Reply #14: This is pretty huge and very different

[tomg]

Lt. Watada is not going for a Conscientious Objector status, which is based on religious opposition to war. There are two kinds - one is CO 10 and the other is CO 1AO. The first is refusal to serve in any capacity; the second is refusal to serve save in non-combatant capacity. Under current law, one cannot object to the morality of a particular war.

What is different about this is that Lt. Watada is specifically not claiming CO status. He is objecting to the war on the grounds that it is an illegally constituted war. In essence, his refusal to be deployed goes to the core of the legality of this war. He is claiming, from what I have read, that to be deployed and to take part in this war would make him liable to war crimes. This is a very different legal and ethical tack for a war resister. Watada's claim about the war is that "It violates the Constitution and the War Powers Act that limits the President in his role as Commander in Chief from using the armed forces in any way he sees fit."

The only case I have heard of that is even in this ballpark is the Gillette case back in 1971 where Gillette applied for CO status based on his objection to the morality of the Vietnam War, but moral and religious objection to a particular war was not granted and Gillette did two years in jail. The ruling on Gillette, I think, could play a part in Watada's case. In Gillette, it was decided that one cannot be a SCO - Selective Conscientious Objector - because it would allow for a kind of selective disobedience and undermine the judgment of the nation as to what constitutes a just war, as opposed Conscientious Objection being a general principle applied to all wars (more complex than that but I'm not a lawyer, just a CO 1).

edit: I am not looking at the mistrial issue, but the original claim, but the mistrial claim itself is also pretty huge.