Conscientious objection - a civil right not to participate in an illegal war

Should citizens of the United States be legally exempt from paying that portion of their federal income taxes that would be applied to the Department of Defense budget in a time of war if a citizen is a conscientious objector to war:

1. as determined by the same legally adopted criteria applied to conscientious objectors in the military, which is “a person who objects to participation in all forms of war, and whose belief is based on a religious, moral or ethical belief system”; or
2. because the legality of a war is in doubt, that within a citizen’s conscionable understanding, he/she believes the war violates the Constitution and/or international treaties ratified by the US Congress and signed by the President into law.

Unknown to most Americans, there is a movement to address this question in regard to the first already established definition of conscientious objector. The National Campaign for a Peace Tax Fund is lobbying for a re-introduction of the Religious Freedom Peace Tax Fund Act into the 109th Congress. This proposed legislation has roots going back to 1971. However, it is centered upon the affirming the religious freedom of taxpayers who are conscientiously opposed to participation in all wars. Current legislative efforts do not propose to expand the idea to objections on the basis of a war being carried out in violation to the laws of the nation.

Where does that leave people opposed to our nation’s illegitimate military actions in other nations, most particularly the current war in Iraq? We are essentially left to the conscientious decision to either engage in forms of protest while submitting to the state and/or commit acts of civil disobedience.

Henry David Thoreau is often thought of as the first champion of civil disobedience. In 1849 his essay titled Resistance to Civil Government was published. Very much like today’s antiwar activists, Thoreau was concerned about the legitimacy of a war waged by his nation and the tax dollars he paid to support it.

The Mexican-American War broke out in 1846. When President James K. Polk asked Congress to declare war, he claimed that Mexico had “invaded our territory and shed American blood upon the American soil.” The battle he referred to actually took place near the Rio Grande River, today the border between Texas and Mexico, but at the time it was land both nations claimed. Many Americans believed Polk deliberately provoked the Mexicans by sending troops into territory the nation understood was between the disputed boundaries.

Thoreau wrote that the war was “the work of comparatively a few individuals using the standing government as their tool”. He refused to pay taxes as a symbolic gesture of opposition to the war. His act of “civil disobedience” led to his arrest and a night in jail.

Although Thoreau acted alone, the collective goal of civil disobedience is aimed at providing a legal remedy to the system and laws believed to be unjust. The civil rights movement of the 60s, led by Martin Luther King, and Mahatma Gandhi’s independence movement in India, are two of the most successful examples of the power of civil disobedience to accomplish its objectives.

Today, as the war in Iraq moves into its fifth year, many Americans continue to express opposition to our government’s continued funding of the war. There is a call by many to engage in acts of civil disobedience, to act upon our conscience and risk arrest, with the obvious goal of expediting an end to the war and occupation.

Within the military ranks there has been one commissioned officer who has followed his conscience and acted in a civilly disobedient manner. In June 2006, Lieutenant Ehren Watada publicly stated his intentions to refuse orders to deploy to Iraq.

Watada did not seek conscientious objection status. He understood that he did not conform to the narrow legal definition of a person who objects to participation in all forms of war based on a religious, moral or ethical belief system. His requests to resign his commission and to serve in Afghanistan were both denied.

Watada elected to refuse orders to deploy based on his belief that the war violated the Nuremberg Principals, which are adopted into US law through ratification of the United Nations Charter. In doing so, he recognized that he could be held accountable for his actions through court martial proceedings and risked facing several years in prison.

Principle VI of the Nuremberg Principals establishes a “Crime Against the Peace” as the “Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances” and “Participation in a common plan or conspiracy for the accomplishment of any of the acts”.

Watada claimed that the Iraq war constituted a crime against the peace because it was both a war of aggression and it violated the UN Charter. He exercised what he believed to be his moral responsibility to refuse orders to participate in the war. Principal IV states: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

The court martial took place in February, but prior to the actual trial, Watada was denied the ability to present his defense that the war was illegal. Witnesses with expertise in US and international law were prohibited from testifying. The military judge, LTC John M. Head, ruled that, based on precedence established in the Court of Military Appeals “an accused may not excuse his disobedience of an order to proceed to foreign duty on the ground that our presence there does not conform to his notions of legality”. He concluded in the pretrial ruling that the order to deploy was lawful.

The court martial ended in a mistrial over the disagreement in meaning of a pretrial stipulation in which Watada admitted to the facts of the case, that he did disobey orders and miss movement to deploy, and that he spoke publicly about the reasons for his actions. The judge attempted to bind the stipulation into an admission of guilt, whereas Watada maintained his innocence of the basis that his moral beliefs dictated his duty to disobey what he believed were illegal orders.

It would seem that there is no purpose to the Nuremberg Principals if, as Judge Head stated in his decision, that the order to deploy soldiers is a nonjusticiable political question. What soldier can take a stand against the war’s legal merits if the matter is left to political arena? And the question of moral choices remains relevant beyond that of a conscientious objector. It clearly reaches in the realm of law and order in a civil society and the measuring of one’s conscience in regard to established laws.

In his essay on civil disobedience Thoreau asks us to consider how to respond to what we believe are unjust laws. “[S]hall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?

Is it sufficient to wonder about this in terms of either/or? Does civil disobedience alone lead to a legal remedy to undo the unjust laws?

While leaders like Gandhi and King were indeed jailed more often and more seriously than Thoreau, and had followers jailed as they were, their movements also inspired great sympathy for their cause that contributed to the shift in public conscience. Collectively these brought about the independence of India and the Civil Rights legislation in America that Gandhi and King strived for.

The point is that civil disobedience does indeed have a role in bringing the Iraq war and occupation to an end. But alone it will not provide for a legal basis for soldiers and citizens to object to this or future wars on the basis of the failure of our government to abide by our nation’s laws and the international laws America has agreed to abide by.

The bounds of conscientious objection need to be expanded, for military and civilians alike. The law needs to include the right to refuse to participate on the moral belief that just laws are being violated, consistent with the Nuremberg Principals for which LT Ehren Watada is taking a noble and courageous stand.

Congress isn’t prepared to consider such changes to the law. When we consider that the granting of conscientious objector status to civilians has failed to become law for 35 years, it’s clear that without a people’s movement, our government will continue to have the power to force submission to their actions regardless of our moral and ethical beliefs by threatening imprisonment or monetary penalties that few are willing to risk.

Tax resistance not be civil disobedience, it should be a civil right, for a war that violates the laws of our country. This won’t change without widespread public support, which first requires awareness and education to the relatively simple Nuremberg Principals and the limits of recognized conscientious objection. How do we reach the general public? Would such issues and questions be appropriately asked of the American public through the ballot box?