The Case of Pablo Paredes
by Lynn Gonzalez; San Diego Military Counseling Project; May 30, 2005
"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.
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.
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