable , 102

98 In the past, “[t]he government tried in artificial ways to pre Judge Head’s ruling thus also raised the procedural broader For Watada, Foras Watada, crimes against peace the and Iraq humanity, Epilogue: A Long Line of Resistance Against Injustice Against Resistance of Line Long A Epilogue: Like the Heart Mountain draft resisters before him, Lieutenant the in just” and “right is believes he what do to struggles Watada face of harsh punishment. conflict. According to According Falk,conflict. Richard a leading expert on interna tional laws of many warfare, scholars “in are agreement that the believes .reasonably . Watada. Lt. if so .And . illegal. is Iraq in war that the war is illegal, then it certainly would seem plausible for to participate” at the stage of deployment. him to refuse question: “How, then, can a[n officer] say no to an illegal war?” then, question: can a[n “How, officer] say no to an illegal war?” For Daniel Baggio,Army’s chief media relations officer, the answer is “he can’t.” The military “can’t have people say ing, ‘Well, I’ll fight in this campaign but not in that campaign’. . .Those are political-type decisions.” But refusing to deploy for great differs action of theater the outside far reasons Nuremberg ly a from soldier’s refusal to follow combat in orders the field of vent defendants from explaining in court. . . why they did what they did,” Seitz said. “But there is a contradiction, because they issues the of core are what led the in being defendant there from the first place.” resisters resisters to prove the reasonableness of their belief in the intern ment’s illegality illegality the in belief his of ness propriety of his refusal to deploy—notwithstanding the Army Field Manual and the Uniform Code of Military Justice. Watada’s attorney, Eric Seitz, this ruling “cuts out the heart of defense.” Lieutenant Watada’s war is illegal under international law, and Nuremberg principles principles Nuremberg and law, international under illegal is war mandate therefore that he refuse to obey military orders to fight that war (he is willing to fight in Afghanistan). court-martial, however, the military judge blocked his Nurem berg human rights defense. Judge John Head, Kennedy’s echoingrefusal sixty Judgeyears ago He He nevertheless determined that senior officersforgot values of honor, integrity” “duty, and that Conven “we Geneva violated the of the tenets laws of violated land We Ghraib. Abu in warfare tion. violated We our own principles and. . .our [core] military values.” 84 Amerasia Journal 2007 Training School’s history of racially discriminatory treatment of of treatment discriminatory racially of history Training School’s military injustice. He successfully challenged the Marine Officer back in1944.. You are notalone.” way set group our perhaps that tradition of kind a of line a long from coming “you’re that Watada assure Emi and he closes, con of acts science. of freedom the embraces he simultaneously, Yet, with thepersonalpainofhispublicactions. by speaking truth to injustice. And like all resisters, he struggles silenced. or dued people, toconvincethemnotexercise theirrights.” tains that the U.S. employs main Slocum silence.” in honor or courage no is There speak. to have you war, this fighting women and men the “Toprotect military officers have a duty to object to manifestly illegal orders. leave the U.S. Air Force. to decision his for model role military Watada the Lieutenant as For thisreason Watada inspires others. Indeed Captain Bruce Yamashita is another historic resister of “Exactly,” says Kuromiya. As the intergenerational colloquy again free became I me, for right was what chose .I . realized. I when And choice. that have do I consequences with comes that though science and what I can live with for the rest of my life, and even con my in is what right, morally is what do to choice a have I was already in prison. My freedom was already gone. I prison;to sent be might I thatmatter didn’t It choice. a have imprisonedfeltinside..I I. myselftellingdidn’tmyselfby byI tary. . .and that [I] was to obey what I was told regardless of how cause I told myself I didn’t have abe choice.depression .a .thatthrough I went joinedI the when mili time long a was There resisters,Mountain Heart the Like Watadarefuses sub be to sergeantup master Jefflifts Forty-one-year-oldchief Slocum was todowhatisrightandjust. choice That answer. another was there believe this I of country,did people the but institutions and men not served I that despite what I knew to be utterly wrong. Only when I realized contract my of terms the was fulfill to I compelled felt I time turmoil. long in a For “crimes.” my contemplate and rot to key, the me away throw leave up, me lock can they Physically . 108

107 Like Emi and Kuromiya, he gains strength strength gains he Kuromiya, and Emi Like 105 Slocum believes that even lower-level

the language of patriotism “to subdue 104 109 Watada concurs. 106 ------From Heart Mountain to Iraq 85 - - - All All - - eattle Journal Journal eattle 29 (2005). even if I did come out (Chicago: University of Chicago (New York: Knopf, 1998). Knopf, York: (New —which fortunately there he Fate of Liberty: Abraham Lincoln and Civil Civil and Lincoln Abraham Liberty: of Fate he (Clips from the 2007 film are available at /index_conscience.htm). m 111 . First Lt. Ehren Watada and Frank Emi and Yosh Ku Yosh and Emi Frank and Watada Ehren Lt. First . NYU Review of Law & Social Change 110 Lincoln’s Lincoln’s Constitution 4 (2005), which tells the stories of Kuromiya and fellow draft draft fellow and Kuromiya of stories the tells which (2005), 4 Watada, Resister www.resisters.co (New York: Oxford University Press, 1991); William H. Renquist, Renquist, H. William 1991); Press, University Oxford York: (New Watada, Resister Watada, at least I would’ve known that I came from a long line of resis Press, 2003): 615; Mark E. Neeley, T Neeley, E. Mark 615; 2003): Press, Liberties Wartime in Liberties Civil One: but Laws the Ibid. Korematsu,” of Fred expired (1798), Large at Statutes U.S. 1798,” of Act “Sedition 1800; in terms by its own terms in 1800; “Amicus Brief of Korematsu.” camp, camp, spoke by videoconference on January 27, Intelligence 2007. Military the in Paul serve to chose Tsuneishi, a who Kuromiya and Emi of friend participat also Mountain, Heart at imprisoned was family his while Service of Three the a Lessons The Stand: “Taking Bannai, see: Lorraine Also ed. S Court,” to Internment American Japanese the Took Who Men Justice Social of Korematsu. Fred resister internment Akutsu Gene resister http:// II romiya, resisters of draft War the at World Heart Mountain internment Curtis Choy, Choy, Choy, “Amicus Brief of Korematsu,” 615. “Amicus Brief of Korematsu,” See “Amicus Brief: Rasul v. Bush & Al Odah v. U.S.: Brief Amicus Curiae Amicus U.S.: Brief Al Odah v. Bush & See “Amicus Brief: Rasul v. See Daniel Farber, See “Alien Act,”Friends U.S. Statutes at Large (1798), expired by its own tance towards injustice. they. . .were vindicated years after that. . . vindicated . .were they. can only learnWe from the past, and certainly it helped me in the decision that I made and knowing that and there was no one that supported me is— I’ve always believed that what I’m doing is not unique. been done all It’sthroughout . our .There history. are people who they .because . sacrifice. the of regardless up stood always have strongly believe that they can only do the rightthat’s the same thing with the thing.Americans Japanese who resist And ed internment and the draft—they did what was right. And With all of this in mind, Watada concludes the exchange: all of this in mind, Watada With 1. 2. 5. 4. 7. 3. 6. Notes In important ways, history repeats. In important ways, officer candidates. Despite immense personal hardship and at over several years in the 1990s he achieved tacks by the military, a settlement that approved his military rank as captain and also compelled the training school to implement non-discriminatory policies and practices.

86 Amerasia Journal 2007

20. 15. 21. 19. 17. 16. 13. 14. 10. 12. 18. 11. 9. 8.

Jeremy Brecher and Brendan Smith, “Lieutenant Watada’s War Against WarAgainst Watada’s “Lieutenant Smith, Brendan and Brecher Jeremy “War Objector’s 2 “WarObjector’s Yamamoto, “White (House)Lies,”286-287. Refus For Court-Martial Faces “Officer Egan, Timothy and Kifner John See Susan Akram and Kevin R. Johnson, “Race, Civil Rights and Immigra See Robert J. Goldstein, Yamamoto, “White(House)Lies,”286-287. See “Barbour Espionage Act,” Act,” Espionage “Barbour Eric Yamamoto, Margaret Chon, Carol L. Izumi, Jerry Kang, and Frank H. Ernest M. Kimoto, “Re: Nat’l JACL Resolution on Watada,” www.truthout.org/docs_2006/020807A.shtml. trial: Here’s What Really Happened,” Truthout, February 8, 2007, http:// Watada Mis “The Simpich, Bill warranted. was mistrial a that and facts stipulated of set a Watadamisunderstood that found judge military The October 5-18,2007,2. 88&en=b4abeaf6627dfeb8&ex=1311307200&. online at http://www.nytimes.com/2006/07/23/us/23refuse.html?ei=50 Toing Deploy,” Ibid. http://www.thenation.com/doc/20060626/brecherwebvideo. War,”the until the court can make a final determination on the merits. In In merits. the on determination final Watada’s a make can court the until CLUwD8SPSFQO0. A preliminary injunction halts the defendant’s action http://ap.google.com/article/ALeqM5jzqndP1GGmkmTvyXuGEiawvL Balancing Away Liberty After 9/11,” Review Law curity,the in Dichotomy False 9/11,”and of Aftermath Liberty S Se Detention: Indefinite of Paradigm Legal the Ghoshray,“Untangling National Security Abuses,” the Public Must Compel the Courts to Hold the President Accountable for Rights Law Review 11,” September After and Before Race of Construction W. Joo, “Presumed Disloyal: Executive Power, Judicial Deference, and the Studies: The Citizen and the Terrorist,” Law American of Survey Annual NYU tion Law After September 11, 2001: The Targeting of Arabs and Muslims,” (2003); “AmicusBriefofKorematsu.” True Legacy,”Internment’s the and Profiling Racial Impact? or “Inference Muller, Eric 2001); MD: ick, Wu,Race, Communist Control Act,PublicLaw 27, 1920. es Made Against Department of Justice by Louis F. Post and Others, the Present and 40. House Committee on Rules, Attorney General A. Mitchell Palmer on Charg The Nation The (Boston:G.K.Hall&Co.,1978):150. Rights and Reparations: Law and the Japanese Internment Japanese the and Law Reparations: and Rights

19 (2006); David Cole, “The Poverty of Posner’s Pragmatism: Posner’s of Poverty “The Cole, David (2006); New YorkNew Times 34 nd Court Martial Blocked,” Google News, Nov. 9, 2007, 2007, Nov. 9, News, Google Blocked,” Martial Court

, June 26, 2006. This article is also available online at online available also is article This 2006. 26, June , (2002); Eric K. Yamamoto, “White (House) Lies: Why Political Repression in Modern America: From 1870 to U.S. Statutes at Large at Statutes U.S. Law and Contemporary Problems , July 23, 2006. This article is also available also is article This 2006. 23, July , Ohio State Journal of Criminal Law Law Criminal of Journal State Ohio 637(1954),section886. 58 (2002) 58 Stanford LawReview UCLA Law Review ; ; L 217 (1917): Chapters 30 30 Chapters (1917): 217 eti Volpp, “Critical Race Race Volpp, “Critical eti Columbia Human Human Columbia 49 (2002); Tomas 59(2007). 68 (2005); Saby Pacific Citizen 66th Cong. t. Thomas t. (Freder 103–104 103–104 ------, From Heart Mountain to Iraq 87 ------. l Oka The War The War

l . l 54, pt. 885. Nikkei Nikkei for Civil Rights

49 (2006). . Public Broadcasting System. . / U.S. Statutes at Large http://www.resisters.com/news/yosh_ . Cir. 1945). Cir. th Howard Law Journal http://www.ncrr-la.org/news/3_3_03/2.htm http://www.jamsj.org/articles.htm http://www.ncrr-la.org/news/7_6_03/1.htm

Conscience and the Constitution , 152 F.2d 905 (10 , 152 F.2d . m U.S. v. moto Conscience and the Constitution 60th.ht saster Than We Realized,” saster Than We Act of 1940. and Service Training Ibid. Ibid. Civil Rights and Redress. Redress. and Rights Civil Resisters.” his widely read editorials. The day before the Wyoming court convicted the FPC steering committee, it acquitted Omura as a party to the alleged Di Bigger Cases—A American Japanese “The Muller, Eric See conspiracy. Harry K. Honda, “If Suitcases (of Internees) Could Talk,” Japanese Ameri Japanese Talk,” Could (of Internees) “If Suitcases K. Honda, Harry Jose, San of Museum can http://www.pbs.org/itvs/conscience Ibid. questions were often ambiguous. Question 28 on loyalty was particularly 28 on was Question particularly ambiguous. loyalty often were questions nationality, Japanese their renounce to chance a Issei offered it problematic; Some citizens. U.S. becoming from barred legally still were they although required Japan to allegiance their “forswearing” question; trick a as this saw that such admitting existed. an indeed did Many allegiance internees not who an members family from for of how fear know to separation answer nega the reinforce to worded also were documents The differently. swered race. to the Japanese connection American of and the Japanese stigma tive article for further discussion. article for further discussion. Resisters,” Nikkei for Civil Rights and Redress,” and Redress Relocation Authority and War Department created the “Application for disloyal to separate intended ostensibly a questionnaire Clearance,” Leave from loyal internees to facilitate the reintegration of loyal internees into society. These questionnaires raised many issues for the internees. The case, the federal judge found that Watada was likely to prevail on the mer the on prevail to likely was Watada that found judge federal the case, its of his double jeopardy claim and would suffer irreparable harm if the 2916545, W.D. Head, 2007 WL v. Watada second court martial proceeded. Co2-5549BH5). 8, 2007 (No. Nov. Wash., James Omura, a non-internee journalist, highlighted the FPC’s efforts in Yosh Yosh Kuromiya, “The Trial of the 63 (or Uncle Sam plays Dirty Pool),” Frank Abe, Nikkei for Civil Rights and Redress, “University of Wyoming Hosts Draft Hosts Wyoming of “University Redress, and Rights Civil for Nikkei American Cases,” 449. “The Japanese Muller, Muller, “TheMuller, Japanese American Cases,” 450, emphasis added. See Gerald Lenoir, “Japanese Internee Denounces Racism and War,” Nikkei for for Nikkei War,” and Racism Denounces Internee “Japanese Lenoir, Gerald Nikkei for Civil Rights and Redress, “University of Wyoming Hosts Draft Hosts Wyoming of “University Redress, and Rights Civil for Nikkei Muller, “Inference or Impact,” 109. “Inference Muller, The U.S. Attorney indicted the men for violating section 11 of the Selective Selective the of 11 section violating for men the indicted Attorney U.S. The See the section “An Officer’s “Duty to Disobey Unlawful Orders” of this 29. 26. 35. 25. 28. 31. 33. 34. 27. 24. 22. 30. 32. 23.

88 Amerasia Journal 2007

47. 38. 42. 45. 52. 51. 50. 49. 48. 46. 44. 40. 37. 36. 43. 39. 41 This topic is discussed in greater detail in the section “An Officer’s Duty Duty Officer’s “An section the in detail greater in discussed is topic This Bittner, “‘Loyalty. . .is a Covenant’: Japanese American Internees and the the and Internees Bittner,Japanese American “‘Loyalty. Covenant’: a .is . Martha Nakagawa, “Reconciliation Coming Slowly for Draft Resisters,” Resisters,” Draft for Slowly Coming “Reconciliation Nakagawa, Martha July in resisters Mountain Heart the to apologized formally JACL The Watada,” on Silence Vets End Nisei Commentary: Wada,“Guest Robert In The War to Refusal Ehren Watada’s to Responses Loyalty: “Defining Taylor,Kristin WatadaLt. to Rebuke Army Refusal Families for “Military Abe, ConscienceandtheConstitution. Kuromiya, “TheTrial ofthe63.” Eric Bittner, “‘Loyalty. . .is a Covenant’: Japanese American Internees Internees American Japanese Covenant’: a .is . “‘Loyalty. Bittner, Eric Twenty-two more Heart Mountain internees followed Kuromiya and the the and Kuromiya followed internees Mountain Twenty-twoHeart more orgs/pol/aacc/press/uictoday/ut20020218.shtml. SeealsoLenoir. http://www2.uic.edu/stud_ 2002, 18, February Committee,” Coalition cans Imprisoned for Resisting Draft During World War II, Asian American Abe’s Frank Japanese Ameri of Stories Untold Constitution—The Presents: the and Conscience “AACC high. run still resisters the against tility hos resentmentJACLand of Several Feelings protested. oldtimers 2000. from=&ucat=5&. ticles/stories.php?subaction=showfull&id=1156453200&archive=&start_ http://www.nichibeitimes.com/ar 2006, 24, August Times, Bei Nichi com/watada.html Ehren Watada,” Objector Iraq JA for Held Hearing “Pretrial Shiomi, Audrey See reason. this for Watada of support in The Veterans remain Vietnam American Asian circumstances. trying under principles for sacrifice to willingness II—a WarWorld during veterans many of stance patriotic the with tent node/137 Nikkei, Discover Iraq,” of Victory, http://www.mfvov.org. Voice Families Military Groups,” with Anti-American and Alliance Serve to DisobeyUnlawfulOrders” ofthisarticle. Selective Service Act, ConscienceandtheConstitution.” U.S. the U.S.Constitution.”SeeKuromiya, “TheTrial ofthe63.” to insult an as court Kennedy’s Judge of defiance in unity gestureof bolic had “no hopes of winning, of course, but acted on principle and as a sym they Kuromiya, to According trial. their following months the in others U.S. Ibid. U.S. Ibid. Ibid. able onhttp://www.resisters.com/study/Bittner.htm. Quarterly of the National Archives Constitution,” the Service and Selective Conscience the Act, and , 930.Seealso Abe, KennedycitedthedualcitizenshipofJapanesenationals’children. v. v. v. Fujii Fujii Fujii 7 . In important respects, Watada’s stance appears to be consis be to appears Watada’s respects, stance important In . , 148F.2d 298,299(10thCir. 1945). , 148F.2d at931.See Abe, , 55F. Supp.928,932(D.Wyo. 1944). The Rafu Shimpo Online Conscience andtheConstitution. http://www.discovernikkei.org/forum/en/ , 23:3 (Fall 1991). This article is also avail Conscience andtheConstitution. , Aug. 16, 2006. http://www.rafu. Prologue: ------From Heart Mountain to Iraq 89 ------Hi Wash United v. v. , September 7- , September Denver Journal Yasui . . Cir. 1987); , 18 (1982). (Congressional (Congressional (1982). 18 , Pacific Citizen Pacific th See Shiomi, “Pretrial Hearing Held for Held Hearing “Pretrial Shiomi, See

20 (1991). , 584 F. Supp. 1406, 1417 (N.D. Cal. 1984); , 320 U.S. 81 (1943). , 323 U.S. 214 (1944). Conscience and the Constitution the and Conscience , 828 591,F.2d 597 (9 August 14, 2006, http://www.indybay.org/news

, , 320 U.S. 115 (1943). , 320 U.S. 115 27:3/28:1 (2002-2003). , March 5-12, 1999. Also available online at http://www. United States . United States . United States v. United States v , January 4, 2007, http://www.washingtonpost.com/wp-dyn/ v U.S. News Personal Justice Denied: Report of Commission the on Congressional v. ” United States , 484 U.S. 971, 108 S.Ct. 471 (Mem), 98 L.Ed.2d 409 (1986). , 484 U.S. 971, 108 S.Ct. v. v. fuse to Go, Retired Officer Says,” CommonDreams.org June Newscenter, 20, 2006, http://www.commondreams.org/headlines06/0620-08.htm. Watada, items/2006/08/14/18297206.php. Watada.” Iraq Objector Ehren JA Ibid. ington Post content/article/2007/01/03/AR2007010301914.html. sworn to do.” JACL Hawai`i, Honolulu Chapter, JACL “Hono JACL Hawai`i, sworn to do.” Chapter, Honolulu JACL Hawai`i, of Con Decision Watada’s of Lt. Ehren in Support Statement Chapter lulu with file on Forman, David President Chapter (from 2006 17, July science,” its initially strengthened board JACL the national 2007, August In author). protection and trial impartial and fair a for calling Watada, for support tepid “National Aoyagi-Stom, Caroline See jeopardy. double against right of his Watada,” for Support Strengthens Board JACL Abe, also See 1. 2007, 20, and deliberate act of conscience.” By supporting Lieutenant Watada, JACL JACL Watada, Lieutenant supporting By conscience.” of act deliberate and Hawai`i “honors our II legacy of the preserving lessons War of the World of internment Americans to Japanese that ensure such mistakes are never repeated nor upon revisited and any ourreaffirms other princi minority, pled efforts to protect the takes Hawai`i Constitution. Lieutenant Watada a stand similar to of striving as uphold the principle, he Constitution was States Civilians, Civilians of Internment and Relocation Wartime the investigative commission found that the causes of leader the political of failure internment a hysteria, “war rather but were necessity military not ship and race prejudice”). thing Else: Social Meanings of Redress and Reparations,” Policy of International Law and Korematsu Hirabayashi Yasui Korematsu rabayashi Pacific Citizen resisters.com/news/PC_Nakagawa.htm. Amerasia Journal of the racial internment. “Friend, or See Foe Eric or K. Yamamoto, Some Linton Weeks, “A Mother Fights for a Soldier Who Said No to War,” War,” to No Said Who Soldier a for Fights Mother “A Weeks, Linton See United States Commission on Wartime Relocation and Interment of Brad Wong, “Soldier’sBrad Wong, StanceIraq Backed:War has RightWatada to Re Only three Japanese Americans initially challenged the constitutionality Jeff Paterson, “Military Veterans Stand Behind ‘Illegal War’ Refuser Lt. The JACL Hawai`i, Honolulu Chapter supported Watada’s “thoughtful See Eric K. Yamamoto and Susan Kiyomi Serrano, “The Loaded Weapon,” Weapon,” Loaded “The Serrano, Kiyomi Susan and Yamamoto K. Eric See 62. 57. 58. 55. 59. 64. 61. 54. 63. 60. 53. 56.

90 Amerasia Journal 2007

75. 69. 68. 66. 74. 73. 71. 70. 67. 76. 72. 65.

Choy, Citizen Soldier, “War Crimes and Blind Obedience,” Citizen Soldier, Soldier, Citizen Obedience,” Blind and Crimes “War Soldier, Citizen Choy, See “The Fifth Annual Ernst C. Stiefel Symposium: 1945-1995: Critical Critical 1945-1995: Symposium: Stiefel C. Ernst Annual Fifth “The See See The Holocaust History Project, “Tell Me Everything,” Holocaust His Holocaust “TellProject, Everything,” History Me Holocaust The See Henry T. King, Jr., “The Legacy of Nuremberg,” C Beginning in 2004, numerous accounts of Ibid. constitute warcrimes Ibid. of Nuremberg, violation of treaties” constitute crimes against the peace. See King, in wars and aggression of wars implementing and preparing, “Planning, the past.” of pitfalls the avoiding while law international of development gressive pro the of conception a support could that way middle Deal-style New velopment of the Nuremberg Charter as “simply a search for a pragmatic, de the describing assessments, these counter Nuremberg of Supporters (e.g. “aggression”), Borgwardt concepts key define clearly failureto Charter’s the question scholars tion, Falk,” Crimes TrialsRichardand NationalLaw:Remarksby onInternational A. War the of Impact The TokyoTribunals: and Nuremberg the Years After Law International of nal and the Limits of Law in Generating Human Rights Norms,” Culture Politics, Institution: Deal New a as Nuremberg “Re-Examining “victor nations” were represented on the bench. See Elizabeth Borgwardt, Nurembergthe that asserted Critics Trials only because legitimacy lacked 37-38. pages in (1993) 1” War Criminals Nazi “Prosecuting Rosenbaum’s inals,” War Criminals: A Call for the Immediate Prosecution of Living War Crim actions.” and policies nation’s defeated the judge to war a of victor the by established system justice “a Rights Human of Journal School Law Perspectives on the Nuremberg Trials and State Accountability,” man Rights Litigation,” ConstitutionalSecurityandJusticeJackson, NurembergLiberty: Hu and ReviewAngelesLawLos Loyolaof alsOfThe Century: Transformative Justice and the Ethos OfNuremberg,” of International Law shtm Project, tory Ibid. http://www.citizensoldier.org/warcrimes.htm Ibid. the Abu Ghraibprison Seenotes91and94. l “Crimes committed in the course of aggressive war, including atroci “Violation of laws or customs of war,” such as torture of prisoners, prisoners, of torture as war,” such of customs or laws of “Violation , (accessedMay14,2007). Watada, Resister Watada, Resister American Society of International Law Proceedings Law International of Society American Maryland Journal of Contemporary Legal Issues Ibid., 337. http://www.holocaust-history.org/short-essays/general. 429. 34 (2002). See also Jonathan Turley, “Symposium On Tri . . . cametopublicattention. Albany Law Review 23 (2005): 401 and 403. Richard A. Falk, “Forty “Forty Falk, A. Richard 403. and 401 (2005): 23

, 33 (2000) and Paul L. Hoffman,L.Paul“Wartime (2000)and 33 436. See Marc J. Marc See

12 (1995). Victor’s justice describes describes justice Victor’s (1995). 12 abuse 68 (2005).

Hertzberg, “Prosecuting Nazi Nazi “Prosecuting Hertzberg, and l , (accessedJune23,2006). ase Western Reserve Journal 5 (1994), citing Alan S. torture 80 (1986). In addi In (1986). 80 of Berkeley Jour prisoners New York Legacy in ------

From Heart Mountain to Iraq 91 ------U.S. U.S. are crimes crimes are U.S. Consti ” ” 47

. “The fact that the that fact “The . http://www.yale.edu/ . m only lawful orders lawful only 1 (1993). , 338. , 338. http://www.truthout.org/docs_04/110904A. . . 27-10, section 509. . art. 33, para.1; art. 39, para. 1 art. 51 para. 1. section 2441 (1996). See also notes 88-89. notes also See (1996). 2441 section San Diego Justice Journal Watada, Resister Watada, The Legacy of Nuremberg The Legacy of Nuremberg . Benjamin Ferencz, a prosecutor of Nazi war crimes at Nuremberg Army section Field 892 that Manual members (1951). provides The l 324. ” , 335 , U.N. Charter U.N. Charter , “Aggressive War: Supreme International Crime, See 2004, 9, November Truthout, shtm has said Bush George shouldW. be tried for war crimes for starting “ag lawful military orders is the duty of every member of the armed forces. . .” .” . forces. armed the of member every of duty the is orders military lawful Army Field Manual Ibid. See See contrary to the Constitution, the law of the United States.” the United contrary to the Constitution, the law of tution obey to bound are forces armed the of law of war has been violated pursuant to an order of a superior author . .doesity. not deprive the act. . .of its character of a , nor does it constitute a defense. . .unless [the violator] did not know and could not reasonably have been expected to know that the act ordered was unlaw to obedience that fact “[t]he against this weigh must court military A ful.” ture, ture, and inhumane treatment, constitute “war crimes.” “Crimes comprise against civilians, protect to failure and of targeting the include humanity” These Convention. Geneva Fourth the violate and humanity against crimes see Act 118 of 1996, Crimes War the U.S. under punishable are crimes Constitution suant to Article 92: “A general order or regulation is lawful unless it is War Ibid., Ibid. law U.S. into Charter the incorporated U.S. the ratification, Upon 1945. in Article 6 of the U.S. Constitution. through lawweb/avalon/imt/jackson/jack08.ht Report to the President Ibid. ties or other inhumane acts committed against civilian populations and per and populations civilian against committed acts inhumane other or ties reasons and political religious, for racial, of civilians secutions humanity against Ibid. Project, “Report to the Justice Avalon President Jackson: by The Mr. June 6, 1945,” The ProjectAvalon at Law Yale School, Grave breaches of the Geneva Conventions, for example willful killing, tor killing, willful example for Conventions, Geneva the of breaches Grave Matthew Lippman, “War Crimes: The Matthew My Lippman, Lai “War and Massacre the Vietnam King, Choy, Choy, The U.N. Charter is an international treaty ratified by the U.S. Congress King, The Uniform Code of Military Justice defines “lawful commands” pur

87. 81. 91. 85. 78. 84. 80. 83. 79. 77. 90. 86. 82. 88. 92. 93. 89.

92 Amerasia Journal 2007

94. 98. 99. 97. 95. 96. 2001, http://www.newamericancentury.org/Bushletter.htm.dent George W. Bush,” Project for the New American Century, Septemberour allies.’” See William20, Kristol, “Letter from William Kristol, et al, to Presi have conducted attacks previously against‘that U.S.and personnel,good’ no U.S.us interestsmean that thereand out groups ‘other those target also must but incident, this for responsible people the finding at only not aim even in the absence of actual provocation. “We agree. . .that U.S. policyto victory’must in the war against terrorism” and supported a “pre-emptive” war Bushadministration’sthewith “admirable commitmentworld‘lead theto and Project for the New American Century early on found no legal problemsotherhand,neoconservativethe On William Kristolof Watada volunteered to join the Army, but he did not volunteer to fight in fight Watadatovolunteer nottheArmy, joindidvolunteered tohe but Seymour M. Hersh, “The General’s Report,” WataEhren Lt. With1st One on One “Exclusive: Aoyagi-Stom, Caroline See “Carter Says U.S. Tortures Prisoners,” CNN.com, Oct. 10, 2007, http:// August 9, 2006, http://starbulletin.com/2006/08/09/news/story02.html.Greg Kakesako, “Army Will Not Allow Watada to Resign,”numerous StarBulletin.com,timesrespectfully“to quietlyandresign commission.”hisSee WatadaQaeda, Alto askedties alleged destruction and mass of weapons formed about Saddam Hussein’s involvement in 9/11, alleged stockpiles of “illegal”an Iraqwar. Whenrealizedhe that Americanswere badlymisin only with“lawfulorders.” compliance mandates which (UCMJ), Justice Military of Code Uniform the to military the of members subjects oath This CMH/faq/oaths.htm. http://www.army.mil/ 2004, 27, July History, Military of Center Army fend the Constitution. See Ibid. also availableonline and atGuantanamoBay”). Iraq in torture for responsibility of Rumsfeld Donald Secretary Defense ropean rights group filed a legal complaint in France accusing former U.S. http://www.truthout.org/docs_2006/102607R.shtml (“American and Eu Truthout.org,26,2007, Rumsfeld,” Oct. “TortureAgainst Filed Complaint www.cnn.com/2007/POLITICS/10/10/carter.torture/; Associated Press, news/view_article.html?article_id=0c13ccb6d447675317a9fb2094973a96. da,” (2001). eignty in Today’s International Human Sover Rights State Arena,” of Future and Role The Past: the of Shackles the “Breaking Kearns, Temple Fett See prosecution. a such of prospects real-politic the undercut prosecutor a of appointment the and tribunal international an of creation the behind politics the and principles legal immunity ereign Sov norms. law international violating prosecutedfor be would U.S. the See security/issues/iraq/attack/law/2006/0825bushstandtrial.htm. http://www.globalpolicy.org/ 2006, 25, OneWorld, Prosecutor,”August Trial,Nuremberg Stand Says Both Should Saddam and “Bush Glantz, on See Council. Security UN the of permission without wars gressive” King, Pacific Citize Pacific All members of the armed forces take an oath to protect and de and protect to oath an take forces armed the of members All The Legacy of Nurembergof Legacy The n , August 30, 2006, http://news.newamericamedia.org/ 2006, 30, , August

http://www.truthout.org/docs_2006/0610A.shtml. “ Oaths of Enlistment and Oaths of Office,” U.S. , 338. It is highly unlikely,highly is It 338. , however, that The New Yorker The WeeklyTheStandard Nova Law Review , June 25, 2007,

Aar 25 ------

From Heart Mountain to Iraq 93 , ------27 not not ,

does does , , January

American Kevin R. ,

Ziemeniak v. v. Unger YES! Magazine , Oct. 7, 2007, http://se , 236. , 14(1995). It is unlikely that the U.S. Applying the Lessons of Nuremberg,” Applying the Lessons of Nuremberg,” 15(1999), citing

Ibid. Pennsylvania State International Law Review Law International State Pennsylvania Seattle Post-Intelligencer This would entail creation of an international Iraq war (C.M. 1989). 235. 235. Intimidated and confused, he participated in the execution of One speculative question not directly relevant to Watada’s defense is defense Watada’s to relevant directly not question speculative One

. 349 Aaron Aaron Glantz, “Mistrial Declared in Court-Martial of Lieutenant Who (2001). Erdemovic refused. His superiors threatened, “If you don’t wish wish don’t you “If threatened, superiors His refused. Erdemovic (2001). Free speech, as guaranteed by the First Amendment, U.S. Constitution U.S. Amendment, First the by guaranteed as speech, Free Chaney, “Pitfalls and Imperatives: Chaney, Martha Baskin, “The Case of Lt. Ehren Watada,” tenced him to ten years in prison. prison. in years ten to him tenced Justice of Military Code Uniform The form. in limited military in the exist (UCMJ), Department of Defense and regulations, the Constitution do to do it, stand in the line. . .and give others your rifle so they can shoot you. you. shoot can they so rifle your others give .and . line. the in stand it, do to Ibid., a resisted second later Erdemovic time for reflection, 1,200 civilians. With for a target became and subsequently Muslims to 500 additional kill order the for Tribunal Criminal International the before trial his In assassination. de that found tribunal the humanity, against crimes for Yugoslavia former spite had his Erdemovic earlier complied later with resistance, manifestly sen The tribunal his and duty violated to orders superior disobey. illegal stance, in Croatia in 1995, Bosnian Serb army officers ordered twenty-three- ordered officers army Serb Bosnian 1995, in Croatia in stance, Mus thousand a over slaughter to unit his and Erdemovic Drazen year-old “Ar Lippman, R. Matthew Dr. See invasion. Serb a during seized men lim Scope and Development The Law: Humanitarian War: of Law the on ticle Defense,” Orders Superior the of 20 think this quintet of experts is a squad of knee-jerk, one-note liberals. . .all . liberals. one-note knee-jerk, of squad a is experts of quintet this think five [scholars including Falk] also agreed that the war in Afghanistan in deed met the criteria even for if a some ‘legal isolated war,’ actions might have later violated the laws of peace and warfare.”) Watada.” 1st Lt. Ehren Aoyai-Stom, “Exclusive: One on One With Sarah Olson, Causes“War Air Force Sergeant to Change Course,” Anti April 26, 2007, http://antiwar.com. war.com, History also demonstrates the stark consequences of resistance. For in See Refused To Serve In Iraq, Guerilla News Network,” Februaryhttp://gnn.tv/articles/2915/Reprieve_for_Officer_Who_Denounced_ 8, 2007), Immoral_War. Catch Do? to Lieutenant (Thoughtful) a What’s Watada: Paton, “Dean See 22 for the 21st Century,” attlepi.nwsource.com/opinion/334449_Watada07.html. (“Lest anyone crimes tribunal—something not presently contemplated. See Dickinson Journal of International Law American in military an court for follow would have Watada prosecuted ing a general order to deploy. See Gary D. Solis, “Obedience Forums,” American in of Application Judicial Orders War: of Law the and University International Law Review M.J 22, 2007, http://www.yesmagazine.com/article.asp?ID=1619. Ibid would have whether been Watada prosecuted if he had obeyed the order to deploy to Iraq. If Watada had complied with the order, in hetheory, international under tribunal international an in prosecution possible faced law principles.

107. 100. 104. 105. 106. 103. 101. 102. 94 Amerasia Journal 2007 110. 108.

109. 111. Ibid., Justice Ibid. Ibid. Choy, rumsfeld-generals_x.htm/. April15,2007, http://www.usatoday.com/news/washington/2006-04-13- Vanden Brook, “List Of Defense Secretary’s See Critics Get Longer,” comments. disgraceful” and “disrespectful making for officers sure dissident generals into silence. But no charges were filed against these Rumsfeld’sleadership. The Defense Secretary and military sought to pres disparagedandSecretaryDefenseDonald warIraqof the conductofU.S. the opposed publicly pensions) collecting while UCMJ the to subject are view/1039/74 Educate,”& Thank YouLt. Watada, See officers. retiredmilitary by cisms criti public harsh recent to response mild government’s the given tion” prosecu vindictive and selective “clearly charges the labeled supporters His comments. disgraceful” “disrespectful and making for officer an ing the WatadaofviewsForces.Armed chargedwasconductwith unbecom representthe to pretend or duty; on while or uniform in while out speak make “contemptuous remarks” about members of their chain of command; review/1980/may-jun/moran.htm Review, Moran, “Free Speech, the Military, and the National Interest,” on free expression are only partially restrictive. See generally Majorcurbs MilitaryFelixpublicly. speaking F. from military the of members prohibit Captain Bruce Yamashita, Yamashita, Bruce Captain emphasis added. (Honolulu:UniversityofHawaiiPress, 2003). Watada, Resister May-June 1980, / (accessed Feb. 28, 2007). Several retired generals (who (who generals retired Several 2007). 28, Feb. (accessed ,

emphasis added. http://www.airpower.au.af.mil/airchronicles/au Fighting Tradition: A Marine’s Journey to to Journey Marine’s A Tradition: Fighting l . In short, military personnel may notmilitaryshort,personnel mayIn . http://www.thankyoult.org/content/ “ Talking Points—How to RespondTalking to Points—How Air University USA Today,

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