02/09/2007 04:23 pm ET Updated May 25, 2011

Unlawful Order? Iraqi Man's Murder Shines Light on Watada Defense

Of course the big news from the military court martial front this week was the surprise mistrial in the case of Lt. Ehren Watada. But the less publicized case of Marine Cpl. Trent Thomas, accused in the kidnapping and murder of an Iraqi civilian, presents an interesting parallel to Watada's legal defense, while raising disturbing questions about the government's efforts to undermine it.

Lt. Watada refused an order to deploy to Iraq, a statement of fact so undisputed that the defendant signed a stipulation that he would not contest it. Prosecutors understood this stipulation to be a signed confession, and thus presented little evidence otherwise supporting the charge. But Lt. Watada insists that the deployment order was unlawful, because the war itself is illegal under U.S. and international law. Under his oath of service, Lt. Watada argues, he has both a legal and moral obligation to refuse to follow an unlawful order. Admitting to the facts, Lt. Watada told the court, was not an admission of guilt. It was this failure to achieve a "meeting of minds" between Lt. Watada and the prosecutors that the presiding judge cited in throwing out the stipulation and instigating a mistrial.

Lt. Watada's legal defense has always relied on the argument that he cannot be convicted of refusing to follow an unlawful order -- a defense the judge did not allow his attorney to present. Prosecutors have argued that Lt. Watada should not be allowed to put the war itself on trial, even if that is his only means of proving his innocence. Our military, they argue, cannot function without strict discipline, and strict military discipline requires that soldiers unflinchingly follow their commanders' orders. In refusing to allow him to argue the illegality of his deployment order, the government asserts that Lt. Watada had no legal right to question it.

Compare that to the case of Cpl. Trent Thomas, who after having an "epiphany" decided to put himself at risk of the death penalty yesterday, by withdrawing his guilty plea in the brutal killing of an Iraqi civilian.

Cpl. Trent Thomas, 25, pleaded guilty as part of a pretrial agreement to several charges Jan. 18, including kidnapping and murder, in the slaying of 52-year-old Hashim Ibrahim Awad in Hamandia last year. But Thomas said Thursday that he no longer believes he's guilty and was following a lawful order.

''Sir, when my country gives me an order, I follow it,'' Thomas told the judge, Lt. Col. Tracy A. Daly, adding that his squad leader and his lieutenant gave the order.

Cpl. Thomas's defense rests on the assertion that he was issued a lawful order, whereas Lt. Watada's defense rests on the assertion that he was not.


In a capital offense such as this, one can only assume that the government will give Cpl. Thomas the opportunity to present his evidence in court, but even if he succeeds in proving he was following his commanders' orders, it is hard to imagine that he could be fully exonerated for his actions. This question of whether an order is lawful or not is not an esoteric legalism concocted out of thin air by Lt. Watada and his attorney; it is an issue routinely examined by military courts in cases such as that of Cpl. Thomas. Cpl. Thomas and his cohorts allegedly kidnapped a man, forced him into a hole, shot him, and then attempted to make it look like the victim was an insurgent planting a bomb, by placing an AK-47 and shovel next to his body. Perhaps his squad leader and lieutenant really did order him to execute a murder... but that doesn't make it a lawful order.

Critics of Lt. Watada have long argued that this is an open and shut case -- that he refused to follow an order, and thus should pay the penalty for his insubordination. But if soldiers like Cpl. Thomas can be convicted and punished for following an order, shouldn't the alleged unlawfulness of an order be a valid defense against charges of insubordination? And if so, then shouldn't the court permit Lt. Watada to present evidence of the illegality of our war in Iraq, the very basis of his claim that his order to deploy was unlawful?

Lt. Watada and his attorney have no illusions that they are likely to convince a military jury that the United States is in the midst of executing an illegal war in Iraq. But if he is denied the right to defend himself, it sets a very dangerous precedent: either any order to act unlawfully places a soldier at risk of court martial, regardless of his actions, or... we are willing to accept "I was only following orders" as a valid legal defense to obeying any order, no matter how heinous.

[Read more from David Goldstein at]