"The moment we first sentenced German service members for not disobeying orders that they “should have known were illegal” we accepted that the responsibility to determine which orders are legal and which illegal rests in the conscience of the service member.
It also, therefore, holds true that to punish service members who acted on their conscience-with plausible backing from documents and prominent figures in international law-is not only unjustifiable and an injustice to those individuals, but sends a dangerous message to our military: that when given an order they believe to be illegal they are in a catch-22—they can be prosecuted if they obey; and they can be prosecuted if they don’t .
Do we really mean to have the armed foot soldier obey orders blindly in our name…..and be the fall-guy too?
Do we really trust our government more than the moral compass of our sons and daughters in uniform?"
-excerpt from an essay by Pablo Paredes
The conviction rate for Courts Martial is something over 97%. That being the case, preparing for a Court Martial has more to do with what will be presented at the sentencing phase as mitigating circumstances than an actual defense of the charges.
Add to that the fact that Pablo did, indisputably, miss movement; in plain English, Pablo did, in fact, fail to deploy on the morning of December 6th; and that Pablo made the extremely difficult (and honorable) decision to plead 'not guilty', thereby forsaking any pre-trial deals that might have been made for a light sentence; and one can see why there was a general feeling amongst us that Pablo was going to jail.
Incredible occurrences, however, would turn our foreboding into elation and give us to believe that we had been witness to an historic case that could soon become pivotal in legitimizing the G.I. Resistance Movement in this country.
These occurrences included the selection of arrogantly inept attorneys for the 'government'; the appointment of Sherry Breland as Pablo's JAG who was not only outstanding but who willingly melded with NLG attorney Jeremy Warren into a truly formidable defense team; and, most amazing of all, the assignment to the case of Lt. Cmdr. Robert Klant, who is....an objective military judge.
The prosecution's decision to call a Navy "lifer" (29 years in) and student at the Thomas Jefferson School of Law was another such occurrence. This witness, after learning that Pablo and his lawyer would appear at a school event, had taken it upon himself to contact Trial Services on base, ask for Pablo's prosecutors, and offer to take notes at the event. Wholly unimpressive as a witness, when asked if he believed in free speech, he answered, "well....yes, at certain times and under certain circumstances" (one can only hope that such blatant ignorance of the fundamentals of democracy bodes badly on his capacity to pass the bar.)
While his testimony proved unimportant, the fact that he had been called was pivotal for it all but ensured the defense's right to call Marjorie Cohn to rebut. Dr. Cohn was not only present at the event in question, but is a renowned international law expert and a fierce opponent of the war in Iraq.
Waiting for Marjorie's testimony included an endless parade of ineffectual witnesses; pompous, moralistic, and largely unsubstantiated conclusions put forth by the prosecution; a ruling to drop the charge of 'unauthorized absence'; Pablo's conviction for missing movement; and the judge's rulings on various motions which set the stage for the sentencing phase of the proceedings.
Judge Klant kept a tight rein on the Defense's questioning of Marjorie Cohn; allowing only that which spoke to the reasonableness of Pablo's belief that the Iraq war is illegal. But when the attorney for the government began his cross-examination, the judge gave him plenty of rope with which to hang himself - and hang himself he did.
First he carefully elicited from Marjorie the legal basis, grounded in both international and domestic law, of her conclusion that not only is the war in Iraq illegal and Pablo's conclusions to that effect thereby reasonable, but that Pablo was actually duty bound to refuse to board his ship. Next he extrapolated out to "any seaman recruit's" ability to draw the same conclusions. Clearly of the belief that Marjorie's agreement was conjuring up visions of mass mutiny in the judge's mind, and assuming that such visions would convince the judge that harsher, rather than lighter, sentencing was in order; the prosecutor did not stop with the example of Iraq. He triumphantly referenced other published works of Marjorie's concerning the illegality of the wars on Afghanistan and Yugoslavia and again demanded that she specify if she believed that any seaman recruit would be justified in refusing orders due to his/her belief that these wars were illegal as well. In all three cases, Marjorie complied with a detailed explanation of why the war in question was illegal and why the seaman recruit would be obligated to refuse to participate in them once he found them as such.
After a 20-30 minute eternity that left us all in a stupor of disbelief that the war's legality had just been debated in a military court, on the record, and had lost, badly, the attorney for the prosecution sat down.
And then the judge said, "I believe the government has just successfully proved that any seaman recruit has reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
We were stunned, beyond ecstatic. Moments later the judge asked if the prosecution would like to reserve the right to recall Dr. Cohn. The pitiful tone of the attorney’s "no, your honor" caused a spontaneous eruption of laughter -which the judge chose to allow, reportedly chuckling himself.
On the way to court the next morning, Pablo told me he had decided against reading his prepared statement in court. He felt that so much of what he had to say had been said by Marjorie, and that reading it would, perhaps, only incur the judge's wrath and a harsher sentence. I told him that I had re-read it the night before and thought that, though he had written it prior to the start of the proceedings, it served as a rebuttal to several of the prosecution's points. (I thought better of reminding him that it was, in my opinion, the best thing he'd ever written by far-I didn't want him to take a chance on more jail time either.)
He read the statement.....and it was exceptional. A brief excerpt:
I am convinced that the current War on Iraq is illegal...I believe as a member of the armed forces, beyond having a duty to my chain of command and my President, I have a higher duty to my conscience and to the supreme Law of the land. Both of these higher duties dictate that I must not participate in any way, hands on or indirect, in the current Aggression that has been unleashed on Iraq.
My lawyers felt it was ill advised for me to plea not guilty...But pleading guilty is more than admission of an action, it is also acceptance that that action was wrong and illegal. These are two things I do not accept. I feel...my actions...were in fact, my duty as a human being and as a service member....
.....I think we would all agree that a service member must not participate in random unprovoked illegitimate violence, simply because he is ordered to. What I submit to you is that I am convinced that the current War is exactly that. So if there is anything I could be guilty of, it is my beliefs. I am guilty of believing this war is illegal. I am guilty of believing war in all forms is immoral and useless, and I am guilty of believing that as a service member I have a duty to refuse to participate in this War because it is Illegal.
Pablo's sentence was like the non-judicial punishment that someone whose only offense was missing movement would be expected to receive. The judge chose not to punish Pablo's political speech. He sentenced Pablo to 2 months of restriction to base and busted him down to the Navy's lowest rank. The 3 months 'hard labor' appears largely to be a bone thrown to the media-all it amounts to is extra duty and runs concurrently with the 2 months' restriction.
Let's call this Part One......there's so much more to write on the impact Pablo's case has yet to make.
by Lynn Gonzalez; San Diego Military Counseling Project; May 30, 2005
Lynn Gonzalez is a counselor with the San Diego Military Counseling Project, part of the national G.I. Rights Hotline network. She has worked closely with Pablo Paredes since Dec. 6th of last year; when he refused to board the U.S.S. Bonhamme Richard and participate in transporting Marines to Iraq.